UNITED STATES of America v. Elizabeth RAMOS, a/k/a Lisi, Elizabeth Ramos, Appellant; UNITED STATES of America v. Maria RAMOS, a/k/a “Donita“, Maria Ramos, Appellant
Nos. 93-1220 and 93-1222
United States Court of Appeals, Third Circuit
June 23, 1994
27 F.3d 65
Argued Oct. 25, 1993.
IV.
Having concluded that the imposition of sanctions in this case was contrary to the supervisory rule adopted by this court in Pensiero, as well as the requirements of the Due Process Clause of the Fifth Amendment, we will reverse the order of the district court and vacate the award of sanctions to the State defendants.
FULLAM, J., concurring
Because the practice of issuing prospective rulings in the purported exercise of “supervisory power” is firmly entrenched, I agree that this court‘s decision in Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90 (3rd Cir. 1988), compels reversal of the sanction order involved in this appeal. I do not agree, however, that Pensiero does more than require that motions for sanctions be filed before final judgment; the Pensiero court did not purport to ‘supervise’ the timing of the district court‘s ruling on such motions, except perhaps to the extent of urging that the ruling be made with sufficient speed to enable consolidation of the sanction appeal with the appeal on the merits. In the present case, there was no motion for sanctions; and the issue was first raised some three months after judgment. Under any view of the matter, I agree that this was too late.
I join in Part III(C) of the majority opinion.
Robert E. Madden (argued), Law Offices of Robert E. Madden, Philadelphia, PA, for appellant Maria Ramos.
Kristin R. Hayes, Robert A. Zauzmer (argued), Office of U.S. Atty., Philadelphia, PA, for appellee.
Before: BECKER, ROTH and LEWIS, Circuit Judges.
OPINION OF THE COURT
LEWIS, Circuit Judge.
We confront, once again, a problem which no court, trial or appellate, should have to face in this circuit. Although we have unequivocally required since 1977 that government agents preserve rough notes of interviews with prospective trial witnesses, see United States v. Vella, 562 F.2d 275 (3d Cir.1977) (per curiam), this case presents yet another instance in which notes were destroyed. We do not reverse here because it is apparent to us that the destroyed notes did not constitute Jencks Act1 or Brady2 material and that the officers who destroyed them acted in good faith. Nonetheless, we take this opportunity to emphasize that the fortuitous mix of legal and factual circumstances which might excuse the destruction
I.
Appellants Maria and Elizabeth Ramos, mother and daughter, were convicted of conspiracy to distribute cocaine and cocaine base, possession of cocaine with intent to distribute and related charges arising out of their involvement in a family-operated drug ring. The original indictment targeting the Ramos family conspiracy charged 39 defendants, including three of Maria Ramos‘s sons, with various drug distribution and possession charges. The majority of those charged began to cooperate, and a superseding indictment followed. Maria Ramos and Elizabeth Ramos were first charged in the superseding indictment.
At trial, the government‘s case against the Ramoses was supported by the testimony of 13 co-conspirators who cooperated pursuant to plea agreements. The government agrees that “the testimony of co-conspirators was the cornerstone of the evidence against the defendants.” Government‘s brief at 12 n. 2.
Detective James Moffit and his partner, Sergeant Gerald Logan, interviewed the cooperating witnesses and took notes during their initial debriefings, or “proffers,” in late 1990 or early 1991. Both were long-time Philadelphia police officers who began working with the federal government on this investigation in the fall of 1989 in association with the federal Drug Enforcement Administration (“DEA“). Logan described himself as being “assigned” to the DEA; Moffit termed his position as one in which he was “detailed” or “cross-designated” to the DEA. App. at 1060, 1277, 2263. Both had been “sworn in” by the DEA and were issued DEA credentials. See app. at 1278.
It is undisputed that Moffit and, apparently, Logan3 destroyed their notes after they prepared summary reports (“DEA-6s“). Appellants contend that this destruction mandated suppression of the officers’ testimony or a mistrial, both of which the district court denied. (Elizabeth Ramos had moved for production of the notes prior to trial, while Maria Ramos first raised the issue of the destruction of the notes during Moffit‘s cross-examination at trial; it was her counsel who initially moved for a mistrial and for suppression of Moffit‘s testimony. See generally app. at 1285-96.)
