In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2965

Horace E. Smith, II, M.D.,

Plaintiff-Appellant,

v.

City of Chicago, a municipal corporation,
Milton M. Scott, employee of the Police
Department of the City of Chicago,
a municipal corporation and Randall Darlin,
employee of the Police Department of the
City of Chicago, a municipal corporation,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 763--Harry D. Leinenweber, Judge.

Argued May 31, 2000--Decided March 6, 2001

  Before Flaum, Chief Judge, and Bauer and
Harlington Wood, Jr., Circuit Judges.

  Bauer, Circuit Judge. Smith sued defendants, in
relevant part, for unreasonable search and
seizure, use of excessive force, and battery,
arising from a May 1996 traffic stop. After some
to and fro-ing, the case is before us again, so
a thumbnail sketch of the facts and case history
is needed.

  The district court entered summary judgment in
defendants’ favor on all counts, and Smith
appealed. Defendants motioned this Court for a
limited remand to allow the district court to
listen to an audio tape recording of the
conversation between the officers and the
dispatcher during this incident. A transcript of
the conversation was already part of the record.
The tape became critical, however, because a
dispute arose as to whether the officers had
played their siren while following Smith. Smith
is adamant that he did not hear the siren. He
claims that he did not know that the men in the
car trailing him were police officers because
they were plain-clothed and drove an unmarked
car. The officers contend that they followed
Smith after he had violated a traffic law and
played the siren, but that Smith refused to pull
over. Smith, although driving within the speed
limit, did not stop for twelve blocks until
marked police cars pulled in front of him. On
December 2, 1999, we granted defendants’ motion,
ordering the district court to consider: (1)
whether a copy of the tape had been tendered to
it; and (2) if a genuine issue of material fact
existed as to whether the officers played their
siren prior to the investigative stop.

  On February 24, 2000, defendants filed a
memorandum in light of our remand order asking
the district court to consider the tape in
deciding on summary judgment. The defendants
noted that Smith objected to its admission
because there were gaps and pauses in it and it
was unclear whose siren was audible on the tape.
In response, defendants pointed to the following:
(1) an affidavit signed by Officer Darlin, one of
the arresting officers, swearing that he had
listened to the tape, that the voice on it was
his, and that the siren heard on it sounded like
the one from the car on that day; (2) an
affidavit signed by Thomas Dugan, an employee of
the City of Chicago Office of Emergency
Communications, swearing that the office records
all conversations between police and dispatchers
and maintains these tapes in its ordinary course
of business, that he had listened to the tape,
that the office had made the tape from a master
tape in its regular business practice, and that
the recording had no "gaps" or "unexplained
pauses," and that the siren had to have come from
the officers’ car since it was only audible when
the officers spoke; and (3) deposition testimony
of Officer Scott, another one of the arresting
officers, recounting that Darlin had activated
the siren while following Smith and that it
remained on for twelve blocks. Defendants argued
that Smith offered no evidence creating a genuine
issue of material fact as to whether the siren
was played. The only evidence Smith asserted was
that he did not hear the siren. On March 1, 2000,
Smith filed a memorandum in response. Smith
argued that the tape was inadmissible because it
had not been tendered to the court, the tape had
gaps and pauses, and no foundation or
authentication of the tape was presented.
  The district court’s order, issued on March 9,
2000, which strictly adhered to the language of
our December 2nd order, found that the tape had
not been tendered to the court, and thus could
not be considered as evidence. However, based on
the depositions and affidavits, the district
court found that the siren had been played. The
district court concluded that Smith’s mere
assertion to the contrary was insufficient to
raise a genuine issue of material fact.
Therefore, the district court again granted
summary judgment in defendants’ favor. Smith
appealed.

  Upon reading the district court’s order, we
realized the ambiguity in our December 2nd order
and set out to clarify it. On June 27, 2000, we
issued an order directing the district court to
supplement the record with the tape, listen to
it, and redetermine the grant of summary
judgment. Pursuant to this clearer directive, the
district court, on October 12, 2000, issued an
order stating that it had supplemented the record
with the tape and listened to it. The court noted
that the tape contained a recording of the
conversation between the officers and dispatcher
regarding a car that refused to pull over.
Throughout the tape, a siren is clearly audible
as the officers speak. (We too have listened to
the tape and agree with the district court that
a siren is clearly playing as the officers are
speaking.) The district court noted that the
defendants had offered the tape as authentic and
had indicated that the siren was theirs. The
court again found that no genuine issue of
material fact existed since Smith merely asserted
that he did not hear the siren and offered no
evidence that the tape was not what the
defendants claimed it to be. Therefore, the
district court decided that summary judgment was
still warranted in defendants’ favor.

  Today we consider two issues raised by Smith.
First, he raises questions about the tape’s
authenticity and admissibility, and second, he
alternatively argues that even if the tape was
properly admissible, it did not eliminate
disputes as to genuine issues of material fact.

  I. Admissibility and Authenticity of the Audio
Tape Recording

  In granting summary judgment, a "’court may
consider any material that would be admissible or
usable at trial,’ including properly
authenticated and admissible documents or
exhibits." Woods v. City of Chicago, 234 F.3d
979, 988 (7th Cir. 2000) (quoting Aguilera v.
Cook County Police & Corrs. Merit Bd., 760 F.2d
844, 849 (7th Cir. 1985) and citing Martz v.
Union Labor Life Ins. Co., 757 F.2d 135, 138 (7th
Cir. 1985)). Audio tape recordings are generally
admissible as evidence whether in original or
duplicate form. See United States v. Carrasco,
887 F.2d 794, 802 (7th Cir. 1989). However, a
duplicate may be inadmissible if "a genuine
question is raised as to the authenticity of the
original . . . ." Fed. R. Evid. 1003(1). In
determining authenticity we follow Fed. R. Evid.
901(a), which requires "evidence sufficient to
support a finding that the matter in question is
what its proponent claims." United States v.
Boyd, 208 F.3d 638, 644 (7th Cir. 2000). Beyond
these basic parameters, "we have eschewed any
formalistic approach to the admission of tape
recordings or copies thereof." Stringel v.
Methodist Hosp. of Indiana, Inc., 89 F.3d 415,
420 (7th Cir. 1996).

