United States v. Denise Robertson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-10385

Plaintiff-Appellee,

D.C. No.

v. 2:14-cr-01466-

JJT-1

DENISE ROBERTSON,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Arizona

John Joseph Tuchi, District Judge, Presiding

Argued and Submitted January 8, 2018

San Francisco, California

Filed July 20, 2018

Before: J. Clifford Wallace, Johnnie B. Rawlinson,

and Paul J. Watford, Circuit Judges.

Opinion by Judge Wallace

2 UNITED STATES V. ROBERTSON

SUMMARY *

Criminal Law

The panel affirmed convictions for theft of mail by a

postal employee in violation of 18 U.S.C. § 1709, and

possession of stolen mail in violation of 18 U.S.C. § 1708.

The panel held that the district court did not err in

denying the defendant’s motion to dismiss the indictment on

due process grounds based on the government’s failure to

preserve a video of a Postal Service employee parking lot.

The panel held that the district court’s finding that the

investigating agent did not act in bad faith was not clearly

erroneous, and that the exculpatory value of the video was

speculative.

The panel held that the district court did not abuse its

discretion by failing to instruct the jury on lost or destroyed

evidence as a sanction for the government’s failure to

preserve the parking lot video.

The panel held that the district court did not abuse its

discretion in ruling that a conversation between the

prosecutor and two investigating agents outside the

courtroom did not violate Fed. R. Evid. 615, which provides

that, at a party’s request, the court must order witnesses

excluded so that they cannot hear other witnesses’

testimony. Addressing an open question, the panel held that

Rule 615 prohibits a sequestered witness from not only

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

UNITED STATES V. ROBERTSON 3

attending a hearing or trial, but reading transcripts from it.

The panel held that the district court acted within its

discretion by determining that the appropriate sanction for

the government’s allowing two agent witnesses to review

transcripts of prior testimony was to allow the defense to

cross-examine the witnesses about their exposure to the

transcripts.

The panel held that the district court did not abuse its

discretion in denying the defendant’s request for production

of an agent’s notes under the Jencks Act. The panel clarified

that unless a defendant makes a threshold showing that notes

sought pursuant to the Jencks Act may qualify as a

“statement” under the Act, the district court is not obligated

to review the notes in camera before refusing to compel

production. The panel concluded that the defendant did not

make that threshold showing.

The panel rejected the defendant’s argument that the

district court’s disjunctive jury instruction on embezzlement

of mail by a postal employee – which allowed the jury to

convict her solely on a finding that “she came into

possession” of the mail, rather than a showing of both

entrustment and possession – was plain error. The panel

explained that the jury instruction tracked the language of

section 1709, and that the government may charge in the

conjunctive and prove in the disjunctive.

4 UNITED STATES V. ROBERTSON

COUNSEL

Celia Rumann (argued), Tempe, Arizona, for Defendant-

Appellant.

Peter S. Kozinets (argued), Assistant United States Attorney;

Krissa M. Lanham, Deputy Appellate Chief; Elizabeth A.

Strange, Acting United States Attorney; United States

Attorney’s Office, Phoenix, Arizona; for Plaintiff-Appellee.

OPINION

WALLACE, Circuit Judge:

Denise Robertson, a former letter carrier for the United

States Postal Service, appeals from her jury convictions for

theft of mail by a postal employee in violation of 18 U.S.C.

§ 1709, and for possession of stolen mail in violation of

18 U.S.C. § 1708. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.

I.

The United States Postal Service (USPS) is charged with

providing secure and reliable delivery of the mails to “bind

the Nation together” through the “correspondence of the

people.” 39 U.S.C. § 101. Robertson worked as a USPS

letter carrier assigned to the USPS Arcadia Station in

Phoenix, Arizona.

This case began when the USPS Office of the Inspector

General (OIG) began receiving complaints from customers

in the Phoenix area concerning gift cards that were mailed

but never reached the intended recipients. In June 2014,

USPS OIG Agent Patrick Longton investigated these

UNITED STATES V. ROBERTSON 5

complaints, and determined that Robertson might have been

involved. Longton came to this conclusion based on

evidence that (1) the missing gift cards were used by

Robertson’s adult daughter Melissa, who lived with

Robertson, and (2) the letters containing the gift cards had

been routed through the Arcadia Station on days Robertson

was on duty.

