Appeal from the United States District Court for the Northern District of California. D.C. No. CR-92-00535-MHP. Marilyn H. Patel, District Judge, Presiding. Original Opinion Previously Reported at:,.
Before: Joseph T. Sneed, Mary M. Schroeder, and Stephen S. Trott, Circuit Judges. Opinion by Judge Trott.
Order AND AMENDED OPINION
Cyril T. Hanna appeals his jury conviction and sentence for unlawful possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). Hanna contends his conviction should be reversed because the government failed to produce (1) the grand jury testimony of the arresting officer, and (2) pretrial statements made by that officer that may have been inconsistent with his trial testimony. As grounds for his contentions, Hanna relied on (1) the Jencks Act, 18 U.S.C, § 3500(e)(3); (2) Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963); and (3) his pretrial discovery request. Hanna argues also that 18 U.S.C. § 922(g)(1) is unconstitutional both on its face and as applied to him, and that his sentence must be reversed because the district court erred in calculating his criminal history points. We have jurisdiction under 28 U.S.C. § 1291, and we vacate Hanna's conviction and remand to the district court for a determination of whether the government failed to disclose any impeachment evidence which could have been used to impeach the primary government witness.*fn1
Hanna's conviction was based primarily on the testimony of the arresting officer Kitt Crenshaw. As the government admitted during oral argument, the credibility of Sgt. Crenshaw was the key issue in the case. The trouble leading to this appeal resulted from a significant discrepancy between Sgt. Crenshaw's testimony and the police report he filed after arresting Hanna. Crenshaw stated in the police report:
KNOWING THAT HANNA WAS WANTED IN CONNECTION WITH AN ATT. MURDER CASE, I DETAINED HIM FOR INVESTIGATION. I CUFFED HANNA BEHIND HIS BACK, WHILE DOING SO I FELT AN OBJECT IN HIS BACK PANT AREA.
I RADIOED FOR ASSISTANCE, OFF. HENRY #789 ARRIVED, I REMOVED THE OBJECT WHICH I DISCOVERED TO BE A SKI MASK, INSIDE THE SKI MASK WAS (E.1) PISTOL, LOADED WITH (4) LIVE ROUNDS, WITH ONE IN THE CHAMBER.
At trial, however, Sgt. Crenshaw testified to a different sequence of events leading to the discovery of the gun. The differences between his testimony and his report are such as to suggest strongly that the report was deliberately written in a self-serving fashion to obscure precisely when, where, and how Sgt. Crenshaw took the pistol from Hanna.
According to this new version, Sgt. Crenshaw only performed a "real light cursory search" as he was handcuffing Hanna. Although during this search Sgt. Crenshaw felt a bulge in the back of Hanna's shirt in the area of his waist, he did not suspect it was a weapon. A transportation van arrived within a matter of minutes and Hanna was placed inside the unit without being thoroughly searched. Sgt. Crenshaw testified that after they had travelled a few blocks, he noticed Hanna perspiring and moving around as though he were trying to conceal something. Sgt. Crenshaw ordered the van to stop and entered the rear of the van to check on Hanna. Only then did he discover concealed on Hanna's person a Raven .25 caliber semiautomatic pistol wrapped in a ski mask.
Prior to trial, Hanna filed a motion for discovery requesting the production of, among other things: (1) "any statement, whether oral or written, made by any individual whom the government intends to call as a witness for trial, which is inconsistent with the witness' anticipated testimony;" (2) "all statements made by any witness for the government in this case - 'Jencks Act' Statements;" (3) "all information in whatever form, source or nature which is favorable to the defense . . . through potential impeachment of governmental witnesses or contradiction of government evidence;" and (4) "the disclosure of grand jury testimony . . . [including] testimony of key witnesses who are critical to the government's case." Hanna's theory of defense at trial was that the pistol was never in his possession and that he was being framed by Sgt. Crenshaw.
Hanna contends the government failed to produce prior to trial the grand jury testimony and other statements of Sgt. Crenshaw, in violation of the Jencks Act, 18 U.S.C. § 3500(e)(3). We need not reach the merits of this claim because Hanna did not properly raise it before the district court.
The Jencks Act provides in pertinent part:
(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.
(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness testified. . . .
(e) The term "statement", as used in subsections (b), (c), and (d) of this section in relation to any witness ...