United States v. Martin Jonassen , 759 F.3d 653 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1410
UNITED STATES OF AMERICA ,
Plaintiff-Appellee,
v.
MARTIN J. JONASSEN ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:11cr163-001 — James T. M oody, Judge.
ARGUED FEBRUARY 20, 2014 — DECIDED JULY 16, 2014
Before EASTERBROOK , MANION , and SYKES, Circuit Judges.
SYKES, Circuit Judge. Martin Jonassen kidnapped his
21-year-old daughter E.J.1 from her home in Missouri and took
her to a motel in Indiana, where he held her against her will
1
A pseudonym.
2 No. 13-1410
and sexually assaulted her. On the third day of her captivity,
E.J. managed to escape and was seen fleeing naked from the
motel, rope still tied around her leg, desperately screaming for
help. Jonassen chased her through the street and into a nearby
liquor store, and after a violent struggle, recaptured her. Police
responding to the scene arrested him in the liquor store
parking lot. E.J. described the ordeal to police, and Jonassen
faced serious federal felony charges.
Almost immediately after he was arrested, Jonassen began
a concerted effort to get E.J. to recant. She did not do so, but
the intimidation was successful in the sense that it made her
unavailable as a witness. Although she had cooperated with
the government when Jonassen was indicted and throughout
the pretrial period, she suddenly clammed up when called to
testify at trial, saying “I don’t remember” (or something
equivalent) in response to all of the prosecutor’s questions. The
government moved to admit her statements to police under
Rule 804(b)(6) of the Federal Rules of Evidence, which allows
admission of hearsay against a party who wrongfully procures
a witness’s unavailability. The district court granted the
motion. The jury convicted Jonassen of kidnapping, see
18 U.S.C. § 1201(a)(1), and obstruction of justice, see id.§ 1512(b)(1), and the court imposed a lengthy prison sentence.
Jonassen raises three issues on appeal. First, he argues that
the district court should have conducted a competency hearing
under 18 U.S.C. § 4241. Second, he challenges the court’s
decision to admit E.J.’s prior statements under Rule 804(b)(6).
Finally, he argues that the court erred in denying his posttrial
motion regarding Jencks Act material. See 18 U.S.C. § 3500.
No. 13-1410 3
We reject these arguments and affirm. The district court
properly declined to conduct a competency hearing. Although
Jonassen asserted bizarre legal theories based on his claim of
“sovereign citizenship,” that alone does not provide a reason
to doubt his competence to stand trial, and the record does not
otherwise suggest that he lacked the ability to understand the
proceedings. The court’s evidentiary ruling also was sound.
The government laid an ample foundation for admission of the
hearsay statements under Rule 804(b)(6); the evidence estab-
lished that Jonassen used bribery, guilt, and various forms of
psychological intimidation to procure E.J.’s unavailability.
Finally, because Jonassen did not request Jencks Act material
before the close of trial, his claim for relief under the Act
necessarily fails.
I. Background
E.J. was born in November 1989 to Martin and Alice
Jonassen in the back of their family van. She led what appears
to have been an isolated life; she was homeschooled and had
only once seen a doctor before her kidnapping. The record
suggests that Martin subjected the family to harsh discipline
and physical, emotional, and sexual abuse. Her parents
separated when E.J. was young, and she thereafter lived with
her mother and three of her brothers on a farm near Jameson,
Missouri. Martin Jonassen also lived in the area.
On Saturday, September 10, 2011, Jonassen picked up E.J.
from the farm ostensibly to take her shopping. When E.J. did
not return as planned for her brother’s birthday celebration,
her mother began to worry and tried unsuccessfully to contact
4 No. 13-1410
her. Jonassen had driven her to Portage, Indiana, where he
checked into a motel on Sunday evening. At around ten-thirty
on Monday morning, two motel employees saw E.J. running
naked down the motel service road with a rope tied to her leg.
Jonassen emerged from the motel room and chased her on foot,
pulling up his pants as he ran (he was wearing nothing else)
before getting into his car to follow her. A witness would later
testify that E.J. looked like she was “running for her life,”
frantically darting through traffic on a very busy road.