His suspicion piqued, Agent Longton decided to begin

surveillance of Robertson as she performed her duties at the

Arcadia Station. On the morning of June 26, 2014, from a

concealed walkway inside the post office, Agent Longton

observed Robertson remove two greeting card-type letters

from a tray of mail not assigned to her route, and place those

letters with mail marked for her route. After Robertson left

to deliver her route, OIG agents arranged for the station

supervisor to place several “test letters” in the collection

hamper near Robertson’s work station. Test letters are

purportedly “real” letters used by the OIG to test the integrity

of suspected postal employees.

Upon Robertson’s return from her route, OIG agents

made a video recording of her on the work floor. The video

shows Robertson walk to and look through the collection

hamper for outgoing mail on three different occasions,

during which she removed several greeting card-type letters,

including some of the OIG test letters. The video shows

Robertson carry the letters back to her work station, bundle

them, place the bundles in a large purse, and cover the

opening of the large purse with a smaller purse. Shortly after

Robertson’s third trip to the collection hamper, OIG agents

left their concealed station, found Robertson on the work

floor, and arrested her. They did not apply handcuffs.

After arresting Robertson, the agents asked her to bring

her belongings to the station manager’s office. Robertson

6 UNITED STATES V. ROBERTSON

brought her purse into the office on a plastic mail tray and

placed the tray and her purse on a postal cart against the wall.

Robertson declined to be interviewed, but consented to a

search of her purse. Agent Longton and another agent

searched Robertson’s purse, but found no mail. Agents also

searched the work floor for the missing bundles, to no avail.

After the search, Robertson was released, and her vehicle,

which was parked in the employee parking lot, was secured

as evidence.

That night, Agent Longton and other OIG agents took

shifts surveilling Robertson’s car until they could obtain a

warrant to search it. During his shift, Agent Longton briefly

returned to the station manager’s office to retrieve

Robertson’s purse. After a quick search of the office, he

found two bundles of mail at the bottom of the hamper of the

postal cart on which Robertson had placed her purse earlier

that day. The recovered mail consisted of more than

20 greeting card-type letters, including some of the OIG test

letters.

The next day, June 27, 2014, OIG agents executed a

search warrant on Robertson’s car, recovering 52 pieces of

mail. Much of the recovered mail was postmarked June 25,

2014 and was scheduled for delivery on Robertson’s route

on June 26. The recovered mail also included a test letter that

agents had placed in a neighborhood collection box on

Robertson’s route the previous day.

II.

On November 5, 2014, a grand jury indicted Robertson

on seven counts of theft of mail by a postal employee under

18 U.S.C. § 1709, and seven counts of possession of stolen

mail under 18 U.S.C. § 1708. Prior to trial, Robertson moved

to dismiss the indictment, arguing that Agent Longton failed

UNITED STATES V. ROBERTSON 7

to preserve security camera footage of the Arcadia Station

employee parking lot from the day of her arrest. Robertson

asserted this video footage “would have exonerated [her]

completely.” The district court denied the motion after an

evidentiary hearing, finding no bad faith on the part of the

government.

The trial began on October 27, 2015, and lasted for

13 days. Robertson’s defense was that Agent Longton was

not a credible witness; that it would have been nearly

impossible for her to remove mail from her purse and drop

it into the postal cart while in the presence of OIG agents

after her arrest; and that the evidence was insufficient to

prove that the mail Robertson was alleged to have embezzled

was sorted or processed at the Arcadia Station at a time

Robertson was at the station.

During the trial, Robertson requested a jury instruction

on lost or destroyed evidence based on the government’s

failure to preserve the parking lot video. The district court

denied the request. Later during the trial, Robertson

requested production of Agent Longton’s notes from his

initial conversation with a customer who reported one of the

missing gift cards. The district court denied that request as

well.

The jury convicted Robertson on all counts. The district

court sentenced Robertson to concurrent terms of nine

months of imprisonment on each count, followed by three

years of supervised release. The district court also ordered

Robertson to pay a special assessment and restitution.

Robertson timely appealed.

8 UNITED STATES V. ROBERTSON

III.

Robertson argues we should reverse her convictions on

the following grounds: (1) the district court erred in denying

her motion to dismiss the indictment; (2) the district court

abused its discretion by failing to give a jury instruction on

lost or destroyed evidence; (3) the district court erred in not

imposing an appropriate sanction for the government’s

violation of the court’s witness exclusion orders; (4) the

district court abused its discretion by not compelling

production of Agent Longton’s notes under the Jencks Act,

18 U.S.C. § 3500; and (5) the district court’s jury instruction

on theft of mail by a postal employee misstated the law. We

address these arguments in turn.

A.

