UNITED STATES of America v. Carlton E. BRYANT, Appellant. UNITED STATES of America v. William E. TURNER, Appellant.
Nos. 23957, 24105.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 26, 1970. Decided Jan. 29, 1971.
439 F.2d 642
Mr. David Applestein, Washington, D. C. (appointed by this court), for appellant in No. 24,105.
Mr. Brian W. Shaughnessy, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.
Before WRIGHT and McGOWAN, Circuit Judges, and JOHNSON,* Chief Judge, United States District Court for the Middle District of Alabama.
J. SKELLY WRIGHT, Circuit Judge:
These cases point up an anomaly of our criminal process: controlled by rules of law protecting adversary rights and procedures at some stages, the process at other stages is thoroughly unstructured. Beside the carefully safeguarded fairness of the courtroom is a dark no-man‘s-land of unreviewed bureaucratic and discretionary decision making. Too often, what the process purports to secure in its formal stages can be subverted or diluted in its more informal stages. That, we are told, is what happened here.
The right at stake in the cases before us is defendant‘s discovery of evidence gathered by the Government, evidence whose disclosure to defense counsel would make the trial more a “quest for truth” than a “sporting event.”1 This safeguard of a fair trial is surely an important one; but here it was undercut at the pretrial period by bureaucratic procedures and/or discretionary decisions of Government investigative agents who made no effort to preserve discoverable material. When defense motions for discovery were made, it turned out that the material was unaccountably “lost.” The issue presented is whether intentional non-preservation by investigators—as opposed to bad faith destruction or prosecutorial withholding—of discoverable evidence amounts to its illegal suppression.2 Although we remand these cases for a further hearing on the investigators’ conduct, we require rigorous procedures to govern preservation of such evidence by federal investigative agencies, including the District of Columbia police, in the future.
I
Appellants Bryant and Turner, with Herbert Johnson whose case is not now on appeal, were convicted of offenses involving the sale of a substantial quantity of heroin. The sale was negotiated and concluded with John Pope, an undercover agent of the Bureau of Narcotics and Dangerous Drugs normally stationed in Detroit but flown to Washington, D. C. for the occasion. At appellants’ trial,
Agent Pope‘s story, in its bare essentials, was as follows: After arriving in Washington, he took a room at a Holiday Inn and contacted Johnson who expressed an interest in doing “some business.” Later that evening Johnson, accompanied by others not indicted as codefendants, visited the motel room. A general discussion of prices and quantities of heroin ensued; and Johnson said he would return the next day with “his man,” “his source of supply,” in order to make more specific arrangements. Around noon on the following day, Johnson and appellant Bryant came to see Agent Pope at the motel. Bryant and Agent Pope immediately commenced negotiations. After several minutes’ discussion, Bryant “okayed” the sale of a particular quantity of heroin at a particular price and left. Johnson lingered to tell Agent Pope that he would return later to make the transfer. Again true to his word, Johnson came to the motel room that evening, accompanied this time by appellant Turner whom he introduced as his “runner.” The trio had a general conversation about the narcotics business in which Turner took active part. They then left for Johnson‘s house to pick up the heroin. Johnson and Turner measured out a quantity of the drug and then the three men again returned to the motel room. There, Agent Pope paid for the heroin and, after another general conversation among the three about future narcotics business they might transact, Johnson and Turner left for the last time.
Without Agent Pope‘s account of the motel room conversations, the Government would have had almost no evidence against appellant Bryant and a much weaker case against appellant Turner. Its theory was that the appellants aided and abetted in the sale of heroin by Johnson, and the testimony as to the motel conversations was necessary to clarify their roles as active participants. See Bailey v. United States, 135 U.S.App.D.C. 95, 416 F.2d 1110 (1969). Besides Agent Pope, the Government presented only two other witnesses: a surveillance agent who had observed the comings and goings outside the motel but knew nothing of where appellants went or what they did once inside, and a chemist who identified the heroin that had been transferred. Appellants did not testify. Thus it was that the credibility of Agent Pope‘s story became the key to conviction.