  To authenticate a tape in a criminal case the
government must prove by clear and convincing
evidence that the tape is a true, accurate, and
authentic recording of the conversation, at a
given time, between the parties involved. See id.
We have assumed, but not decided, that the
proponent in a civil case for admission of a tape
bears the same burden. See id. We decline to
squarely decide the question again today, resting
on the same assumption. Clear and convincing
evidence of the truth, accuracy, and authenticity
of a tape may be shown in two ways. The proponent
may show the tape’s chain of custody. See United
States v. Brown, 136 F.3d 1176, 1181 (7th Cir.
1998). If no proof as to chain of custody is
rendered, the tape may be admissible if a
foundation as to the "’accuracy and
trustworthiness of the evidence is laid.’" Id.
(quoting United States v. Craig, 573 F.2d 455,
478 (7th Cir. 1977)). "In this circuit, the
recollections of eyewitnesses to the events in
question are sufficient to establish a foundation
for the admission of tapes." Id. at 1182
(citations omitted).

  Our second remand ordered the district court to
admit the tape into the record and consider it in
its decision. In so doing, the district court
found that the tape was authentic and admissible
because the proponents laid a proper foundation.
They did so by submitting both Darlin’s
affidavit, which included eyewitness statements
identifying his voice and siren, and Dugan’s
affidavit, which included chain of custody
statements about how the tape was recorded and
handled in the office. Thus, based on these
attestations, the district court appropriately
shifted the burden to Smith to show
inauthenticity, because once the foundation is
laid by clear and convincing evidence, the
opponent of admission has the burden to rebut.
See United States v. Blakey, 607 F.2d 779, 787
(7th Cir. 1979). The district court properly
found that Smith presented no evidence "to
dispute that the recording is what the defendants
claim[ed] it to be." Smith’s only rebuttal is
that he did not hear the siren, therefore there
may have been a problem with the fidelity of the
siren system or the siren was not played. Smith’s
contentions are merely "general, conclusory
allegations based upon mere suspicions," which
are not enough to rebut the proponent’s
foundation. Id. (quotation omitted). Stated
another way, "[m]erely raising the possibility
(however hypothetical) of tampering is not
sufficient to render evidence inadmissible."
Brown, 136 F.3d at 1182 (citation omitted).
Therefore, it was appropriate to admit the tape
in determining summary judgment, and the district
court correctly found that the tape was authentic
and admissible. Smith raises an assortment of
other arguments regarding the authenticity and
admissibility of the tape, however, we decline to
address them for they are without merit.

 II. Review of the Summary Judgment Grant

  We review the district court’s grant of summary
judgment de novo, construing all facts and
drawing all reasonable inferences from the record
in the light most favorable to the nonmovant.
Summary judgment is proper when the record
reveals no genuine issue of material fact and
that the movant is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(c).

   A. Unlawful Search and Seizure Claim

  Smith claims that the officers violated his
rights by searching him and the car’s glove box,
passenger compartment, and trunk. The district
court held that the defendants were entitled to
qualified immunity because a reasonable person
would not find that the officers violated Smith’s
clearly established constitutional rights. Police
officers are entitled to qualified immunity for
actions taken during a stop or arrest "’insofar
as their conduct does not violate clearly
established statutory or constitutional rights of
which a reasonable person would have known.’"
Rice v. Burks, 999 F.2d 1172, 1174 (7th Cir.
1993) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). Qualified immunity is
dissolved, however, if a plaintiff points to a
clearly analogous case establishing a right to be
free from the specific conduct at issue or when
the conduct is so egregious that no reasonable
person could have believed that it would not
violate clearly established rights. See Saffell
v. Crews, 183 F.3d 655, 658 (7th Cir. 1999).

  The defendants acquired reasonable suspicion to
conduct an investigatory stop of Smith when they
believed that he had committed a traffic offense
and then would not pull over for twelve blocks
while the officers played their siren. When the
dispatcher misinformed the officers that Smith
had thirteen aliases it was reasonable for the
officers to call Smith’s identity into question.
Furthermore, Smith could not produce proof of
valid insurance for his car. Smith’s arrest was
based on probable cause. Thus, the district court
found that it was not contrary to established law
for the officers to conduct a search incident to
the arrest. The district court found, however,
that the search of the trunk may have been
unlawful if the officers did not have probable
cause to believe the trunk contained contraband
or evidence of a crime, but held that the law was
not clear at the time of the incident such that
a reasonable official would not have known that
he or she may have been violating a clearly
established right. See New York v. Belton, 453
U.S. 454, 460, 460-61 n.4 (1981) ("When a
policeman has made a lawful custodial arrest of
the occupant of an automobile, he may, as a
contemporaneous incident of that arrest, search
the passenger compartment of that automobile. .
. . Our holding encompasses only the interior of
the passenger compartment of an automobile and
does not encompass the trunk."); United States v.
Patterson, 65 F.3d 68, 70 (7th Cir. 1995) ("[A]
vehicle may be searched without a warrant if
there is probable cause to believe the car
contains contraband or evidence of a crime. A
search of an automobile based on probable cause
lawfully extends to all parts of the vehicle in
which contraband or evidence could be concealed,
including closed compartments and trunks.")
(quotations and citations omitted).

  Smith’s main contention is that such a search
was unlawful because he committed a minor traffic
violation. This contention is wholly wrong
because it ignores many facts, namely Smith’s
refusal to pull over, his invalid proof of
insurance, and the thirteen aliases he was said
to have. All of these facts combined gave the
officers probable cause to arrest him and conduct
a search incident to that arrest. Therefore, the
officers did not violate Smith’s clearly
established rights.

  Smith also contends that a search was
unnecessary because "a reasonable officer would
have immediately known that he had pulled a
physician and minister from his vehicle, and that
Dr. Smith was not a threat and posed no danger."
We disagree. Despite the fact that Smith is a
minister and physician, the officers had probable
cause to arrest and search him. Even though Smith
was driving a church-owned car and had hospital
records in the backseat, the officers were
reasonable in disregarding these clues as to
Smith’s identity since they were informed, albeit
incorrectly, by the dispatcher that he had
thirteen aliases. Besides, to hold that the
officers should have stopped searching Smith
because he is a minister or physician would be
sanctioning stereotyping of the most pernicious
sort. We agree with, and affirm, the district
court’s decision that the defendants are entitled
to qualified immunity and summary judgment on
this claim.

   B. Excessive Force Claim

  Whether an officer used excessive force during
an arrest is determined under the "objective
reasonableness" standard. We assess whether an
officer’s actions were objectively reasonable
"’in light of the facts and circumstances
confronting them, without regard to their
underlying intent or motivation.’" Graham v.
Connor, 490 U.S. 386, 397 (1989). We consider
"the severity of the crime at issue, whether the
suspect pose[d] an immediate threat to the safety
of the officers or others, and whether he [was]
actively resisting arrest or attempting to evade
arrest by flight." Id. at 396. We balance the
amount of force used in relation to the danger
posed to the community or to the arresting
officers. See Jacobs v. City of Chicago, 215 F.3d
758, 773 (7th Cir. 2000).