We begin with Robertson’s argument that the district

court erred in not dismissing the indictment on due process

grounds for the government’s failure to preserve video of the

employee parking lot. The district court denied Robertson’s

motion on the ground that the government did not act in bad

faith, and that the exculpatory value of the video was

speculative. Robertson contends the parking lot video, which

was erased as part of an automatic 30-day deletion process,

would have “conclusively shown” who had access to her

vehicle the day she was arrested.

“We review de novo a due process claim involving the

government’s failure to preserve potentially exculpatory

evidence.” United States v. Flyer, 633 F.3d 911, 915–16 (9th

Cir. 2011). “We review factual findings, such as the absence

of bad faith, for clear error.” Id. at 916.

The government’s failure to preserve potentially

exculpatory evidence rises to the level of a due process

UNITED STATES V. ROBERTSON 9

violation only if the defendant shows that the government

acted in bad faith. Arizona v. Youngblood, 488 U.S. 51, 58

(1988). “The presence or absence of bad faith turns on the

government’s knowledge of the apparent exculpatory value

of the evidence at the time it was lost or destroyed, because

without knowledge of the potential usefulness of the

evidence, the evidence could not have been destroyed in bad

faith.” United States v. Zaragoza-Moreira, 780 F.3d 971,

977 (9th Cir. 2015).

The district court’s finding that Agent Longton did not

act in bad faith was not clearly erroneous. Although Longton

was made aware of the possible existence of the parking lot

video, the record does not show he had knowledge of the

video’s apparent exculpatory value at the time it was deleted,

or that he knew of the automatic 30-day deletion process.

Longton testified that by the time he contacted the agency

responsible for the station’s external security cameras, the

parking lot video had been deleted as part that agency’s

normal procedures without him having viewed it. In

addition, the record supports a finding that the exculpatory

value of the parking lot video was speculative—Longton

testified that while the relevant security camera could show

in general where Robertson’s car was parked, it offered only

a partial view that would not have shown someone gaining

access to the trunk and, in any event, would not have allowed

conclusive identification of any specific individual seen on

camera. On this record, the district court did not clearly err

in finding Agent Longton did not act in bad faith. See United

States v. Sivilla, 714 F.3d 1168, 1172 (9th Cir. 2013)

(holding that the government did not act in bad faith in

failing to preserve evidence when the exculpatory value of

the evidence “was not obvious”); Cunningham v. City of

Wenatchee, 345 F.3d 802, 812 (9th Cir. 2003) (concluding

that a detective’s failure to gather potentially exculpatory

10 UNITED STATES V. ROBERTSON

evidence did not show bad faith where the value of the

evidence was “speculative”).

Robertson argues that Agent Longton’s conduct—that is,

his failure to obtain immediately the parking lot video as

soon as he was put on notice of its potential existence—is

itself sufficient to compel a bad faith finding. We disagree.

Longton testified he learned about the possibility of the

parking lot video when he saw it mentioned as part of the

postal union’s grievance against USPS management on

Robertson’s behalf. Neither Robertson nor her counsel wrote

to the OIG or to the government to preserve the video. Nor

did the union’s request explain how or why the parking lot

video might contain exculpatory evidence. At most, Longton

was slow to obtain evidence of speculative value of which

he had been indirectly put on notice. This is insufficient to

establish that Longton made “a conscious effort to suppress

exculpatory evidence” such that bad faith can be inferred

from his conduct alone. Zaragoza-Moreira, 780 F.3d at 980,

quoting California v. Trombetta, 467 U.S. 479, 488 (1984).

Robertson also argues the district court’s failure to find

bad faith contravenes our decision in Zaragoza-Moreira. In

that case, the defendant was arrested by border patrol

officers while standing in a pedestrian line for admission into

the United States after a pat down search led to the discovery

of drugs on her person. 780 F.3d at 974–75. During the

interview following her arrest, the defendant asserted she

was coerced into carrying the drugs, and that while standing

in the pedestrian line she tried to draw the attention of law

enforcement by making noise and moving around. Id. at

975–76. Despite defendant’s claim of duress, and her

insistence that her actions while standing in line supported

her claim, the agent who interviewed the defendant did not

preserve video of the pedestrian line. Id. at 976–77. We

UNITED STATES V. ROBERTSON 11

concluded that the district court clearly erred in not finding

bad faith under these circumstances, explaining that “[f]rom

the beginning to the end of Agent Alvarado’s hour-long

interview with Zaragoza, Zaragoza repeatedly alerted

Alvarado to her duress claim and the potential usefulness of

the pedestrian line video footage.” Id. at 979.