Such need not have been the case. For this was no shoestring investigative operation on the part of the Bureau; it was a major effort involving many agents and careful precautions. Agent Pope was not alone in the Holiday Inn. In the room next to his were other agents who had bored a hole in the connecting wall and were not only listening in on the crucial conversations, but were also recording them on a tape recorder. There can be little if any doubt that that tape would have been more reliable than Agent Pope‘s recollection as evidence of what appellants’ roles in the heroin sale actually were. Agent Pope testified that he took no notes on the conversations until after they were over, and even then he made only very sketchy notes on his hand and on scraps of paper. He did not prepare a full report until he had returned to Detroit as much as one to four days later. The trial occurred a full year after the conversations and sale took place. Even assuming absolute good faith on Agent Pope‘s part, there was amply sufficient occasion to forget or inaccurately reconstruct what went on. Although the agent‘s report was turned over to appellants at trial, it could hardly substitute for the tape and eliminate the possibility of serious prejudice. It is possible, after all, that the tapes might have revealed that there was no discussion whatever of a narcotics deal while appellants were in the motel room or that they in no way participated in the conversations. More probably, the tape might have clarified
When defense counsel heard rumors of the tape‘s existence, they recognized its obvious importance and made repeated efforts to discover it. At each juncture their efforts were frustrated. At the preliminary hearing, almost seven months before trial, the Assistant United States Attorney objected to a question concerning the possible existence of a tape recording, and his objection was sustained. And at a discovery conference three months later he stated that he knew of no tape, but would inform defense counsel if one came to his attention. Indeed, although the prosecution had long been on notice of defendants’ interest in the tape, it was not until a few days before the trial that the Assistant United States Attorney told defense counsel that a tape had been made but that it had apparently been “lost” somewhere at the Bureau of Narcotics and Dangerous Drugs and had never been turned over to the prosecution. Finally, just before the beginning of the trial, a hearing was held on a defense motion to discover the tape or, alternatively, to dismiss the indictment. At that hearing, Agent Warden—the Bureau agent in charge of the taping—testified as to the circumstances of the tape‘s recording and loss. The motion was denied by the trial judge, but Agent Warden‘s testimony set the stage for this appeal.
Warden‘s recollection of most relevant matters was extraordinarily vague. He constantly qualified his statements with “possibly” or “probably” or simply settled for “I don‘t know.” He was clear on only a few facts. After the agents left the Holiday Inn, Agent Warden brought the tape to his office at the Bureau and some time soon thereafter played it back. Apparently the quality of the recording was adequate, since Warden testified that he could hear the conversation and could identify the speakers. Yet he was unsure whether he asked any of his colleagues—even Agent Pope—to listen to the tape. And it was not long before the tape seems to have disappeared; Agent Warden did not recall when he last saw it. He did not inform the Assistant United States Attorney about the tape until approximately ten months later, two months before the trial. When he was asked to look for it, he checked his desk and his personal safe, but to no avail.
The agent was unequivocal on one other matter—indeed, the most crucial matter to this appeal. He made no pretense of having had any intention to preserve the tape. Rather, he stated flatly that he made no effort to preserve it. He testified that when Bureau agents make a tape which they intend to save for use in prosecution they take the following steps to see that it is preserved: “It would have been marked in the front of the tape, the nature of the conversations. There would have been my name placed on there, the date, time, and if it was to be used as evidence of some kind, it would have been kept in a locked safe.” But in this case:
Q You didn‘t mark, at all, the place, the time, the occurrence?
A No, I didn‘t mark it.
Q Well, above and beyond the use in court, isn‘t this just standard operating procedure, to at least mark a tape of conversation, with the date, the time, the people involved?
A If you want to keep the tape, you do. There wasn‘t a need to keep the tape, and it wasn‘t so marked, that I know of.
Agent Warden testified further that in making his decision not to preserve the tape he was not guided by his superiors in the Bureau, nor did he contact the United States Attorney‘s office. He had never intended the tape to be used as evidence at trial, he said,3 and he appar-
It is important to recognize that this is not a case of a good faith effort to preserve highly relevant evidence, frustrated only by inadvertent loss. Rather, it is a case of intentional non-preservation by an investigative official. On a spectrum between good faith but inadvertent loss and bad faith destruction, Agent Warden‘s conduct must lie somewhere in the middle. Perhaps it should lie somewhat closer to the latter end. For, despite the overriding vagueness of Agent Warden‘s testimony, there is at the very least a hint of bad faith in the record. A highly disturbing element of the agent‘s conduct is his apparent reluctance to let even the United States Attorney‘s office know that a tape recording had ever been made. When the defense called Agent Warden as a witness at trial, he testified concerning the report he filed with the prosecutor:
Q And this report is detailed in that it sets forth everything that happened minute by minute so far as the actions of yourself, Agent Pope and the other agents who were involved in the investigation; correct, sir?
A That‘s correct.
Q Indicating the trucks that were rented, the walkie-talkies that were used and all the other electronic equipment that was used in this case?
A It was complete.
Q It is complete except nowhere in the report does it indicate you had a tape recorder monitoring all the con-*versation that was going on in Room 607 on the 30th or the 31st?
A That wasn‘t in there—
* * * * * *
Q It is detailed with everything except that; is that correct, sir?
A There is no mention in there of it, no, sir.
At issue, then, are the legal consequences of intentional non-preservation by investigative officials of highly relevant evidence, colored by clear reluctance even to admit that the evidence ever existed at all.