  Smith asserts that he did not commit a traffic
violation, he did not know that the men following
him were police officers, and he did not hear the
siren. However, these factual disputes are of no
matter because under this standard we consider
what happened from an officer’s point of view and
assess its reasonableness objectively. The
officers’ actions in this case were objectively
reasonable. From the officers’ vantage point,
Smith committed a traffic violation, whereupon
they followed him and played their siren
(confirmed by the tape) to signal him to pull
over, which Smith did not do for twelve blocks.
When Smith was finally stopped by marked police
cars, the officers pulled Smith out of the car,
pinned his arms behind his back, slammed him
against the hood of his car, and handcuffed him.
A reasonable officer would have thought that
Smith was trying to flee, thereby justifying the
use of a higher degree of force to protect the
community and the officers than that needed for
someone who committed only a minor traffic
violation. However, the officers’ use of force
here was not high, let alone excessive. The
factual disputes raised by Smith are not material
to his substantive excessive force claim as they
rest upon his view of the incident. Not all
factual disputes warrant the denial of summary
judgment; only disputes as to facts material to
the substantive claim require resolution by
trial. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1985). Since any factual
disputes are not material to the substantive
claim, we affirm the district court’s grant of
summary judgment on this claim.
    C. Battery Claim

  A battery occurs when one "intentionally or
knowingly without legal justification and by any
means, (1) causes bodily harm to an individual or
(2) makes physical contact of an insulting or
provoking nature with an individual." 720 ILCS
5/12-3(a). A public employee is immune from
liability while enforcing the law unless their
acts are willful and wanton. See 745 ILCS 10/2-
202. Conduct is willful and wanton when it "shows
an actual or deliberate intention to cause harm
or which, if not intentional, shows an utter
indifference to or conscious disregard for the
safety of others or their property." 745 ILCS
10/1-210.

  The district court held that the evidence did
not support a finding that Darlin’s actions in
effectuating the arrest were willful and wanton.
The court reasoned that pulling a suspect from a
car, pushing him against the car, and pinning his
arms behind his back to handcuff him were all
reasonable actions to take when arresting a
potentially dangerous suspect. While ostensibly
not pleasant, being handcuffed in this manner
does not rise to the level of willful and wanton
conduct. While determining whether one’s actions
are willful and wanton is a question of fact, the
court determined that Smith’s factual claims were
insufficient to support his claim. We agree with
the district court’s grant of summary judgment on
this basis.

  Therefore, we find the admission of the audio
tape recording appropriate and AFFIRM the grant of
summary judgment in defendants’ favor on all
counts.


576 F.2d 626
78-2 USTC  P 9586
UNITED STATES of America, Plaintiff-Appellee,v.Noble C. BEASLEY, Defendant-Appellant.
No. 77-5302.
United States Court of Appeals,Fifth Circuit.
July 13, 1978.

Jonathan Shapiro, Boston, Mass., for defendant-appellant.
Wm. A. Kimbrough, Jr., U. S. Atty., William R. Favre, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Alabama.
Before SKELTON*, Senior Judge, and FAY and RUBIN, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge:

1
For the third time,1 we consider the conviction of Noble C. Beasley for willful evasion of income taxes for the year 19712 and for conspiracy with three others to distribute heroin in Mobile County, Alabama.  This review centers on whether there was a violation of the Jencks Act3 as a result of the government's failure, albeit in good faith, to produce pre-trial statements given by a key prosecution trial witness and whether the scope of cross-examination of that witness at trial was unduly restricted.  Because, under the Jencks Act, we consider results, not motive, we conclude that the government violated its statutory duty, however innocently, in failing to produce statements in the possession of a government department.  We conclude that, despite the good faith effort of the U.S. Attorney to comply with the statutory mandate, and the diligence of the trial judge who conducted with fairness not only a lengthy trial but also an exhaustive post-conviction hearing, the defendant is entitled to a new trial on the heroin conspiracy charge.  Because, however, we find that the failure to produce was harmless beyond reasonable doubt with respect to the tax evasion conviction, we affirm that conviction.  Attempting to avoid reiteration so far as possible, we now relate the reasons for these conclusions.

I.

2
The heroin conspiracy count was supported principally by the testimony of two government witnesses referred to in our prior opinion: Dickie Diamond, who related at length and in detail his own sales of heroin to Beasley; and Barbara Heron, who had once borne Beasley a child, and who confirmed some of Diamond's account, and testified further that she had acted as a heroin courier for Beasley in transactions outside the scope of the conspiracy, and indeed designed to eliminate Diamond's role as Beasley's supplier.  A careful examination of the lengthy record satisfies us that Mrs. Heron's testimony was ample to show a source of illicit income, but was not, by itself, adequate to support the jury verdict beyond reasonable doubt on the heroin conspiracy charge.  Mrs. Heron testified that Beasley was engaged in selling narcotics, that he obtained a supply at one time from Diamond, and that she later established another contact, and brought further supplies directly to Beasley.  But she did not testify to facts that would sufficiently prove the conspiracy charged to have existed among Beasley, James H. Finley, Roy S. Matthews, and Reginald Wilson.  She was able only in part to corroborate Diamond's testimony; she did know the co-conspirators; she did know that they were Beasley's friends, and she was able to confirm various aspects of Dismand's account.

3
Thus, Diamond's testimony was indispensable.  Had he not testified at all, and had the government put on its case, just as it did, but sans Diamond, the trial judge would have been obliged to direct a verdict on the heroin conspiracy count.  For this reason, Diamond's credibility was also crucial.

4
Prior to and during the trial, the defense sought to obtain Diamond's Jencks Act statements.  The Assistant U.S. Attorney performed his duty in this regard with commendable zeal.  He produced a statement given by Diamond to an Internal Revenue Service agent named Doyle Coats in New York, on April 24, 1973.  Diamond had said nothing to Coats about any prior statement.  Because the case had originated as an Internal Revenue Service prosecution, the Assistant U.S. Attorney had not worked with Drug Enforcement Administration (DEA) agents, but he did attempt to determine from that agency whether it had any Jencks Act material.  He was told that there was none; he so informed the court, and he produced no material from that agency.

