United States v. Ramos ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
6-23-1994
United States of America v. Ramos
Precedential or Non-Precedential:
Docket 93-1220
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 93-1220 and 93-1222
___________
UNITED STATES OF AMERICA
vs.
ELIZABETH RAMOS, a/k/a Lisi
Elizabeth Ramos,
Appellant No. 93-1220
___________
UNITED STATES OF AMERICA
vs.
MARIA RAMOS, a/k/a "Donita"
Maria Ramos,
Appellant No. 93-1222
___________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal Nos. 90-00431-41 and 90-00431-40)
___________
ARGUED OCTOBER 25, 1993
BEFORE: BECKER, ROTH and LEWIS, Circuit Judges.
(Filed June 23, 1994)
___________
Thomas Q. Ciccone, Jr. (ARGUED)
1004 Sorrel Road
Huntingdon Valley, PA 19006
Attorney for Appellant Elizabeth Ramos
Robert E. Madden (ARGUED)
Law Offices of Robert E. Madden
1401 Walnut Street
Suite 300
Philadelphia, PA 19102
Attorney for Appellant Maria Ramos
Kristin R. Hayes
Robert A. Zauzmer (ARGUED)
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Attorneys for Appellee
___________
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 of notes, and
thus constrain us to leave a conviction undisturbed, are few and
far between. We should not encounter such cases in the future.
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
1
18 U.S.C. § 3500.
2
Brady v. Maryland, 373 U.S. 83 (1963).
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.)
3
Though not disputed, whether both officers or only Moffit
destroyed notes remains unclear. Appellants focus on
Moffit, but the government speaks in the plural, discussing
the "officers' destruction of notes." Because both Moffit
and Logan took notes, we will presume for purposes of this
appeal that they were both involved in or at least aware of
their destruction. The issue becomes material only when
discussing their prior training, a point at which both
appellants and the government seem content to rest on a
discussion of Moffit's experience in any event. See infra
note 7.
The district court exercised jurisdiction over this
case pursuant to 18 U.S.C. § 3231, and we do so pursuant to 28
U.S.C. § 1291. To the extent appellants contend that the
government's actions violated the rule set forth in Brady v.
Maryland, 373 U.S. 83 (1963), we review the district court's
legal conclusions de novo and its factual findings for clear
error. United States v. Thornton, 1 F.3d 149, 158 (3d Cir.
1993); United States v. Hill, 976 F.2d 132, 134 (3d Cir. 1992).
We review the district court's denial of the appellants' motion
based on a claim of Jencks error for abuse of discretion. Hill,
976 F.2d at 139.4
II.
Criminal pretrial discovery is, of course, vastly
different from discovery in civil cases. In contrast to the
wide-ranging discovery permitted in civil cases, Rule 16 of the
Federal Rules of Criminal Procedure delineates the categories of
information to which defendants are entitled in pretrial
discovery in criminal cases, with some additional material being
4
In addition to the destruction of notes issue, appellants
contend that their trial was marred by impermissible
vouching because the government (1) referred to the
truthfulness provisions of the cooperating witnesses' plea
agreements, (2) elicited certain testimony from Moffit about
accomplices who had not testified and referred to those
persons in its closing argument, and (3) referred to non-
testifying family members in its closing argument. The
Ramoses also argue that in describing the plea agreements
during its charge to the jury, the trial court improperly
instructed that "it is up to the government to decide
whether the defendant has cooperated and provided truthful
information," thus buttressing the government's effort to
bolster those witnesses' credibility. We find no merit to
these contentions.
discoverable in accordance with statutory pronouncements and the
due process clause of the Constitution. The Jencks Act requires
that after each government witness has testified on direct
examination, the government must produce to the defense "any
statement" made by the witness which relates to his or her
testimony. In Brady, the Supreme Court held that due process
required that the government produce all "exculpatory" evidence,
which includes both "[m]aterials . . . that go to the heart of
the defendant's guilt or innocence and materials that might
affect the jury's judgment of the credibility of a crucial
prosecution witness." United States v. Hill, 976 F.2d 132,
134-35 (3d Cir. 1992). See Giglio v. United States, 405 U.S.
150, 154 (1972); United States v. Perdomo, 929 F.2d 967, 970 (3d
Cir. 1991) (citing Moore v. Illinois, 408 U.S. 786 (1972) ("[a]
valid Brady complaint contains three elements: (1) the
prosecution must suppress or withhold evidence, (2) which is
favorable, and (3) material to the defense")). See generally
United States v. Starusko, 729 F.2d 256, 260 (3d Cir. 1984).
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 were Jencks Act material their destruction was
harmless. Ammar, 714 F.2d at 259-60. We see no reason not to
undertake a similar analysis in this case; the mere fact that
Vella and Ammar each established rules for the government to
follow does not suggest that we intended the automatic
suppression of evidence when those rules are violated.
Our decision is informed by Arizona v. Youngblood, 488
U.S. 51 (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. 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. See also
California v. Trombetta, 467 U.S. 479 (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." 18 U.S.C.
§ 3500(b). Leaving aside "statements" which are transcriptions
or recordings of grand jury testimony, a "statement" within the
meaning of the Jencks Act is:
(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
5
In one respect, the issue we address here is both simple and
benign, for, as we discuss below, there is neither a
reasonable possibility of the destroyed notes having
contained Jencks Act or Brady material nor a scintilla of
evidence tending to show that the destruction occurred in
bad faith.
contemporaneously with making of such oral
statement.
18 U.S.C. § 3500(e).
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 writings which they signed or otherwise adopted or
approved.6 United States v. Gross, 961 F.2d 1097, 1104-05 (3d
Cir. 1992); United States v. Starusko, 729 F.2d 256, 263 (3d Cir.
1984); cf. Palermo v. United States, 360 U.S. 343, 350 (1959) (it
would be "grossly unfair" to permit defendants to attempt to
impeach witnesses with statements "which could not fairly be said
to be the witness' [sic] own rather than the product of the
investigator's selections, interpretations and interpolations").
See United States v. Foley, 871 F.2d 235, 238-39 (1st Cir. 1989);
United States v. Ricks, 817 F.2d 692, 698 (11th Cir. 1987). Nor
are they "statements" of Moffit or Logan, for they are by no
means "substantially verbatim" recitals of anything Moffit or
Logan said. Further, unlike the DEA-6s themselves, they do not
constitute writings which the officers later adopted in any way.
See United States v. Griffin, 659 F.2d 932, 937-38 (9th Cir.
6
See app. at 392-93, 570, 803, 1048-49, 1069, 1081, 1083,
1491, 1530-31, 1633 (testimony of Moffit and various
witnesses testifying pursuant to plea agreements). We may
rely on such secondary evidence in determining whether
missing or destroyed notes contained Jencks Act material.
See United States v. Cole, 634 F.2d 866, 869 (5th Cir. 1981)
(per curiam).
1981). Accordingly, we conclude that the destroyed notes did not
constitute Jencks Act material.
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 it difficult (if not
impossible) to decide whether the defendant seeking production
had other opportunities to make the same arguments he or she
could have made with the notes.
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 was not
told to preserve the notes he used in compiling the DEA-6s. Id.
at 1280-83, 1285. Moffit testified that he believed he was
following office procedure because he saw others destroying
notes. Id. at 1283.
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
7
The initial Ramos indictment was the first federal indictment
Moffit had assisted in procuring. App. at 1064. As noted
previously, both appellants and the government have
generally relied on Moffit's testimony regarding the
training he received as representing the training both
officers received. See supra note 3.
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.