II
Access by defense counsel to certain evidence gathered by the Government is protected by both constitutional and statutory safeguards in the federal criminal process. A series of Supreme Court decisions, most particularly Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), creates a due process requirement that certain materials be disclosed to the defense;4 and
In the leading Supreme Court decisions concerning the due process requirement of disclosure, the content of the non-disclosed evidence has always been known. The standard of constitutional coverage thus has turned upon the extent to which the evidence is “favor-3able” to the accused.6 Although the Su-
But in these cases we are entirely in the dark. We have no idea what may have been on the tape. For all we know, the tape would have corroborated Agent Pope‘s story perfectly; or, for all we know, it might have completely undercut the Government‘s case.10 There is not simply “substantial room for doubt,” but room for nothing except doubt as to the effect of disclosure. What we do know is that the conversations recorded on the tape were absolutely crucial to the question of appellants’ guilt or innocence. That fact, coupled with the unavoidable possibility that the tape might have been signifi-3cantly “favorable” to the accused, is enough to bring these cases within the constitutional concern. If the due process requirement is directed to evidence whose non-disclosure “might” have harmed the accused, its purpose clearly reaches the type of missing evidence at issue here. Were Brady and its progeny applicable only when the exact content of the non-disclosed materials was known, the disclosure duty would be an empty promise, easily circumvented by suppression of evidence by means of destruction rather than mere failure to reveal. The purpose of the duty is not simply to correct an imbalance of advantage, whereby the prosecution may surprise the defense at trial with new evidence; rather, it is also to make of the trial a search for truth informed by all relevant material, much of which, because of imbalance in investigative resources, will be exclusively in the hands of the Government.11
The statutory safeguards more clearly deal with tape recordings such as the one before us. These safeguards refer not to the probative effect of the evi-*dence but to its general nature.
The
In two cases involving tape recorded conversations between defendants and Government witnesses—as in the cases before us—the Second Circuit has read the
The fact that it was the Bureau of Narcotics and Dangerous Drugs, and not the United States Attorney‘s office, which had possession of the tape in these cases does not render it any less discoverable. The duty of disclosure affects not only the prosecutor, but the Government as a whole, including its investigative agencies.
III
The complicating factor in these cases is, of course, that non-disclosure both before and at trial was due to the tape‘s “loss” by investigative officials. The issue now facing us is the extent to which the circumstances of the loss absolve the Government of its disclosure duty or alter the appropriate sanction for non-disclosure. The Government argues that loss per se is enough to defeat the duty of disclosure. Under the constitutional requirement, it seems to stress the Supreme Court‘s use of the word “suppression” of evidence, and suggests that evidence cannot be “suppressed” which is not in Government possession at the time discovery is requested. The Government also relies upon the references in
Technically, it may be that evidence which cannot be found is not in the Government‘s “possession.” And, of course, that which the Government does not have it cannot disclose. But this line of reasoning is far too facile, and clearly self-defeating. The language of Brady,
In the cases before us, of course, the crucial evidence was not preserved. Thus the issue is whether full sanctions for non-disclosure ought to be invoked absolutely, or whether imposition of sanctions ought to depend upon the circumstances of the material‘s disappearance. Most instructive is the Supreme Court‘s recent decision in United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969). In Augenblick, tapes had been made of the interrogation of a Government witness in a military court martial. Yet when the defendant requested discovery of the tapes, he was told that they could not be found. The Supreme Court stated that there was no credible indication that the evidence was “suppressed,” presumably meaning bad faith suppression. Nonetheless, it held that “the Government bore the burden of producing [the tapes] or explaining why it could not do so.” 393 U.S. at 355-356, 89 S.Ct. at 533. It found the Government‘s explanation adequate, noting that, although the tapes’ whereabouts were a complete “mystery,” the Government had introduced extensive testimony on “the Navy‘s routine in handling and using such recordings” and had made “an earnest effort” to find them. 393 U.S. at 355, 89 S.Ct. at 533. Apparently there was no indication of negligence in the handling of the tapes. Under those circumstances, the Court held that there had been no violation of the due process clause even though the evidence was clearly discoverable under the
Augenblick not only makes clear that the circumstances of the tape‘s disappearance in these cases should be relevant to the question of proper sanctions. It also suggests that, while sanctions should be imposed in cases of bad faith suppression of evidence, an exception will be made for good faith loss. Explicitly based on constitutional reasoning, Augenblick also must apply to sanctions under the
A more amorphous definition of “earnest efforts” would be difficult to administer and would inevitably deal less evenhandedly with individual defendants. A right so crucial as that of disclosure ought not to be built on such shifting sands. It ought, rather, to be protected by rules, systematically applied and systematically enforced.23 By requiring that the discretionary authority of investigative agents be controlled by regular procedures for preserving evidence, we intend to ensure that rights recognized at one stage of the criminal process will not be undercut at other, less visible, stages.