E.J. ran into a nearby liquor store screaming “help me, help
me, please help me” to the store clerk. Jonassen followed her
into the store and told the clerk that his daughter was on
drugs. He struggled violently to recapture her, and they fell to
the ground, knocking over merchandise in the process.
Jonassen succeeded in overpowering his daughter, and he
dragged her back to his car.
Portage police officers responding to a 911 call about the
incident arrived at the scene and arrested Jonassen in the liquor
store parking lot before he was able to leave with E.J. He told
police that he was taking his daughter to Michigan to prevent
her from dating a 60-year-old man, whom he later referred to
as “some Hugh Hefner.” After securing Jonassen, officers then
sought to assist E.J., who was huddled in the back of the car
crying. E.J. told Officer Flora Ryan that Jonassen had taken her
to Indiana against her will because he thought she was going
to have sex with an older man. When asked if she was raped,
she first shook her head no. But she told the officer that she
had been tied up in the motel room and nodded when asked
if her father had sex with her, and the officer observed the rope
No. 13-1410 5
still around her ankle. After the on-scene interview with the
police, E.J. was taken to the hospital where she was examined
by nurse Janice Ault, who observed abrasions, cuts, a rash, and
bruises all over her body. E.J. also told Ault that Jonassen had
taken her from her home in Missouri against her will.
The police searched the motel room, which was in total
disarray. There was rope around a chair, and more rope was
found in Jonassen’s car. A table had been moved to a location
consistent with it being used to block the door. Near the table
was a toilet-tank cover, also apparently used as a door block.
The bedding was submitted to the Indiana State Crime Lab for
testing. Jonassen’s semen was found on the sheets, and one
stain contained both Jonassen’s and E.J.’s DNA.
The day after his arrest, Jonassen began what would be an
extended campaign to get E.J. to retract her statements to the
police. Ignoring a no-contact order prohibiting any communi-
cation with E.J.—including by letter, phone, or intermediary—
Jonassen contacted her both directly and through several
family members. Over a seven-month period, Jonassen made
more than 75 calls and sent 20 letters attempting to dissuade
E.J. from testifying. As the district judge characterized the calls
and letters, Jonassen variously used guilt, bribery, veiled
threats, and other forms of psychological intimidation in a
persistent effort to get E.J. to recant. For example, when
speaking directly with E.J. on the phone, Jonassen told her that
he loved her and did not want to spend years in prison.
Through multiple channels he offered her money (up to
$14,000), a moped, and part of his property in Michigan. His
letters reiterated these offers, promised to stay out of her life,
6 No. 13-1410
and claimed he was being mistreated in jail. He characterized
the whole episode as nothing more than a family spat and
suggested that she would be blessed for lying to the police like
the Jewish midwives who lied to Pharaoh to save newborn
children and Rahab who lied to soldiers in Jericho to protect
Jewish spies. He also offered to pay his sons Michael and Elijah
if they could persuade E.J. to sign a statement—dictated word
for word by Jonassen—indicating that she freely accompanied
him to Indiana.
The United States Attorney in Northern Indiana indicted
Jonassen on one count of kidnapping, see 18 U.S.C. § 1201(a)(1),
and one count of obstruction of justice, see id. § 1512(b)(1).
Jonassen waived his right to counsel and represented himself,
although the court appointed attorney John Martin to serve as
standby counsel. Jonassen attempted to mount a “sovereign
citizen” defense, filing many motions asserting variations on
this frivolous legal theory.2 Attorney Martin moved for a
competency hearing, advising the court that “[a]lthough
[Jonassen] at times appears to have rational thoughts concern-
ing this matter, more often than not his thoughts are irrational
and his thought process appears to be scrambled.” Martin also
stated that Jonassen “continues to advance irrelevant and
inconsequential theories of defense instead of understanding
2
Defendants claiming to be “sovereign citizens” assert that the federal
government is illegitimate and insist that they are not subject to its
jurisdiction. The defense has “no conceivable validity in American law.”
United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990).
No. 13-1410 7
and comprehending the true nature of the allegations and
appears to lack interest in rational defenses.”