The district court exercised jurisdiction over this case pursuant to
II.
Criminal pretrial discovery is, of course, vastly different from discovery in civil cases.
In United States v. Vella, 562 F.2d 275 (3d Cir.1977) (per curiam), we held that “the rough interview notes of F.B.I. agents should be kept and produced so that the trial court can determine whether the notes should be made available to the [defendant] under the rule of Brady or the Jencks Act.” Vella, 562 F.2d at 276. See also United States v. Ammar, 714 F.2d 238, 259 (3d Cir.1983) (extending rule to require preservation of rough drafts of agents’ reports); United States v. Harris, 543 F.2d 1247 (9th Cir.1976); United States v. Harrison, 524 F.2d 421, 428-29 (D.C.Cir.1975). Since then, the DEA has apparently adopted an internal policy requiring such retention. See government‘s brief at 34. But we need not decide whether our holding in Vella or the DEA‘s policy was followed in this case; there is simply no question that they were not. Instead, the only question before us is: what should be done about a clear failure to follow established rules and policy?
In Vella and Ammar, we explained the requirement for retaining rough notes of interviews in such unambiguous terms that it would be futile to try to elucidate further here, for what we meant cannot be stated more clearly. See Ammar, 714 F.2d at 259 (“the government must retain and, upon motion, make available to the district court both the rough notes and the drafts of reports of its agents to facilitate the district court‘s determination whether they should be produced“); Vella, 562 F.2d at 276 (“rough interview notes should be kept and produced“). Though we did not address the point directly, arguably a case could be made that the unequivocal tone of our decisions in these cases implied that we would reverse a conviction where the government failed to abide its responsibility (indeed, its legal obligation), no matter what factors might have contributed to the destruction of notes or drafts of reports. Cf. United States v. Parker, 549 F.2d 1217 (9th Cir.1977) (violation of Harris rule “might arguably” have required reversal but for court‘s decision not to apply it retroactively). We have not previously stated explicitly whether our holding in Vella established a per se rule or one which is subject to a “good faith exception” or harmless error analysis.
A careful reading of both Vella and Ammar, however, suggests that we did not imply a rule which would automatically preclude evidence based upon destroyed rough notes, without regard for other considerations. In Vella, without elaboration, we stated that “in light of the other evidence in the record, as well as the apparent good faith administrative decision which led to the destruction of the notes, the error must be considered harmless.” Vella, 562 F.2d at 276. Similarly, in Ammar, we refused to find an alleged Jencks Act violation in the destruction of rough drafts because (1) the handwritten drafts had not been shown to the agent‘s supervisor for adoption or approval, and (2) the agent had testified that the rough drafts and final reports were “substantially identical,” so that even if the drafts
Our decision is informed by Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), a case in which the Arizona police had failed to preserve semen samples from the body and clothing of a victim of a sexual assault. The defendant contended that the failure to preserve the evidence had deprived him of due process. The Supreme Court disagreed. It concluded that although Brady “makes the good or bad faith of the State irrelevant when [it] fails to disclose to the defendant material exculpatory evidence[,] the due process clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Youngblood, 488 U.S. at 57, 109 S.Ct. at 337. Thus, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58, 109 S.Ct. at 337; See also California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (police officers’ failure to preserve breath samples which had been subjected to Intoxilyzer testing did not violate the Constitution when (1) the officers were acting “in good faith and in accord with their normal practice,” (2) the chances that preserved samples would have been exculpatory were “extremely low,” and (3) the defendants had other means of challenging the Intoxilyzer results); United States v. Deaner, 1 F.3d 192, 199-201 (3d Cir.1993) (district court did not err in relying on the government‘s evidence of the weight of marijuana plants in sentencing defendant despite the government‘s destruction of the plants without producing them to the defendant); United States v. Barton, 995 F.2d 931 (9th Cir.1993) (government‘s negligent destruction of marijuana plants which possibly could have disproved agents’ statement in affidavit of probable cause held not violative of due process absent a showing of bad faith on the agents’ part).