The instant case is distinguishable from Zaragoza-

Moreira. In Zaragoza-Moreira there was no dispute about

the potential value of the unpreserved video evidence. The

agent in that case knew at the time she interviewed the

defendant that the pedestrian line was under constant video

surveillance and that the video was directly relevant to

defendant’s claim of duress. The government did not argue

that the video would not show whether defendant was

“making a lot of noises” and making herself “obvious,” as

she asserted. Id. at 978. By contrast, in this case, it is

completely speculative whether the parking lot video was

potentially useful to Robertson’s defense. As mentioned

above, Agent Longton testified that the relevant security

camera did not offer an unobstructed view of Robertson’s

car, and that it would not have been possible to identify

specific individuals seen on the video. In addition, unlike the

defendant in Zaragoza-Moreira, neither Robertson nor the

union made any affirmative assertion that would have put

Agent Longton on notice of the relevance of the video to

Robertson’s defense. Therefore, compared to the video at

issue in Zaragoza-Moreira, the exculpatory value of the

video here was almost entirely speculative. Robertson’s

reliance on Zaragoza-Moreira is unavailing.

The district court did not err in denying Robertson’s

motion to dismiss the indictment.

12 UNITED STATES V. ROBERTSON

B.

Robertson next argues the district court committed

reversible error by failing to instruct the jury on lost or

destroyed evidence as a sanction for the government’s

failure to preserve the parking lot video. “We review a

district court’s refusal to give an adverse inference

instruction, when properly raised by the appellant, for abuse

of discretion.” Sivilla, 714 F.3d at 1172. Under the abuse of

discretion standard, we ask first whether the district court

applied the correct legal rule, and then determine whether

the court’s application of the legal rule was either

“(1) illogical, (2) implausible, or (3) without support” in the

record. Id. at 1173.

Robertson argues the district court abused its discretion

by identifying the incorrect legal standard when it

considered her request for a lost or destroyed evidence

instruction. We disagree. The rule governing sanctions for

lost or destroyed evidence is found in the controlling

concurrence in United States v. Loud Hawk, 628 F.2d 1139

(9th Cir. 1979) (en banc) (Kennedy, J., concurring), reversed

on other grounds in United States v. W.R. Grace, 526 F.3d

499, 506 (9th Cir. 2008). In considering Robertson’s request

for a lost or destroyed evidence instruction, the district court

reviewed this circuit’s relevant model instruction and

comment, the first sentence of which quotes the Loud Hawk

balancing test as the appropriate standard. See Ninth Circuit

Manual of Model Criminal Jury Instructions, No. 4.18 (July

2010). Therefore, by reviewing this circuit’s model

instruction and comment, the district court ipso facto

identified the correct legal standard.

Because the district court identified the correct legal

standard, we may reverse only if its application of Loud

Hawk was “(1) illogical, (2) implausible, or (3) without

UNITED STATES V. ROBERTSON 13

support” in the record. Sivilla, F.3d at 1173. Under Loud

Hawk, an instruction concerning evidence lost or destroyed

by the government is appropriate when the balance between

“the quality of the Government’s conduct and the degree of

prejudice to the accused” weighs in favor of the defendant.

Loud Hawk, 628 F.2d at 1152. The government bears the

burden of justifying its conduct, while the defendant bears

the burden of demonstrating prejudice. Id.

In assessing the quality, or “culpability,” United States

v. Tercero, 640 F.2d 190, 192 (9th Cir. 1980), of the

government’s conduct, we consider whether the evidence

was lost or destroyed while in the government’s custody,

whether the government acted in disregard of the

defendant’s interests, whether the government was

negligent, whether the prosecuting attorneys were involved,

and, if the acts were deliberate, whether they were taken in

good faith or with reasonable justification. Loud Hawk,

628 F.2d at 1152.

Here, the government’s conduct, while not entirely

blameless, fell within a general range of reasonableness.

Although the parking lot video was automatically recorded

over while in the government’s custody, the government did

not act in disregard of Robertson’s interests because the

exculpatory value of the evidence was not apparent. In

addition, even if the better practice would have been for

Agent Longton to request the video sooner, it is significant

that neither the OIG agents nor the government attorneys

prosecuting the case participated in the events leading to the

loss of the evidence. See Tercero, 640 F.2d at 192

(concluding that the government justified its conduct with

respect to lost or destroyed evidence where there was “no

reason to suspect that the prosecutors themselves were

involved in the destruction of the [evidence]”). Rather, the

14 UNITED STATES V. ROBERTSON

video was erased as part of the 30-day automatic override

process of the Postal Inspection Service, a separate agency

not involved in the case against Robertson. In total then, the

government’s conduct may have been imperfect, but it was

not unreasonable or in bad faith.