A magistrate judge held a hearing on the motion and
questioned Jonassen about his understanding of the proceed-
ings. Jonassen indicated that he understood the charges against
him and acknowledged that he was facing “quite a number of
years” in prison. He explained that he was refusing the
assistance of counsel to avoid losing the ability to assert that he
was “a natural person, common law citizen” over whom the
court lacked jurisdiction. He also told the judge that he had
never been treated for any mental-health issues. The magistrate
judge found no basis for a competency hearing and denied the
motion. Martin filed an objection with the district court.
The district court addressed the attorney’s concerns about
Jonassen’s competence during a pretrial conference. After
conducting an extended colloquy with Jonassen and question-
ing Martin about his concerns, the court concluded that there
was no reasonable cause to believe that Jonassen was suffering
from a mental illness that would prevent him from under-
standing the proceedings. The court rejected the request for a
competency hearing, and the case moved forward to trial.
Up to this point in the proceedings, E.J. had been cooperat-
ing with the government and had talked to investigators and
prosecutors on several occasions. On the evening before trial,
E.J. met with Portage Police Detective Janis Regnier, FBI Agent
Matthew Chicantek, and two Assistant United States Attor-
neys. They went over her story in detail in preparation for her
testimony. E.J. confirmed that Jonassen had tied her up and
taken her from Missouri against her will. She also described for
8 No. 13-1410
the first time the events of a multiweek trip she had taken with
Jonassen to Michigan the summer before the kidnapping.
During that trip, Jonassen made sexual advances toward her
that included lying on top of her and masturbating in front of
her.
When trial began the next day, however, E.J. refused to
answer any questions put to her by the prosecutor. Instead, she
answered every question with “I don’t remember” or “not that
I know of” or “I don’t know what you are talking about” or a
similar phrase. She responded in this way even when asked
simple questions about her age, her date of birth, her nick-
name, and her parents’ names. When the prosecutor asked if
she was refusing to answer because she feared her father, she
answered, “I’m not afraid of anything or anybody.”
In light of this unusual development, at the end of the first
day of trial the judge excused the jury and heard the govern-
ment’s motion to admit E.J.’s statements to police under
Rule 804(b)(6) of the Federal Rules of Evidence, which permits
the admission of hearsay against a party who wrongfully
procures the unavailability of the declarant as a witness. The
hearing extended into the evening and continued the next
morning. The government presented evidence of Jonassen’s
elaborate effort to get E.J. to recant, including the phone calls
and letters playing on her emotions with guilt, bribery, and
various forms of intimidation. Alice Jonassen testified about
why E.J. would have reason to fear her father. Special Agent
Eric Field testified that E.J. told him that she thought her father
was facing too much time in prison and that his time served in
No. 13-1410 9
pretrial detention plus a term of probation should be sufficient
punishment.
Ruling on the government’s motion, the judge noted that
E.J.’s testimony was unlike anything he had seen in over
40 years on the bench. He concluded that E.J.’s performance on
the witness stand—professing a “total lack of recall of
anything”—made her unavailable as a witness within the
meaning of Rule 804(a). See FED . R. EVID . 804(a)(3) (stating that
a declarant is considered unavailable if she “testifies to not
remembering the subject matter”). He further concluded that
Jonassen had procured E.J.’s unavailability through wrongful
acts and with specific intent to achieve that result, satisfying
the criteria for admission of her hearsay statements under
Rule 804(b)(6).
When the jury returned to the courtroom, the government
introduced E.J.’s prior statements through Agent Chicantek
and Detective Regnier, and also introduced a signed, handwrit-
ten statement from E.J. describing her abduction. The rest of
the government’s case consisted of testimony from eyewit-
nesses, investigators, Alice Jonassen, and Janice Ault, along
with recordings of Jonassen’s phone calls from jail, surveillance
video from the liquor store, and physical evidence from the
motel.
The jury convicted Jonassen on both counts and also found
by special verdict that Jonassen’s obstructive conduct was
“intended to influence, delay, or prevent” E.J.’s testimony.
Following trial, the probation office submitted a presen-
tence report to the court. The report referred to E.J.’s meeting
with prosecutors on the night before trial. More specifically,
10 No. 13-1410
the probation office reported that E.J. “met with law enforce-
ment and government counsel the night before she was
scheduled to testify” and “gave her most detailed summary to
date” of the kidnapping. The report went on to summarize the
information she provided during that interview.