Youngblood and Trombetta indicate that we should apply a “good faith” test to destruction of evidence. In this case, since the appellants raised Brady and Jencks Act issues, we will first proceed to analyze whether either Brady or Jencks Act material might have been present in the destroyed notes. Only after ascertaining that it was not present will we move on to a good faith analysis.5
A.
We may quickly dispose of the Jencks Act issues. The Jencks Act requires a court, upon motion of the defendant and after direct examination of a government witness, to order the United States to produce to the defense “any statement ... of the witness in [its] possession ... which relates to the subject matter as to which the witness has testified.”
(1) a written statement made by said witness and signed or otherwise adopted or approved by him; [or]
(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with making of such oral statement.
The destroyed rough notes fall into neither of these categories. They clearly do not constitute “statements” of the cooperating co-conspirators, for they are neither “substantially verbatim recitals” of what those witnesses said during their proffers nor writ-
B.
The Brady issue is more complex. In Vella, we relied on United States v. Harrison, 524 F.2d 421 (D.C.Cir.1975), in requiring preservation of rough notes. The Harrison court explained:
It seems too plain for argument that rough notes from any witness interview could prove to be Brady material. Whether or not the prosecution uses the witness at trial, the notes could contain substantive information or leads which would be of use to the defendants on the merits of the case. If the witness does testify, the notes might reveal a discrepancy between his testimony on the stand and his story at a time when the events were fresh in his mind. The discrepancy would obviously be important to use in impeaching the witness’ [sic] credibility. The possible importance of the rough notes for these purposes is not diminished in cases where the prosecutor turns over to the defense the reports.
... The reports contain the agent‘s narrative account of the witness‘s statement, prepared partly from the rough notes and partly from the agent‘s recollection of the interview. Although the agents are trained to include all the pertinent information in the report, there is clearly room for misunderstanding or outright error whenever there is a transfer of information in this manner. In the best of good faith, the statement may, to some degree at least, reflect the input of the agent. In such a situation, the information contained in the rough notes taken from the witness himself might be more credible and more favorable to the defendant‘s position.
Id. at 427-28 (footnote omitted). If, as some believe, our ability to know something is largely determined by that to which we have been exposed and by the varying capacities of our sensory perception and reasoning skills, then Harrison essentially states the obvious: it is impossible to know for certain whether or not rough notes which have been destroyed would have been exculpatory, or whether their exculpatory nature would have been apparent to the agents at the time of the destruction, because they are no longer here for us to see, to analyze, to interpret. Whatever truths might have been gleaned from them, and whatever contributions these truths might have offered to the doing of justice, were destroyed along with the notes themselves. Thus, if the evil sought to be eliminated by requiring preservation of notes was the uncertainty about whether the notes would have contained Brady material, then excusing their destruction as long as it was done in good faith would seem to undercut both the rule and its purpose. It is difficult to imagine, for example, how a court could determine whether the exculpatory nature of an agent‘s notes would have been apparent to the agent before destruction without first reviewing the notes. Similarly, without knowing what inconsistencies, if any, the notes contained, a court will undoubtedly find
Nevertheless, the mere possibility that the destroyed notes might have included Brady material, without more, is insufficient to implicate such concerns. We think it unwise to infer the existence of Brady material based upon speculation alone. Instead, we favor the approach taken by the United States Court of Appeals for the Ninth Circuit in Griffin, that “unless [a] defendant is able to raise at least a colorable claim that the investigator‘s discarded rough notes contained evidence favorable to [him] and material to his claim of innocence or to the applicable punishment — and that such exculpatory evidence has not been included in any formal interview report provided to defendant — no constitutional error of violation of due process will have been established.” Griffin, 659 F.2d at 939. At the risk of pushing understatement to the brink of rationality, we acknowledge, as did the court in Griffin, that attempting to make such a showing by examining the agents and interviewees or using other documentary evidence is “not as ideal” as examination of the notes themselves would be. To conclude otherwise, however, would be to read Brady too broadly, requiring “the government to preserve all material even arguably related to the criminal transaction.” Id. at 939 & n. 7.