5
Beasley sought a writ of certiorari from the Supreme Court to review his conviction.  While the application for the writ was pending, an attorney in the Office of the Solicitor General, at the request of Beasley's counsel, made another inquiry of the DEA office in New York.  As a result of a computer check, that office located a statement made by a DEA inspector Mortimer L. Benjamin recounting the results of interviews with Diamond held on March 16 and March 20, 1972 in a state penal institution and in the presence of another DEA agent, Weiser.  Whether this statement (the Benjamin statement) was within the scope of the Jencks Act is an issue we will discuss below.

6
The Solicitor General suggested that the Benjamin statement might be Jencks Act material, and that the Supreme Court should grant the writ and remand the case.  Responding to this suggestion, the Supreme Court in Beasley v. United States, 1976, 425 U.S. 956, 96 S.Ct. 1736, 48 L.Ed.2d 201, vacated the judgment and remanded the case "for further consideration in the light of the position presently asserted by the government."  Upon reconsideration, we stated, "The facts revealed by the Solicitor General's investigation raised serious questions as to the correctness of the original rulings on the Jencks Act and cross-examination grounds . . . ."  United States v. Beasley, 5 Cir. 1976, 535 F.2d 293, 294.  We remanded "the entire case to allow the district court to determine what, if any, effect that material may have had on the conduct of the trial as a whole and its constituent counts."  Id.

7
After the remand, the Assistant U.S. Attorney made further inquiries and learned that, on April 6, 1973, Diamond had been interviewed by DEA agent Claude Smith in Providence, Rhode Island, and that a tape recording had been made of a large part of the interview.  The recording and a transcript of it (the Smith interview), 30 pages in length, were then filed in the record.  Other agents testified that Diamond had been a government informant with respect to other matters in 1967.  The trial judge held a lengthy evidentiary hearing that he found to be "exhaustive" and "exhausting," and considered the Benjamin report, the Smith interview, and a host of other material.  He made detailed findings of fact.4

8
During the various interviews of Diamond, the government's principal interest, at least initially, was in determining whether government employees in the DEA, the Customs office, or other agencies were engaged in illicit drug transactions, or were cooperating with persons dealing in prohibited substances.  Because the Beasley case originated with the tax investigation, Diamond did not initially furnish any information with respect to it, and his comments on Beasley were only peripheral to the government's primary purpose.  However, there were various conflicts in the statements made by Diamond in his interviews.  These are analyzed in detail in the appendix.

II.

9
In Jencks v. United States, 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, the Supreme Court held that the trial court erred in denying a defense request to have produced for inspection at trial and for use on cross-examination the prior statements of the government's two principal witnesses, who acknowledged that their prior statements were relevant to their testimony.  In response, the Congress adopted Public Law 85-269, 18 U.S.C. § 3500, known as the Jencks Act.  This familiar statute provides in part:

10
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 has testified.

11
The Jencks Act applies only to federal litigation.  It implements a Congressional purpose, not a constitutional mandate.  It does not discriminate between statements that contain material beneficial to the defense and those that include other material.  But the government's failure to comply with the Jencks Act does not per se require a new trial.  In Goldberg v. United States, 1967, 425 U.S. 94, 96 S.Ct. 1338, 47 L.Ed.2d 603, the court said that, if the error was harmless, a new trial would not be required.  It elaborated what it meant:

12
Since courts cannot "speculate whether (Jencks material) could have been utilized effectively" at trial, . . .  the harmless-error doctrine must be strictly applied in Jencks Act cases.

13
425 U.S. at 111, note 21, 96 S.Ct. at 1348, 47 L.Ed.2d at 618 (citations omitted).

14
In setting forth the procedures to be followed on remand to the trial court, the Supreme Court in Goldberg cited Justice Brennan's dissent in Rosenberg v. United States, 1959, 360 U.S. 367, 373, 79 S.Ct. 1231, 1235, 3 L.Ed.2d 1304, 1308, in which the court upheld the defendant's conviction notwithstanding the non-disclosure of a witness' statement, because the information contained in the statement came out on cross-examination.  Justice Brennan, who was joined in dissent by Justices Black and Douglas and Chief Justice Warren, said, in a statement apparently approved by a majority in Goldberg :

15
Although we need not go so far as those courts which have suggested that the harmless error doctrine can never apply as to statements producible under the statute, . . .  fidelity to the principle underlying Jencks and the Jencks statute requires, I think, that when the defense has been denied a statement producible under the statute, an appellate court should order a new trial unless the circumstances justify the conclusion that a finding that such a denial was harmful error would be clearly erroneous.  In that determination, appellate courts should be hesitant to take it upon themselves to decide that the defense could not have effectively utilized a producible statement.

16
360 U.S. at 375-76, 79 S.Ct. at 1236, 3 L.Ed.2d at 1309-1310.  The court in Goldberg also cited Kotteakos v. United States, 1946, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557, 1566-1567, in which the court then said:

17
If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress . . . .  The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error.  It is rather, even so, whether the error itself had substantial influence (on the judgment).

18
Goldberg thus establishes a stricter standard than applies in constitutional cases regarding prosecutorial non-disclosure.

19
In Brady v. Maryland, 1963, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, the Supreme Court decided that due process of law exacted of the States by the Fourteenth Amendment forbids the prosecution in a criminal case to suppress "evidence favorable to an accused upon request . . . where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. at 1196-1197, 10 L.Ed.2d at 218.  Brady interpreted the constitutional guarantee of due process; therefore, it applies alike to federal and state prosecutions.  While its command is broad, the decision is not all-embracing: Brady does not read the constitution to mandate showdown in criminal prosecutions; what it requires, in addition to the non-suppression of obviously exculpatory material, is ordinary compliance with defense requests for specific evidence that is material, or likely material, to issues of guilt or punishment.

20
With respect to federal trials, even when it is applicable, Brady is not a discovery rule, but a rule of fairness and minimum prosecutorial obligation.  United States v. Agurs, 1976, 427 U.S. 97, 107, 96 S.Ct. 2392, 2399-2400, 49 L.Ed.2d 342, 352.  It requires a retrial only if, after conviction of a defendant, it is learned that evidence requested and not produced creates a reasonable doubt that did not otherwise exist as to the guilt of the accused.  In this respect, the criterion, as set forth in United States v. Agurs, supra, decided less than three months after Goldberg, is not whether the error is harmless in the usual sense.  The court in Agurs said: "If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial."  427 U.S. at 113, 96 S.Ct. at 2402, 49 L.Ed. at 355.  Thus, in Agurs, the court adopted a less demanding test in determining whether failure to produce Brady material would result in a new trial than the criterion employed in Goldberg.