After reviewing the presentence report, Jonassen filed a
“motion” objecting that he had not received any report or
notes about this meeting. The motion is captioned “Gov.
Admits To Withholding Evidence” and is vague about the
grounds for relief, but it does clearly request a new trial or
judgment of acquittal. The court ordered a response from the
government.
The government interpreted the “motion” as a Jencks Act
request for a copy of any written statement provided or
adopted by E.J. during the meeting. See 18 U.S.C. § 3500. The
government advised the court that E.J. “did not provide, and
no one else created, a written document constituting a state-
ment by her.” The government also noted that the Assistant
United States Attorney in charge of the case was “the only
person present who took notes during the meeting,” and her
notes were recorded on a “draft direct examination outline”
prepared for use at trial. These notes, the government ex-
plained, were “privileged attorney work product rather than
a discoverable witness statement.” Finally, the government
explained that the information E.J. provided during the
meeting was neither exculpatory nor inconsistent with her
prior statements and thus was not subject to disclosure under
Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States,
405 U.S. 150 (1972).
No. 13-1410 11
After receiving the government’s response, the judge
concluded that the notes were not subject to disclosure and
denied Jonassen’s motion for a new trial or judgment of
acquittal. Sentencing proceeded, and the judge imposed a
sentence of 480 months on the kidnapping conviction and a
concurrent term of 240 months on the conviction for obstruc-
tion of justice. This appeal followed.3
II. Discussion
A. Competency Hearing
When presented with a motion requesting a competency
hearing, a district court
shall grant the motion … if there is reasonable
cause to believe that the defendant may pres-
ently be suffering from a mental disease or defect
rendering him mentally incompetent to the
extent that he is unable to understand the nature
and consequences of the proceedings against him
or to assist properly in his defense.
18 U.S.C. § 4241(a); see also United States v. Woodard, 744 F.3d
488, 493 (7th Cir. 2014) (“A district court is not required to
order an examination or a competency hearing unless there is
a bona fide doubt that arises as to a defendant’s competency
before trial.”).
3
Jonassen accepted the assistance of counsel on appeal. Thomas L. Shriner,
M ichael A. Bowen, and Kate E. Gehl, of Foley & Lardner LLP, accepted the
appointment. They have ably discharged their duties.
12 No. 13-1410
The district judge denied Attorney Martin’s motion for a
competency hearing and did not order one sua sponte at any
point in the proceedings. Jonassen argues that the district
court’s treatment of Jonassen’s competency was both procedur-
ally and substantively flawed. Because the district court is in
the best position to assess the mental status of a defendant, we
review for abuse of discretion. United States v. Alden, 527 F.3d
653, 659 (7th Cir. 2008).
Jonassen’s procedural argument is that Martin’s motion for
a competency hearing was denied without sufficient findings
stated on the record. We disagree. Although the magistrate
judge’s ruling was cursory, the district judge adequately
explained his conclusion that a competency hearing was not
necessary. After a colloquy with Jonassen, the judge turned to
Martin, Jonassen’s standby counsel, and questioned him about
the basis for the motion and Jonassen’s relevant personal
history. During this discussion, it became clear that Jonassen
had no known history of mental illness, and Martin was
primarily concerned about Jonassen’s insistence on pursuing
idiosyncratic and frivolous legal theories. The judge remarked
that Jonassen’s behavior did not suggest that he was suffering
from a mental-health problem that would require a full
competency evaluation; instead, his conduct was more likely
rooted in obstructionism. Although the judge did not make
formal “findings” as such, he referred back to the colloquy
with Jonassen and the exploration of standby counsel’s
concerns, and stated that the facts did not show that Jonassen
was incapable of understanding the proceedings against him.
A more formal ruling may have been preferable, but the
judge’s ruling is not procedurally insufficient.