In this case the defendants have offered nothing beyond their speculation that the agents’ notes might have contained Brady material. In response, the government indicated that Moffit had incorporated everything contained within the notes into the DEA-6s. App. at 1448, 1452. Cf. app. at 1282. There was no suggestion by anyone in a position to know (that is, the witnesses or the officers) that the DEA-6s differed in any way from the oral proffers that would have been reflected in the destroyed notes. Further, at trial the district court examined all the notes that had been preserved from later witness proffers and ordered production of about 20 pages. These pages did not reveal any Brady material and defense counsel chose not even to cross-examine Moffit with regard to them. (While we draw no firm conclusion here, this at least tends to indicate that the chances of damaging material existing in the destroyed notes were somewhat remote, assuming the officers were consistent throughout, both in their method and practice of transcribing their written notes.) Appellants have not raised a colorable claim that the destroyed notes contained exculpatory material that was material to their defense and was not included within the DEA-6s. Therefore, we conclude that the destruction of the notes did not constitute a Brady violation. Cf. United States v. Michaels, 796 F.2d 1112, 1116 (9th Cir.1986); United States v. American Radiator & Standard Sanitary Corp., 433 F.2d 174, 202 (3d Cir.1970) (both holding that defendants’ mere speculation that Brady material might be present is insufficient to permit perusal of government files).
C.
It is undisputed that Moffit and Logan destroyed their notes in good faith. They are Philadelphia police officers, not DEA agents, and Moffit testified that the federal practice of retaining records of a cooperating-witness interview is “completely different” from the Philadelphia police department‘s. App. at 1065-66. In the Philadelphia police department, at least at the time the events with which we are concerned took place, the officers “consider [notes] sensitive material” that they “don‘t leave around at all.” Id. at 1106. Philadelphia police officers retain the reports they draft based upon their notes but destroy the notes. Id. at 1108-09.
Moreover, Moffit received no special training and no orientation for his work with the DEA. App. at 1278.7 He was instructed as to the “general mechanics” of DEA-6s but
We are well aware of the critical contribution the DEA and its agents make to the national effort to control illegal drug trafficking and to combat illegal drug use. Indeed, we have not lost sight of the fact that the issue before us is derived precisely from that laudable and important campaign. But we cannot approve of the way in which Moffit and, presumably, Logan were trained. It is regrettable that the DEA failed to instruct officers affiliated with it to preserve the rough notes taken at proffer sessions, particularly after we have made it abundantly clear that it is required to do so and its own internal guidelines mandate that it do so. Our affirmance in this case is in no way intended to encourage or to permit lax compliance with the dictates of due process under the guise of good-faith ignorance. To the contrary, we expect more of the government. And if there were evidence indicating a deliberate or, under circumstances not present here, even a negligent contravention of the Vella rule, we would very likely reach a different conclusion.
As we have noted, however, in this case it seems clear that the officers (who, significantly, were only loosely connected to the DEA) were entirely unaware that they should preserve their notes, and that their past experience indicated that they were to destroy them. The defense has produced no evidence to the contrary, relying instead on speculation and the argument that contravention of the Vella rule automatically constitutes bad faith. See E. Ramos‘s brief at 18-23. We cannot rest our decision in this case on such conclusory allegations, and for the reasons discussed above, we decline the invitation to fashion a per se rule in this area.
III.
In conclusion, because the destroyed notes did not constitute Jencks Act materials, there is nothing beyond speculation to indicate that they contained Brady material, and the officers clearly acted in good faith in destroying them, we will affirm the district court‘s denial of appellants’ motion for suppression or, in the alternative, a mistrial. The judgment of conviction is affirmed.
In re MODULAR STRUCTURES, INC., Debtor. FIRST INDEMNITY OF AMERICA INSURANCE COMPANY, Appellant, v. MODULAR STRUCTURES, INC.; First Fidelity Bank, N.A., Theodore Liscinski, Esq., Trustee.
No. 92-5577.
United States Court of Appeals, Third Circuit
June 23, 1994.
Argued July 2, 1993.