We turn now to the second half of the Loud Hawk test,

the prejudice to the defendant. In analyzing prejudice, we

consider the centrality and importance of the lost evidence

to the case, the probative value and reliability of secondary

or substitute evidence, the nature and probable weight of

inferences and kinds of proof lost to the accused, and the

probable effect on the jury from the absence of the evidence.

Loud Hawk, 714 F.3d at 1152.

In this case, any prejudice to Robertson was minimal.

The parking lot video was not central to the case because the

government, with the exception of one test letter, did not

argue that any of the mail cited in the indictment was placed

in Robertson’s car on June 26, 2014. The nature of the

inferences and proof lost to Robertson also cuts against a

finding of prejudice because it is not clear whether the video

would have provided an unobstructed view of Robertson’s

car. Finally, the probable effect on the jury from the absence

of the video was not significantly prejudicial because

Robertson’s counsel was permitted, and did, argue before the

jury that Agent Longton failed to preserve the video. Under

these circumstances, and in light of the generally reasonable

quality of the government’s conduct, the district court did

not need to find that prejudice to Robertson required a lost

or destroyed evidence instruction under Loud Hawk. There

was no abuse of discretion.

UNITED STATES V. ROBERTSON 15

C.

Robertson next argues the district court erred by not

imposing an appropriate sanction for what she claims were

violations of Federal Rule of Evidence 615 by the

government. We review the district court’s determination of

the appropriate sanction for a Rule 615 violation for abuse

of discretion. See United States v. Hobbs, 31 F.3d 918, 921

(9th Cir. 1994).

Rule 615 provides, in relevant part, that “[a]t a party’s

request, the court must order witnesses excluded so that they

cannot hear other witnesses’ testimony.” Fed. R. Evid. 615.

This rule of exclusion applies to both pretrial evidentiary

hearings and to the guilt phase of the trial. United States v.

Brewer, 947 F.2d 404, 407–08 (9th Cir. 1991). The purpose

of a Rule 615 exclusion order is to “reduce the danger that a

witness’s testimony will be influenced by hearing the

testimony of other witnesses, and to increase the likelihood

that the witness’s testimony will be based on her own

recollections.” Hobbs, 31 F.3d at 921; see Fed. R. Evid. 615

advisory committee’s note to 1972 proposed rule (“The

efficacy of excluding or sequestering witnesses has long

been recognized as a means of discouraging and exposing

fabrication, inaccuracy, and collusion.”).

Robertson first challenges the district court’s ruling that

a conversation on day three of the trial between the

prosecutor, Agent Longton, and another OIG agent outside

the courtroom did not violate Rule 615. Robertson asserted

that she overheard the prosecutor and the agents discussing

“something to the effect that . . . they had messed up with the

fingerprints and the fingerprint examiner.”

The district court did not abuse its discretion in not

finding a Rule 615 violation. After the possible violation was

16 UNITED STATES V. ROBERTSON

brought to its attention, the district court questioned the

prosecutor and Agent Longton about the conversation, both

of whom told the court that the conversation concerned the

logistics of transporting the fingerprint examiner to the

airport. When asked directly by the court whether the

conversation related to the fingerprint examiner’s testimony

or anything case related, Agent Longton replied that it did

not. Robertson’s counsel herself stated “I am allowing for

the fact that it could be innocent and that we would all just

be more careful going forward.” Given the lack of specificity

of Robertson’s allegations, and the government’s

representation that witness testimony was not part of the

conversation, the district court did not abuse its discretion in

concluding the conversation did not violate Rule 615.

Robertson next argues the district court abused its

discretion by not imposing a more severe sanction when the

government violated Rule 615 by allowing two agent

witnesses to review transcripts of a pretrial evidentiary

hearing (at which Agent Longton testified) before the two

agents testified at trial. The district court stated that it was

not certain whether allowing the agents to review transcripts

constituted a Rule 615 violation, but that to the extent it was,

the appropriate remedy was to permit cross-examination of

the agents and allow the defense to address the issue in

closing arguments.

Before we explain why we conclude the district court’s

chosen sanction was not an abuse of discretion, we address

first an open question in our circuit relevant to Robertson’s

argument: whether Rule 615 prohibits a sequestered witness

from not only attending a hearing or trial, but reading

transcripts from it. The government and the district court

point out that Rule 615, by its terms, does not preclude

potential trial witnesses from reviewing transcripts of a prior

UNITED STATES V. ROBERTSON 17

proceeding before testifying. Under this view, there is no

Rule 615 violation for reviewing prior testimony from a

transcript so long as the witness was not in the courtroom to

hear that testimony.