No. 13-1410 13
On the merits the district court did not abuse its discretion
in declining to order a competency hearing. Appellate counsel
argues that Martin’s observations, Jonassen’s actions at trial,
and the district judge’s own statements during trial created
reasonable cause to believe Jonassen was incompetent to stand
trial, necessitating a hearing. This argument, like Martin’s
argument below, relies heavily on Jonassen’s persistent
assertion of a sovereign-citizen defense. But we have held that
adherence to bizarre legal theories, whether they are “sincerely
held” or “advanced only to annoy the other side,” does not
“imply mental instability or concrete intellect … so deficient
that trial is impossible.” United States v. James, 328 F.3d 953, 955
(7th Cir. 2003); see also Alden, 527 F.3d at 659–60 (holding that
the defendant’s “obsession with irrelevant issues and his
paranoia and distrust of the criminal justice system” did not
require a district court to sua sponte order a competency
hearing). Criminal defendants often insist on asserting defenses
with little basis in the law, particularly where, as here, there is
substantial evidence of their guilt.
And standby counsel’s assertions turned out to be much
more equivocal than they originally seemed. For example,
Martin acknowledged when questioned by the judge that
Jonassen’s behavior could show “that he is just being obstruc-
tionist to some degree and that he is just intentionally not
directly answering questions and refusing to cooperate … . I
think it’s … possible that he completely understands every-
thing and his actions are simply to be obstructionist and
therefore he does understand.”
14 No. 13-1410
As for Jonassen’s performance at trial, it’s true that he often
struggled to effectively question witnesses and parts of his
closing argument were stricken. But these problems often arise
when someone without legal training represents himself; the
rules of evidence and criminal procedure are not always
straightforward. See Gideon v. Wainwright, 372 U.S. 335, 344–45
(1963). Considered as a whole, and in light of his pro se status,
Jonassen’s conduct at trial demonstrates that he grasped the
key elements of the charges against him. For example, he
frequently asked witnesses whether they had seen his daughter
cross state lines, a necessary element of the kidnapping charge.
See 18 U.S.C. § 1201(a)(1). He also lodged relevant objections to
hearsay and testimony implicating marital privilege. More-
over, his intense effort before trial to get E.J. to sign a statement
saying that she had willingly accompanied him to Indiana
demonstrates that he understood the central elements of the
kidnapping charge.
Finally, appellate counsel points to two statements by the
trial judge as evidence suggesting the need for a competency
hearing. First, after Jonassen made a flippant remark, the judge
chastised him by saying, “I still don’t know that you know
how serious this case is.” Considered against the backdrop of
Jonassen’s other obstructionist behavior, this statement is more
likely the product of the judge’s frustration that Jonassen was
choosing not to take the proceedings seriously, and not evi-
dence that Jonassen lacked the mental capacity to understand
them. Second, the judge suggested mid-trial that Jonassen
could benefit from letting Martin step in to conduct the
defense: “You sure you don’t want [standby counsel] to take
over for you? He’s competent. He’s skilled. He knows what
No. 13-1410 15
he’s doing. You have none of those attributes.” This statement
shows only that the judge thought Jonassen would benefit
from the help of trained counsel—an unremarkable proposi-
tion—and not that he thought Jonassen was incapable of
understanding the proceedings.
These snippets from the record do not establish that the
judge abused his discretion in declining to conduct a compe-
tency hearing. Jonassen had no history of mental illness, and
substantial evidence supports the judge’s conclusion that he
was competent to stand trial. As Jonassen explicitly told the
court: “I’m well aware of the charges and the nature of the
charges and the consequences.” The record does not establish
reasonable cause to believe that Jonassen was suffering from a
mental disease or defect that rendered him incompetent to
stand trial.4
4
Jonassen’s opening brief obliquely suggests that even if Jonassen was
competent to stand trial, he was not competent to represent himself at trial
according to Indiana v. Edwards, 554 U.S. 164 (2008). Jonassen’s reply brief
does not return to this subject, and Jonassen’s counsel retreated from the
point at oral argument, acknowledging that Edwards does not require a judge
to override a defendant’s decision to represent himself once the defendant
is found competent to stand trial under the Dusky standard. See Dusky v.
United States, 362 U.S. 402 (1960). Rather, the case allows the judge “to insist
upon representation by counsel for those competent enough to stand trial
under Dusky but who still suffer from severe mental illness to the point
where they are not competent to conduct trial proceedings by themselves.”
Edwards, 554 U.S. at 178; see United States v. Berry, 565 F.3d 385, 391 (7th Cir.