In the cases before us, of course, there were no adequate regular procedures and none had been required. Hence we must employ a more ad hoc approach here. Our difficulty is that these cases lie in a middle ground between bad faith and good faith loss. Agent Warden‘s failure to preserve the tape was intentional; he made no “earnest effort” either to turn it over to the United States Attorney‘s office once it was requested or to preserve it in the first place. At the least, he handled the evidence with regrettable negligence.
A panel of the Second Circuit has considered a case involving negligent loss of evidence and has imposed the sanction of a new trial.24 But there the evidence had later been found and the duty of disclosure could be satisfied at the new trial. Here, on the other hand, there is no indication that the tape will ever be found. A new trial would be simply a repetition of the first trial, similarly infected by non-disclosure of discoverable evidence. And a new trial without Agent Pope‘s testimony—a sanction under the
That is a choice which we are unwilling to make on the basis of the record before us. Agent Warden‘s testimony was far too vague and the suggestion of bad faith too shallowly explored. Further testimony from Agent Warden and from all other agents who may have had contact with the tape should clarify the degree of negligence, and possibly of bad faith, involved. Further inquiry into the regular procedures, if any, followed by the Bureau of Narcotics and Dangerous Drugs at the time would also be relevant; if it appears that in fact Agent Warden was simply following regular Bureau practice—inadequate though it was—the degree of his negligence might be somewhat reduced. A further inadequacy of the record before us is the lack of evidence concerning the conduct of the Assistant United States Attorney after he had been put on notice by defense counsel of the tape‘s possible existence. If he made any effort at that time to preserve the tape, there is no indication of it. Testimony in that regard should clarify the extent to which the prosecution sought to fulfill its duties under the disclosure requirement.
As indicated, in the future decision on the question of sanctions in cases such as these will be guided by the preservation requirement announced above, and negligence will be no excuse. On remand here the District Court should weigh the degree of negligence or bad faith involved, the importance of the evidence lost, and the evidence of guilt adduced at trial in order to come to a determination that will serve the ends of justice.
Remanded for proceedings consistent with this opinion.
McGOWAN, Circuit Judge (concurring):
I join in the court‘s disposition of this appeal, but I am perhaps not as sanguine as my colleagues that the proceedings on remand will illuminate what happened here more completely than does the present record. Agent Warden, in his testimony at the suppression hearing, seems to me to have given a forthright and by no means incredible account of the events in question, and I doubt that further pursuit of the matter will add much to what we now know of the fate of the tape. This is not to say that the premises on which he proceeded were soundly conceived as a matter of law, but his conduct strikes me as far from having a sinister cast. Thus it is that we will, in all probability, continue to confront on essentially the same terms the issue we now face, namely, whether the sanction of suppression is either necessary or appropriate under the circumstances revealed by this record.
Warden testified quite explicitly that he distinguished between tapes of conversations participated in by one of the Bureau‘s own agents, on the one hand, and third-party informants, on the other. In the latter case, it was his practice to preserve the tape with care for future use as corroborating evidence at trial. In the case of his own men, his single purpose was to assure their personal safety in the exposed and dangerous po-
When Agent Pope was placed in the hotel room by himself to meet with dangerous characters in the narcotics business, Warden, not surprisingly, thought it his responsibility to give him all possible protection. To this end, an adjoining room was taken, and a hole drilled in the wall. A listening device was placed in the hole, and agents in the next room listened by means of earphones. The device used was unitary in character, and, in addition to the individual earphones, its operation included recording on tape.3 If the overheard conversations took a turn which indicated personal danger to Pope, the agents in the adjoining room could move speedily to his aid. The tape, as Warden conceived it, was purely incidental to this objective, and had no further utility once the interview had terminated without harm to Pope.
What Warden failed to recognize was that the tape became a piece of real evidence having “materiality to the preparation of [appellant‘s] defense” within the meaning of
Although I doubt that further inquiry will enlarge materially our knowledge of Warden‘s motivations or of what actually happened to the tape, it may be of some utility in ventilating how far the Bureau goes in providing prior legal planning and supervisory scrutiny of its investigative operations. If Warden did not have this kind of legal help, then this is only another instance of the deplorably familiar lack of forward legal planning in law enforcement. Corporations and private persons get into trouble when they forego this kind of assistance. So do public authorities.
The hearing on remand should also be informative as to why the prosecutor was not more alert to the legal significance of the existence or non-existence of the tape. Had he moved sooner, the tape might still have been found in Warden‘s desk, unerased. When the matter was first raised seven months before trial, the prosecutor‘s reaction was the stock one of automatically opposing discovery. Having succeeded in that misconceived gambit, he appears to have done nothing more. This, too, is not the kind of legal help that operational law enforcement personnel are entitled to have, even after the fact.