In our view, an interpretation of Rule 615 that

distinguishes between hearing another witness give

testimony in the courtroom and reading the witness’s

testimony from a transcript runs counter to the rule’s core

purpose—“to prevent witnesses from tailoring their

testimony to that of earlier witnesses.” Larson v. Palmateer,

515 F.3d 1057, 1065 (9th Cir. 2008) (citation omitted). The

danger that earlier testimony could improperly shape later

testimony is equally present whether the witness hears that

testimony in court or reads it from a transcript. An exclusion

order would mean little if a prospective witness could simply

read a transcript of prior testimony he was otherwise barred

from hearing. Therefore, we join those circuits that have

determined there is no difference between reading and

hearing testimony for purposes of Rule 615. See United

States v. McMahon, 104 F.3d 638, 642–45 (4th Cir. 1997)

(affirming the district court’s conclusion that a witness

violated a Rule 615 exclusion order by reading daily trial

transcripts); United States v. Friedman, 854 F.2d 535, 568

(2d Cir. 1988) (recognizing that “the reading of testimony

may violate an order excluding witnesses issued by a district

court under Rule 615”); United States v. Jimenez, 780 F.2d

975, 980, n.7 (11th Cir. 1986) (concluding that a witness

violated a Rule 615 exclusion order by reading the testimony

of another agent witness from a prior mistrial); Miller v.

Universal City Studios, Inc., 650 F.2d 1365, 1373–74 (5th

Cir. 1981) (holding that providing a witness transcribed

portions of another witness’s testimony in preparation for his

court appearance constitutes a violation of Rule 615). A trial

witness who reads testimony from the transcript of an earlier,

18 UNITED STATES V. ROBERTSON

related proceeding violates a Rule 615 exclusion order just

as though he sat in the courtroom and listened to the

testimony himself.

In light of our clarification of Rule 615’s scope, the

district court’s suggestion that reviewing transcripts of prior

testimony cannot violate the rule was incorrect. However, in

this case the district court explicitly assumed a violation

occurred, and then determined that the appropriate sanction

was to allow the defense to cross-examine the agent

witnesses about their exposure to the transcript. We have

long recognized cross-examination as a suitable remedy for

a Rule 615 violation, at least where, as here, the violation of

the rule was not deliberate. Hobbs, 31 F.3d at 921–22.

Robertson makes no argument for why this common remedy

was insufficient under the circumstances presented here. The

district court carefully explored the alleged violation,

considered the possible sanctions, determined that neither

the prosecutor nor the agent witnesses intended to violate the

exclusion order, and ultimately decided that cross-

examination of the witnesses in front of the jury was

sufficient to cure any unintentional violation. This course of

action was well within the district court’s discretion. See

United States v. English, 92 F.3d 909, 913 (9th Cir. 1996)

(district court’s decision to not disqualify a witness who

violated an exclusion order was not an abuse of discretion

where there was no indication that the side calling the

witness intended to violate the order); cf. United States v.

Arias-Santana, 964 F.2d 1262, 1266 (1st Cir. 1992) (“Even

in the face of an established violation of a court-ordered

witness sequestration order, the sanction determination is

committed to the sound discretion of the trial court.”).

UNITED STATES V. ROBERTSON 19

D.

Robertson’s fourth contention is that the district court

erred in denying her request for production of Agent

Longton’s notes under the Jencks Act, 18 U.S.C. § 3500.

“We review a district court’s denial of a motion to produce

a witness’ statement pursuant to the Jencks Act for abuse of

discretion.” United States v. Boshell, 952 F.2d 1101, 1104

(9th Cir. 1991).

After a government witness testifies on direct

examination, the Jencks Act requires the district court, on

motion of the defendant, to order production of any

“statement” of the witness in possession of the government

that relates to the subject matter of the witness’s testimony.

18 U.S.C. § 3500(b). Under the Act, the term “statement”

includes “a written statement made by [the] witness and

signed or otherwise adopted or approved by him,” or a

“substantially verbatim recital of an oral statement made by

said witness and recorded contemporaneously with the

making of such oral statement.” 18 U.S.C. § 3500(e). We

have held that “notes and reports” of government agents who

testify for the government may constitute a “statement”

subject to production under the Jencks Act. United States v.

Johnson, 521 F.2d 1318, 1319–20 (9th Cir. 1975).