2009) (“The Constitution may have allowed the trial judge to block [the
defendant’s] request to go it alone, but it certainly didn’t require it.”);
United States v. Bernard, 708 F.3d 583, 590 (4th Cir. 2013), cert. denied,
(continued...)
16 No. 13-1410
B. Admission of Hearsay Under Rule 804(b)(6)
Rule 804(b)(6) permits the admission of a hearsay statement
when it is “offered against a party that wrongfully caused …
the declarant’s unavailability as a witness, and did so intending
that result.” FED . R. EVID . 804(b)(6). E.J. was unavailable within
the meaning of the rule because she “testifie[d] to not remem-
bering the subject matter.” FED . R. EVID . 804(a)(3). To admit a
hearsay statement under Rule 804(b)(6), the government must
demonstrate: “(1) that the defendant engaged or acquiesced in
wrongdoing, (2) that the wrongdoing was intended to procure
the declarant’s unavailability, and (3) that the wrongdoing did
procure the unavailability.” United States v. Scott, 284 F.3d 758,
762 (7th Cir. 2002). Jonassen challenges the district court’s
conclusion that his wrongdoing procured E.J.’s unavailability.
We review for clear error. Id.And we find no error. The record easily supports the
court’s conclusion that Jonassen successfully procured E.J.’s
unavailability by incessant pretrial manipulation. As we have
recounted, Jonassen worked tirelessly for seven months to
persuade E.J. to recant. His tactics ranged from pleas for
sympathy to bribes. He bombarded E.J. with phone calls,
4
(...continued)
134 S. Ct. 617 (2013) (“Edwards itself reaffirmed that a court may constitu-
tionally permit a defendant to represent himself so long as he is competent
to stand trial. … At bottom, Edwards does not stand for the proposition that
a state must deny the right of self-representation to a defendant of
questionable mental competence or that district courts must conduct an
additional ‘Edwards’ inquiry into the competency of every defendant who
requests to proceed pro se.”).
No. 13-1410 17
letters, and messages delivered through several family
members. All this effort was in clear violation of a court order
and directed at a young woman who was susceptible to his
manipulation: According to Alice Jonassen’s testimony at the
hearing, E.J. had long been subjected to abuse by her father.
The evidence overwhelmingly supports the judge’s conclusion.
Jonassen argues that the evidence is circumstantial and thus
inadequate to support the district court’s conclusion. True, E.J.
did not testify that her father’s actions led to her feigned
memory loss, and when asked whether she feared her father,
she responded that she did not fear anyone or anything. This
response does not undermine the judge’s ruling. The eviden-
tiary foundation for admitting hearsay under Rule 804(b)(6)
will almost always be circumstantial, and it would be odd to
expect the witness herself to corroborate it:
It seems almost certain that, in a case involving
coercion or threats, a witness who refuses to
testify at trial will not testify to the actions pro-
curing his or her unavailability. It would not
serve the goal of Rule 804(b)(6) to hold that
circumstantial evidence cannot support a finding
of coercion.
Scott, 284 F.3d at 764.
Moreover, fear was not the only tactic Jonassen used—he
also played on E.J.’s sense of guilt. He complained in graphic
detail about being sexually assaulted and malnourished in jail.
And E.J.’s statement to Agent Field that she thought her father
had spent enough time behind bars suggests that tactic was
successful. There was more than enough evidence to support
18 No. 13-1410
the judge’s conclusion that Jonassen wrongfully procured E.J.’s
unavailability.
C. Jencks Material
The Jencks Act requires, on the defendant’s motion, that
any statements of a government witness be produced after that
witness testifies on direct examination. 18 U.S.C. § 3500(b).
Jonassen asserts that he may have been denied access to
materials he was entitled to under the Act.
Before sentencing, Jonassen received a draft copy of his
presentence report, which referred to notes taken by one of the
prosecutors during the interview with E.J. the night before
trial. Jonassen filed a cryptic motion claiming that he was
denied access to the notes and should be granted a new trial,
mistrial, acquittal, dismissal, or “dissolution of this matter.”
The government responded that the notes were attorney work
product and did not constitute a statement of any witness as
defined by the Jencks Act, and were in no way exculpatory
within the meaning of Brady and Giglio. The government
offered to produce the notes for in camera inspection. The
district court declined the offer and denied Jonassen’s motion.