21
This contrast in result may at first appear counter-intuitive: failure to comply with Brady's constitutional standard is not enforced by as stringent a test as failure to adhere to the statutory standard in the Jencks Act cases.  But it must be remembered that Brady is a constitutional mandate.  It exacts the minimum that the prosecutor, state or federal, must do.  Moreover, it commands the disclosure of exculpatory evidence, a requirement that invites review of the record for materiality.  While the Jencks Act is also designed to facilitate fair trials, it is a statutory command that may, at the will of Congress, exact more than the constitutional minimum, and its blanket disclosure requirement supports the conclusion that courts are not to review materiality, but only potential usefulness to the defense.

22
We draw these distinctions as to scope and time of impact because not all of the material now available is Jencks material, and some of the material required to be produced by Jencks would not be required to be produced by Brady.  Decision of this case does not turn on reading the Jencks Act so literally as to be a per se rule that failure to produce a statement for any reason, however justified, requires a new trial absent certainty the error is harmless.  For, as the appendix to this opinion and the analysis in Part III both show, the Smith statement was potentially highly useful to the defense; it would have been invaluable in cross-examination of Diamond, and it might have caused the jury to doubt his credibility.  The conviction of Beasley on Count I truly turned on the testimony of Diamond, and, even if a balancing of values is involved with some account taken of the prosecution's good faith, that good faith here is not enough to outweigh the prejudice to the defendant.

III.
Confusion Worse Confounded5

23
Because the trial court found that the Assistant U.S. Attorney made a good faith effort to comply both with the Jencks Act and his Brady duties, we must consider whether a failure to comply with the Jencks statute, in good faith, may be excused.  In doing so, we are not unmindful the government has a vast number of agencies whose investigations may at times overlap, and that it is not always possible for any agency to know what all of its employees are doing, and frequently impossible initially for any one agency to know the activities of another.

24
Further, the trial judge's lament deserves emphasis: to require trial attorneys to ferret out and courts to review "all of the files of every conceivable government department that may have had any brush with the issues tried, as has been the case here" imposes a formidable task.  Indeed, we repeat what has already been said.  Here the Assistant U.S. Attorney initiated a search for other statements; he could find none.  Later, the Solicitor General located the Benjamin statement through a New York office and thought the statement to be Jencks Act material; thoroughly analyzed, as it is in Part IV, it may not have been.  Still later, the Assistant U.S. Attorney in Mobile located the Smith statement, now found to be Jencks material, by inquiring of a DEA office in Mobile, Alabama.

25
Yet, we daily impute to mammoth corporations knowledge of the activities of their myriad employees.  See, e. g., Steere Tank Lines, Inc. v. United States, 5 Cir. 1963, 330 F.2d 719 (criminal liability).  Where armies are deployed in a war on crime, they must maintain sufficient discipline to fulfill their statutory and constitutional duties.  The Jencks Act does not on its face restrict its command to the production of statements in the hands of, or known to, the particular prosecuting attorney assigned to the case, the U.S. Attorney's office, the Criminal Section of the Justice Department, or even the entire Justice Department.  Its order is unqualified.

26
We put to one side cases dealing with lost material because the failure to produce what cannot be found does not patently violate the statutory mandate.6 Those lost material cases on which the government here relies are inapposite with regard to our interpretation of the Jencks Act.  For example, in United States v. Augenblick, 1969, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537, the issue was whether the non-disclosure in a court-material of lost tape recordings covered by the Jencks Act was such a violation of the defendants' constitutional rights as to oust the court-martial of jurisdiction "in the traditional sense," and thus to vest the Court of Claims with jurisdiction over the discharged servicemen's suit for backpay.  The court observed that the "Jencks decision and the Jencks Act were not cast in constitutional terms,"7 393 U.S. at 356, 89 S.Ct. at 533, 21 L.Ed.2d at 545, and held that the loss of Jencks Act material did not violate due process absent evidence of intentional suppression.  The court's holding was that the Court of Claims was thus barred from hearing the servicemen's suit.

27
Whether or not non-disclosure violates due process, however, a new trial may still be the appropriate sanction for statutory non-compliance.  The Jencks Act's blanket disclosure requirement, as we have already noted, reaches more broadly than the constitutional standard applicable to evidence "material to exculpation or impeachment," United States v. Hildebrand, 5 Cir. 1975,  506 F.2d 406, 409, cert. denied, 1975, 421 U.S. 968, 95 S.Ct. 1961, 44 L.Ed.2d 457.  Though the government may not be negligent here, the Jencks Act requires the adoption of prophylactic procedures to guarantee, to the fullest degree reasonably possible, comprehensive disclosure of material covered by that act.  "The duty of disclosure affects not only the prosecutor, but the Government as a whole, including its investigative agencies," United States v. Bryant, 1971, 142 U.S.App.D.C. 132, 140, 439 F.2d 642, 650.  Cf., Giglio v. United States, 1972, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104.

IV.
The Benjamin and Smith Reports

28
The Benjamin report consists of five typed pages.  Benjamin was an inspector; his primary duty was internal security, that is, to determine whether or not government agents were engaged in improper activity.  The focus and virtually the entire content of the report deal with questions about the activities of government employees.  Only two paragraphs say anything at all about Mobile.  While the rest of the report has properly been examined in camera, these paragraphs have been made available to the defendant.  They are, therefore, reproduced in the footnote.8

29
The report is a narrative account.  It does not purport to be verbatim or to transcribe Diamond's exact testimony.  Benjamin and Weiser testified that the report was not adopted by Diamond; Diamond did not sign it.  Although Diamond testified that he thought his responses to various questions were read back, both Benjamin and Weiser testified that this was not done.  The trial judge made no finding with respect to whether the report was adopted by Diamond.

30
While it is doubtful that the Benjamin report was Jencks material, the government concedes that, had the Assistant U.S. Attorney known of its existence prior to the trial, he would have produced it.  We will, therefore, assume arguendo that failure to produce it did violate the Jencks Act.

31
The Smith interview was, the court correctly found, covered by the statute.  Both reports have, therefore, been examined under the strict harmless error standard of Goldberg.

32
Even under this scrupulous test, the failure to produce the Benjamin report was harmless.  Diamond was cross-examined vigorously at the trial.  There were no significant discrepancies between his lengthy, sometimes garrulous account there and Benjamin's synopsis of what Diamond had said about affairs in Mobile.