After Agent Longton’s testimony indicated he may have

taken notes of a June 12, 2014 conversation with one of the

customers who complained about a missing gift card,

defense counsel requested the district court to order

production of the notes. The district court then questioned

the government about whether the notes in question were

required to be disclosed under any of the “affirmative

disclosure theories” raised by the defense. The government

responded that none of Agent Longton’s handwritten notes

had “any substance to them,” but instead contained

20 UNITED STATES V. ROBERTSON

fragmentary writings “like phone numbers here and there

and whatnot.” The district court concluded the notes were

not subject to production under the Jencks Act.

Robertson contends the Jencks Act required the district

court to conduct an in camera review of Longton’s notes

before determining the notes were not subject to production.

We disagree. Although our case law in this area has not been

entirely clear, we have previously stated that a defendant

must make a threshold showing that notes sought pursuant

to the Jencks Act constitute a “statement” before the district

court will be required to review the notes in camera. See

United States v. Henke, 222 F.3d 633, 642–43 (9th Cir.

2000) (concluding that defendants did not trigger the district

court’s obligation to review government’s notes in camera

where they made no showing the notes were used or adopted

by the witness); United States v. Michaels, 796 F.2d 1112,

1117 (9th Cir. 1986) (holding that the district court did not

abuse its discretion in refusing to order production where

defendant “made no attempt to show” that the notes in

question satisfied the “requirements that would qualify them

as witness’s statements for purposes of the Jencks Act”).

Here, Robertson did not make a prima facie showing that

Longton’s rough notes constituted a statement under the Act.

See United States v. Mincoff, 574 F.3d 1186, 1200 (9th Cir.

2009) (citation omitted) (“[A]n agent’s rough notes will not

be Jencks Act statements when they are not complete, are

truncated in nature, or have become an unsiftable mix of

witness testimony, investigator’s selections, interpretations,

and interpolations.”). Therefore, the district court was not

obligated to review the notes in camera.

Robertson relies on our decision in Johnson to argue

otherwise, but Johnson is not to the contrary. In Johnson, the

district court denied a defendant’s request for production of

UNITED STATES V. ROBERTSON 21

an agent’s notes of the arrest and interview of the defendant,

concluding that “provision of the agent’s case report was

enough to satisfy the requirements of the Jencks Act.”

521 F.2d at 1320. We reversed, explaining that the district

court was first required to decide whether the notes in

question constituted a “statement” before denying the

request. Id. at 1319. We concluded “[t]hat the notes may

have constituted a Jencks Act statement was sufficient to

trigger further investigation” by the district court. Id. at

1320.

To be sure, some of our language in Johnson could be

read to suggest an open-ended obligation on the part of the

district court to review notes in camera every time a

defendant alleges an agent’s notes are subject to production.

See id. at 1319 (“It is the function of the trial court to

determine the issue of producibility, i.e., to decide whether

the notes in question constitute a ‘statement’ within the

meaning of the Act.”). But Johnson is not inconsistent with

our later cases discussing the defendant’s need to make a

prima facie showing. In Johnson, there was no dispute that

the agent’s handwritten notes of the defendant’s arrest and

interview could qualify as a statement under the Jencks Act.

We reversed the district court because the fact that the notes

fell within the category of possible statements subject to

production required the court to investigate further, which it

failed to do. Id. at 1320. Here, by contrast, there is no

foundation in the record on which to conclude that Agent

Longton’s rough notes rose to the level of a possible

“statement” under the Jencks Act. Johnson did not discuss a

prima facie showing because any such showing was satisfied

there on its face. That is not the case with the incomplete

notes at issue here. See United States v. Bobadilla-Lopez,

954 F.2d 519, 522 (9th Cir. 1992) (“[F]or production to be

required [under the Jencks Act], the materials should not

22 UNITED STATES V. ROBERTSON

only reflect the witness’ own words, but should also be in

the nature of a complete recital that eliminates the possibility

of portions being selected out of context.”); United States v.

Griffin, 659 F.2d 932, 938 n.4 (9th Cir. 1981) (“[I]t will be

the very unusual case where an agent’s own thoughts will be

recorded in rough interview notes with sufficient

completeness or intent to communicate to be a Jencks Act

statement.”).

We now make it clear that unless a defendant makes a

threshold showing that notes sought pursuant to the Jencks

Act may qualify as a “statement” under the Act, the district

court is not obligated to review the notes in camera before

refusing to compel production. The defendant’s burden in

this regard is not a heavy one. We agree with the Seventh

Circuit that so long as a defendant seeking production under

the Jencks Act specifies with reasonable particularity that a

certain document exists, that there is reason to believe the

document is a “statement” under the Act, and that the

government failed to provide it in violation of the Act, the

district court will ordinarily be required to conduct an in

camera inquiry into whether the document in question

constitutes a statement. See United States v. Allen, 798 F.2d

985, 996–97 (7th Cir. 1986).