Jonassen’s argument on appeal doesn’t get out of the gate.
It’s true that a presumption arises in favor of an in camera
inspection if the defendant makes “a reasonable argument that
if the document says what he believes it says, based on the
testimony of the witness on direct examination, then it can
possibly be used to impeach that witness.” United States v.
Allen, 798 F.2d 985, 994–95 (7th Cir. 1986). But a request for
No. 13-1410 19
Jencks Act material must be made before or during trial; the
Act provides no posttrial procedure or remedy.5 In other
words, the Jencks Act does not place an independent obligation
on the government to disclose witness statements. See 18 U.S.C.
§ 3500(b) (The court shall produce witness statements “on
motion of the defendant.”). A defendant must make a timely
request to trigger an in camera inspection and, if warranted,
production of the documents. See United States v. Fragoso,
978 F.2d 896, 899 (5th Cir. 1992) (“If the defense makes a timely
request and there is some indication in the record that the
materials meet the Jencks Act’s definition of a statement, the
district court has a duty to inspect the documents in camera.”).
A request made after the jury has rendered its verdict is not
timely. See United States v. Clay, 495 F.2d 700, 709–10 (7th Cir.
1974); United States v. Petito, 671 F.2d 68, 73–74 (2d Cir. 1982).
Absent a preexisting agreement with the government concern-
ing disclosure of witness statements, see, e.g., United States v.
5
Jonassen’s appellate counsel stated at oral argument that it is “possible”
Jonassen made a broad request for Jencks material during trial. Counsel was
referring to one of 40 arguments lodged by Jonassen in an oral motion for
judgment of acquittal made at the close of the government’s case:
Per … Federal Rule of Criminal Procedure 3500(a)[,] no
statement or report made by prospective witnesses shall be
the subject of subpoena or discovery or inspection until
said witness has testified on direct examinations[] — that’s
a direct quote to all my stolen papers yesterday that we
played with for three hours.
Jonassen does (inaccurately) cite to the Jencks Act and recite some of its
text. However, he is clearly referring to papers of his own that he wanted
back, not to statements by any particular government witness.
20 No. 13-1410
McKenzie, 768 F.2d 602, 609 (5th Cir. 1985), a Jencks motion
must be made after the relevant witness testifies on direct
examination and at a minimum before the close of evidence, see
United States v. Knapp, 25 F.3d 451, 461 (7th Cir. 1994); United
States v. Carter, 613 F.2d 256, 261 (10th Cir. 1979) (holding that
defendant failed to make a timely assertion of his rights under
the Jencks Act when he requested the materials before trial,
which was too early, and again after trial, which was too late,
but not during trial after the relevant witness testified).
The Jencks Act provides for disclosure of witness state-
ments that can be used to cross-examine government witnesses
at trial. There can be no error in refusing to order their produc-
tion, much less refusing to inspect them in camera, when the
initial request is made after trial has concluded. See Clay,
495 F.2d at 709–10 (“Because the defendants could only
properly use [an alleged Jencks] statement to impeach the
testimony of [the witness] during cross-examination, the
motion for production made at the conclusion of the trial was
not timely. Therefore, we find no error in the court’s denial of
the motion.”). Nor does the Jencks Act provide a remedy of a
new trial on an untimely motion. In short, Jonassen missed his
chance to request Jencks statements by failing to do so during
trial, and the district court did not err in refusing to grant his
untimely motion.
Even if the notes qualified as Jencks Act material and had
been requested in a timely fashion, failure to disclose them at
the conclusion of E.J.’s direct examination cannot have been
prejudicial. Jonassen has not explained how he could possibly
have used any statement of hers to his advantage. It is
No. 13-1410 21
uncontested that E.J.’s story the night before trial was entirely
inculpatory and consistent with her prior statements. The
amnesiac nature of E.J.’s testimony made impeachment by
Jonassen counterproductive. Simply put, E.J.’s effective refusal
to testify was the best outcome Jonassen could have hoped for.
In sum, to raise the presumption in favor of an in camera
inspection, Jonassen had to make both a timely request for
Jencks Act material and a reasonable argument that if the notes
said what he believed they said, they could possibly have been
used to impeach E.J.’s testimony. He did neither.
AFFIRMED .