33
The Smith interview was different.  Diamond's discussion of Mobile transactions was detailed and accounts for about six pages of the report.  It conflicted in many significant ways with his testimony at the trial.

34
Not only was Diamond's evidence at the trial critical, its focal importance was recognized by all at the time.  The prosecution and the defense argued his credibility to the jury at length.  The prosecution sought to buttress credibility by almost tangential corroborative evidence: hotel bills showing the dates he was in Mobile and the testimony of room clerks that they recognized him.  These served to give an air of plausibility to the rest of his account.

35
In significant and important respects, the Smith interview differs from Diamond's testimony at the trial.  A comparison of some of these is set forth in an appendix to this opinion.  While the cross-examination of Diamond was intensive, these apparent discrepancies would have furnished further ammunition for the defendant's attack:

36
Every experienced trial judge and trial lawyer knows the value for impeaching purposes of statements of the witness recording the events before time dulls treacherous memory.  Flat contradiction between the witness' testimony and the version of the events given in his reports is not the only test of inconsistency.  The omission from the reports of facts related at the trial, or a contrast in emphasis upon the same facts, even a different order of treatment, are also relevant to the cross-examining process of testing the credibility of a witness' trial testimony.

37
Jencks v. United States, supra, 353 U.S. at 667, 77 S.Ct. at 1013, 1 L.Ed.2d at 1111.

38
Every member of this court has, at an earlier stage of his career, been faced in a courtroom with the problem of impeaching the key witness.  None of us can say that, notwithstanding the fact that we could impeach Diamond for having been previously thrice convicted and a murderer and a narcotics dealer, we would not have welcomed the additional possibility of attacking his own detailed testimony with his contrary recorded words.

39
In view of the conclusion we have reached, we need not consider whether the limitation of the cross-examination of Diamond was erroneous.  For the reasons we have given, we vacate the conviction of the defendant on Count I and remand the case for a new trial on that count.

V.

40
The tax prosecution rested on different evidence.  It was based on net worth, and a convincing case was established, most of it admitted by the defendant when he took the stand.  The prosecuting attorney was frank to admit that the heroin charge was important in achieving the tax conviction because it enabled him to point to a source of unreported funds.  To whatever degree Diamond was impeached concerning the alleged heroin conspiracy, there was convincing testimony by Mrs. Heron, unrebutted save by Beasley's personal denial, that Beasley was engaged in illicit activities potentially generating income.  The record would support his conviction beyond reasonable doubt without a word from Diamond.

41
Therefore, we conclude that the failure to produce Jencks Act material was harmless beyond doubt as to Count Six, and we affirm the conviction of that charge.

42
	AFFIRMED in part, REVERSED in part, and REMANDED.
                           APPENDIX
Coats Statement   Smith Interview              Trial
---------------   ---------------              -----
                  . . . so I was there         Q: Who introduced you,
                  guess about, off and on      if anyone, to Mr. Beasley?
                  for weeks, so I stop by
                  his club, the SAFARI
                  CLUB. . . .                  A: . . . it was a little
                                               office on Davis Street or
                                               Davis Avenue, they call
                                               NOW; I don't know what
                                               it stands for. . . .
                                               And Barbara Heron
                                               introduced me to him.
                                                 *    *    *    *    *
                                               Q: . . . how long was
                                               it after you hit town that
                                               you went over and saw
                                               Mr. Beasley?
                                               A: I'd say within the first
                                               day or day and a half
                                               when I got here . . .
------------------------------------------------------------------------------
He stated that    . . . I first met            Q: Did you ever have any
the first deal    Beasley in                   any discussion with Mr.
(with Beasley)    October 1970.                Beasley regarding heroin?
was in about the
middle of 1970
. . . .
                                               A: Yes, I did.
                                               Q: Do you recall when
                                               they were?
                                               A: October in seventy.
------------------------------------------------------------------------------
                  . . . I had brought into     Q: You had come down
                  the area about 25 ounces     into Mobile and you hadn't
                  of drugs. . . .              brought the drugs with you?
                                               A: No, sir.
                                               Q: Who brought them?
                                               A: Came in through a
                                               courier.
------------------------------------------------------------------------------
(During the       . . . I think the first      . . . I told him I start
first deal)       two things was two           you off with a small package
he sold Bip       "pieces" (ounces) for        and let you build to
and eighth of     $2,500 and I loan him a      a big package.  I gave him
a kilo . . .      $1,000 cash.                 an eighth of a kilo (for
                  SA SMITH: Was that in        $3,500 credit).
                  October 1970?
                  In October, 1970, the last
                  part of 1970 of or first
                  part of 1971.
                  The next package was an      . . . I got my money on
                  eighth and ah, I told at     the first package in about
                  the time instead of giving   four of five days. . . .
                  me $5,000, I want $4,500     I wouldn't say it was an
                                               hour (later) before I hit
                                               him with the second pack
                    *    *    *    *    *      . . . . on or about the
                                               last of October, 1970, he
                  . . . so I gave him          paid me twenty four hundred
                  merchandise like, I would    dollars (for the first
                  say on the ratio of an       pack).
                  eighth of stuff every
                  week then he come up and,      *    *    *    *    *
                  like, he was falling a
                  $1,000 behind of $1,500,
                  but you know like if you     A. After the second package,
                  got your stuff hid in        if I give it to him for
                  the bushes you don't         thirty five, he only give me
                  care about a guy owing       twenty four, he owe me
                  you money . .                eleven, and I give him
                                               another package on full
                                               consignment for thirty five
                                               again, so then apparently I
                                               hop to forty six.
                                               Q: Now, how much was in
                                               that first package that you
                                               mentioned?
                                               A: The first package was
                                               the eight and the second
                                               package was the eight.
------------------------------------------------------------------------------
Later on in       . . . that was in, right     Q: Now, was there a third
1970 he fronted   around Christmas time of     package?
a quarter of a    1970, and he, for
kilo to "Bip."    $15,000 and he gave
                  me $7,500 up front.          A: Yes, sir.
                                               Q: How much was it?
                  SA SMITH: Was that half
                  a kilo of scag (heroin)?     A: Quarter.
                                                 *    *    *    *    *
                  Yes, scag . . .              Q: Now, at the time you
                                               sold this one quarter to
                                               him, what was the status at
                                               that time between you and
                                               Mr. Beasley?
                                               A: Paid up.
                                               Q: . . . Now, when, if
                                               ever did you sell any more
                                               heroin to Mr. Beasley?
                                               A: Another quarter.
                                                 *    *    *    *    *
                                               I would say around November
                                               . . . . I mean December
                                               twenty third.
------------------------------------------------------------------------------
Still later in    Yes, 1971, and I went        Q: When,if at any time,
1971 he fronted   back in the area,            did you sell Mr. Beasley
him another       and he gave me some of       any more heroin after that
quarter.          my money, and I gave         last one quarter that you
                  him another 1/2              told us about?
                  kilogram.
                    *    *    *    *    *
                                               A: Seventy one.
                  . . . that left him
                  owing me $12,500.              *    *    *    *    *
                  This was around May
                  or June somewhere
                  around that time             A: June.
                  1971.
                                               Q: And how much was it
                                               then?
                                               A: A quarter.
                                               Q: How much money was
                                               it for?
                                               A: Seven thousand.
                                                 *    *    *    *    *
                                               A: . . . All quarters are
                                               seven thousand.
                                                 *    *    *    *    *
                                               Q: Now, after that, when
                                               is the next time that there
                                               was that you sold any heroin
                                               to Mr. Beasley?
                                               A: Well, it was during the
                                               time I told you, around June
                                               of July (1971) that we closed
                                               our transaction out with the
                                               last two quarters, because
                                               he ended up owing me some
                                               money. . . .
                WITH RESPECT TO ROY MATTHEWS (A Customs Agent)
Diamond further   "Roy shook me down, you      "He told me he could protect
stated that he    know, for $500 once,         my operation if I would
was paying        cause he told me he knew     operate anywhere down the
$250.00 a         what I'm doing, and          Gulf Coast and that for
week for          another time for $250."      protecting my operation, he
protection.                                    wanted two fifty a week
                                               . . ."
                                                 *    *    *    *    *
                                               "I came to an agreement to
                                               give him two fifty a week."
------------------------------------------------------------------------------
                  In 1971, "I gave him a       Q. ". . . . how many
                  hundred dollars.  So, that    times, if you can recall,
                  was the last money I         did you make any payments
                  remembered giving him."      of money?"
                                               A. "I would say about 16
                                               or 18 occasions . . . .
                                               (from) October, 1970 to
                                               January, 1971, June and July of
                                                1971."