Robertson did not make a threshold showing that Agent

Longton’s rough notes constituted a statement under the

Jencks Act. Therefore, she has not shown that the district

court abused its discretion in refusing to order production of

the notes.

E.

Finally, Robertson argues the district court erred by

adopting a jury instruction on embezzlement of mail by a

postal employee that misstated the law. Where, as here, the

UNITED STATES V. ROBERTSON 23

defendant failed to object to the jury instruction before the

district court, we review for plain error whether the

instruction misstated the law. United States v. Walls,

784 F.3d 543, 546 (9th Cir. 2015).

Counts one through seven of the indictment charged

Robertson with theft of mail by a postal employee in

violation of 18 U.S.C. § 1709. Section 1709 provides:

Whoever, being a Postal Service officer or

employee, embezzles any letter, postal card,

package, bag, or mail, or any article or thing

contained therein entrusted to him or which

comes into his possession intended to be

conveyed by mail . . .; or steals, abstracts, or

removes from any such letter, package, bag,

or mail, any article or thing contained therein,

shall be fined under this title or imprisoned

not more than five years, or both.

As evident from the plain language of the statute, section

1709 treats embezzling mail and stealing mail as two

separate offenses. See also United States v. Lucarz, 430 F.2d

1051, 1053 n.1 (9th Cir. 1970). Robertson was charged with

embezzlement.

As relevant here, the indictment alleged that Robertson

embezzled mail that had been “entrusted to her and which

came into her possession.” The district court’s jury

instruction, however, required the government to prove

Robertson “was entrusted with or came into possession of”

the mail she was accused of embezzling. Robertson argues

that the use of the disjunctive “or” in the jury instruction was

plain error because it allowed the jury to convict her of

embezzlement solely on a finding that she “came into

possession” of the mail, rather than a showing of both

24 UNITED STATES V. ROBERTSON

entrustment and possession. We conclude Robertson’s

argument is without merit.

First, the jury instruction adopted by the district court

tracked the language of section 1709. As stated above,

section 1709 prohibits a Postal Service employee from

embezzling mail matter “entrusted to him or which comes

into his possession.” 18 U.S.C. § 1709 (emphasis added).

Similarly, the instructions given to the jury required the

government to prove that Robertson was “entrusted with or

came into possession of” the mail she was alleged to have

embezzled. Because the adopted instruction accurately re-

stated the elements of the statutory offense, the instruction

did not misstate the law. See United States v. Dela Cruz, 358

F.3d 623, 626 (9th Cir. 2004) (rejecting defendant’s

challenge to the district court’s jury instructions where the

instructions properly stated the necessary elements for

conviction).

Second, Robertson’s argument that the difference

between the disjunctive “or” used in the jury instruction and

the conjunctive “and” used in the indictment indicates plain

error by the district court is incorrect. The government may

charge in the conjunctive and prove in the disjunctive.

United States v. Bonanno, 852 F.2d 434, 441 (9th Cir. 1988);

United States v. Carter, 454 F.2d 525, 526 (9th Cir. 1972);

McGriff v. United States, 408 F.2d 333, 334 (9th Cir. 1969).

As we explained in Bonanno, “[w]here a statute specifies

two or more ways in which an offense may be committed,

all may be alleged in the conjunctive in one count and proof

of any one of those acts conjunctively charged may establish

guilt.” 852 F.2d at 441. That is exactly what occurred here.

The indictment charged Robertson in the conjunctive, while

the jury instruction was written in the disjunctive. Thus,

under long-standing practice, the district court did not

UNITED STATES V. ROBERTSON 25

plainly err in giving a disjunctive instruction that tracked the

language of the statute. McGriff, 408 F.2d at 334 (concluding

the district court properly instructed the jury in the

disjunctive even though the indictment charged violation in

the conjunctive).

Finally, although not a direct challenge to the jury

instructions, Robertson alleges the government committed

“prosecutorial error” by informing the jury it could convict

Robertson of embezzling mail solely on a finding that the

stolen mail “came into her possession.” Robertson contends

the government was required to prove both that the mail had

been “entrusted to her” and “came into her possession.”

We disagree. Even if we did accept Robertson’s

assertion that the government downplayed the position of

trust she occupied as a USPS letter carrier (an assertion

belied by the record), as explained above the government

needed to prove only that the mail was entrusted to

Robertson or came into her possession. Thus, to the extent

the prosecution focused its case on showing Robertson

“came into possession” of the mail she was accused of

embezzling, there was no error.

AFFIRMED.