*
 Senior Judge of the United States Court of Claims, sitting by designation

1
 United States v. Beasley, 5 Cir. 1975, 519 F.2d 233, vacated, 1976, 425 U.S. 956, 96 S.Ct. 1736, 48 L.Ed.2d 201; 5 Cir. 1976, 535 F.2d 293

2
 He had also been convicted of filing a false return for the same year.  This being a lesser included offense, the conviction has been vacated.  United States v. Beasley, supra, note 1, 519 F.2d at 249

3
 18 U.S.C. § 3500

4
 Unfortunately, the trial court failed to consider the rulings previously made with respect to the limitations on cross-examination.  United States v. Beasley, S.D.Ala.1977, Memorandum Opinion (Cr. No. 15, 933, Apr. 5, 1977)

5
 John Milton, Paradise Lost II, 996-997

6
 This case also involves a different balancing of policy considerations from decisions regarding those sanctions to be imposed where discoverable material is lost or destroyed.  In such cases, a requirement of literal statutory compliance might simply bar prosecution.  Such a drastic step must ordinarily be considered at the same time a court is "entirely in the dark," United States v. Bryant, 1971, 142 U.S.App.D.C. 132, 138, 439 F.2d 642, 648, with respect to the character of the evidence lost or destroyed.  Bryant, in which the court remanded for a hearing on the circumstances surrounding the loss of evidence involved, dealt explicitly with standards applicable under F.R.Cr.P., Rule 16, because the tapes involved included statements by the defendant and were requested prior to trial; however, the court treated the question of good faith under Rule 16 as being informed by the same considerations as are raised in the Brady or Jencks Act context

7
 One text accurately characterizes the holding in Jencks as based on the Supreme Court's "exercise of . . .  supervisory power over federal practice," Kamisar, LaFave, and Israel, Modern Criminal Procedure 1235 note j (4th Ed. 1974)

8
 He (Diamond) stated that a Customs Agent named Roy MATTHEWS presently employed by Customs in Mobile, Alabama was closely associated and presently living with former New York Police Officer and BNDD defendant (case NY: S 11503) Samuel MORRIS.  He said MORRIS and MATTHEWS were engaged in all sorts of smuggling including twenty to thirty kilos of heroin at a time.  The point of entry into the United States would generally be Florida or New Orleans
He also gave information in regard to alias DR. FINLEY, a pharmacist operating in Mobile, Alabama who was arrested with a stolen car.  He identifies this pharmacist as a negro with light skin, approximately 39 years old.  2-IS-100 (Diamond) further stated that FINLEY is a major source of supply for large quantities of manite ranging up to 5,000 pounds.


666 S.E.2d 637 (2008)
McCALL
v.
COUTURE.
No. A08A1761.
Court of Appeals of Georgia.
August 14, 2008.
*638 Earl McCall, pro se.
Gray, Rust, St. Amand, Moffett & Brieske, Michael J. Rust, Korey M. Carter, Atlanta, for appellee.
BLACKBURN, Presiding Judge.
In this defamation action, plaintiff Tom Earl McCall appeals the grant of summary judgment to defendant David Couture, arguing that the trial court erred in finding (i) that Couture's allegedly defamatory written statements were true, (ii) that the statements constituted opinion, and (iii) that the statements were privileged. For the reasons set forth below, we affirm.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c); Britt v. Kelly & Picerne, Inc.[1] "On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most *639 favorable to the nonmovant." McCaskill v. Carillo.[2]
So construed, the evidence shows that McCall and Couture own separate properties in a vacation resort community near Dahlonega, Georgia, known as R-Ranch in the Mountains ("R-Ranch"). In addition to owning property, McCall was also a Board member of the R-Ranch Owners' Association, and in 2005, he became the Board's treasurer. In January 2007, Couture received an e-mail from an anonymous R-Ranch owner, which alleged that some unnamed Board members had misappropriated Owners' Association funds. Out of concern for his property investment, Couture began searching public court records to investigate the backgrounds of each of the R-Ranch Board members. During the course of this investigation, Couture learned that numerous civil judgments and tax liens totaling approximately $225,000 had been rendered against McCall and several of his businesses. Additionally, Couture learned that McCall had previously been charged with driving under the influence of alcohol and with committing the offense of deposit account fraud.
Based on what he had learned from searching the public records, Couture drafted a letter to the R-Ranch Board, in which he outlined his concerns and in which he informed the Board of the various civil judgments, tax liens, and criminal charges against McCall and his businesses. Concluding his letter, Couture wrote:
With this said, we need to immediately relieve [McCall] from Treasurer until our Attorney Madeline can look this over to give her opinion. If he cannot manage his finances, then he has no business managing ours! We do not need a weak link with the ongoing Crosswinds situation. I am not insinuating that Earl has been mismanaging our funds, however it is my feeling that we do not need someone that has had such difficulty in his personal life in the position of treasurer.
At the next R-Ranch Board meeting in March 2007, Couture provided the members of the Board with copies of his letter as well as copies of some of the public records pertaining to McCall's background. Coincidentally, McCall did not attend this meeting. However, he learned of the letter's contents from other attendees on the same day that it was provided to the Board members. Almost immediately, McCall began receiving requests from the Board and other owners that he resign as treasurer, and later, the Board's president removed McCall from that position.
Shortly thereafter, McCall sent a letter to Couture, demanding that Couture retract the statements made in his letter to the R-Ranch Owners' Association Board because the statements were false and defamatory. In the same letter, McCall also threatened to file a defamation action against Couture if he did not issue a retraction. When Couture refused to retract the statements made in his letter, McCall filed this action, alleging defamation and intentional infliction of emotional distress. Couture moved for summary judgment as to all of McCall's claims. The trial court granted Couture's motion, ruling that the statements in Couture's letter were true, constituted his opinion, and were privileged. This appeal followed.
1. McCall contends that the trial court erred in granting summary judgment on the ground that the statements in Couture's letter to the Board concerning the judgments, tax liens, and criminal charges against him and his businesses were true. We agree with the trial court.
"A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule." OCGA § 51-5-1(a). "The publication of the libelous matter is essential to recovery." OCGA § 51-5-1(b).[3] "A cause of action for libel or slander will fail if the statement is *640 shown to be truthful." Nelson v. Glynn-Brunswick Hosp. Auth.[4] See OCGA § 51-5-6. "Although as a general rule the question whether a particular communication is defamatory is for the jury, if the statement is not ambiguous and reasonably can have only one interpretation, the question of defamation is one of law for the court." Speedway Grading Corp. v. Gardner.[5]
Here, the statements in Couture's letter to the Board concerning the judgments, tax liens, and criminal charges against McCall and his various businesses were based upon the public court records that Couture found during his investigation of the Board. Furthermore, McCall testified in his deposition that the letter's statements concerning his legal and financial difficulties were accurate. "A plaintiff cannot recover for alleged defamation where he admits the truth of the communications attributed to the defendant." (Punctuation omitted.) Kersey v. United States Shoe Corp.[6] Accordingly, the trial court properly granted summary judgment on the ground that the statements in Couture's letter concerning McCall's legal and financial difficulties were true. See id. at 658, 440 S.E.2d 250; Speedway Grading Corp., supra, 206 Ga.App. at 441(1), 425 S.E.2d 676.
2. McCall also contends that the trial court erred in granting summary judgment on the ground that the statements in Couture's letter to the Board regarding McCall's ability to serve as treasurer constituted opinion. Once again, we agree with the trial court.
"The expression of opinion on matters with respect to which reasonable men might entertain differing opinions is not libelous." (Punctuation omitted.) Webster v. Wilkins.[7] "An assertion that cannot be proved false cannot be held libelous. A writer cannot be sued for simply expressing his opinion of another person, however unreasonable the opinion or vituperous the expressing of it may be." (Punctuation omitted.) Gast v. Brittain.[8] "However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." (Punctuation omitted.) Webster, supra, 217 Ga.App. at 195-196(1), 456 S.E.2d 699. "An opinion can constitute actionable defamation if the opinion can reasonably be interpreted, according to the context of the entire writing in which the opinion appears, to state or imply defamatory facts about the plaintiff that are capable of being proved false." Gast, supra, 277 Ga. at 341, 589 S.E.2d 63.
In this matter, McCall argues that the statements in Couture's letter to the Board, declaring that McCall was a "weak link" and that he should not be allowed to retain the responsibility of managing the Board's finances as treasurer in light of his inability to manage his own finances, constituted defamation. However, such statements are wholly subjective opinion not capable of proof and thus cannot support an action for defamation against Couture. See Gast, supra, 277 Ga. at 341-342, 589 S.E.2d 63; Blomberg v. Cox Enterprises;[9]Webster, supra, 217 Ga.App. at 196(1), 456 S.E.2d 699. Furthermore, given that Couture's letter specifically states that he is not insinuating that McCall has mismanaged the Board's funds, his opinions cannot reasonably be interpreted to state or imply any defamatory facts about McCall that are capable of being proved false. See Gast, supra, 277 Ga. at 342, 589 S.E.2d 63. Accordingly, the trial court properly granted summary judgment on the ground that the statements in Couture's letter to the Board regarding McCall's ability to serve as treasurer constituted opinion and thus could not support a defamation action.
*641 3. In light of our holdings in Divisions 1 and 2, we conclude that the trial court did not err in granting summary judgment to Couture as to all of McCall's claims. Accordingly, we need not address McCall's contention that the trial court erred in finding that the statements in Couture's letter were privileged.
Judgment affirmed.
MILLER and ELLINGTON, JJ., concur.
NOTES
[1]  Britt v. Kelly & Picerne, Inc., 258 Ga.App. 843, 575 S.E.2d 732 (2002).
[2]  McCaskill v. Carillo, 263 Ga.App. 890, 589 S.E.2d 582 (2003).
[3]  Although McCall's complaint mentions both written and oral defamation, his appeal only addresses the statements contained in Couture's letter to the R-Ranch Owners' Association Board. Accordingly, whether that letter constitutes libel is the sole focus of our opinion.
[4]  Nelson v. Glynn-Brunswick Hosp. Auth., 257 Ga.App. 571, 573(1), 571 S.E.2d 557 (2002).
[5]  Speedway Grading Corp. v. Gardner, 206 Ga. App. 439, 441, 425 S.E.2d 676 (1992).
[6]  Kersey v. United States Shoe Corp., 211 Ga.App. 655, 657, 440 S.E.2d 250 (1994).
[7]  Webster v. Wilkins, 217 Ga.App. 194, 195(1), 456 S.E.2d 699 (1995).
[8]  Gast v. Brittain, 277 Ga. 340, 341, 589 S.E.2d 63 (2003).
[9]  Blomberg v. Cox Enterprises, 228 Ga.App. 178, 181(1), 491 S.E.2d 430 (1997).