United States v. Jarrie , 1978 CMA LEXIS 10934 ( 1978 )

Opinion of the Court

FLETCHER, Chief Judge:

Contrary to his pleas, the appellant was found guilty,¹ at a special court-martial, of selling methamphetamine, in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. The jury sentenced him to be reduced to the grade of Airman Basic and to be discharged from the service with a bad-conduct discharge. The sentence as adjudged was approved by the appropriate reviewing authorities and affirmed in a brief opinion by the United States Air Force Court of Military Review.

We granted review to consider the propriety of the military judge’s action at trial in denying a defense motion to strike the critical testimony of a government informant, Sergeant Rabe. The asserted ground for the motion was the failure of the Government to comply with the Jencks Act, 18 U.S.C. § 3500(c). In particular, after the testimony of Sergeant Rabe, the defense requested, but was not provided, certain written notes made by a government investigator. These notes had been verified by this informant as a correct account of his original oral statement on the incident.

It is uncontroverted that, after completing a purported drug transaction with the appellant, the government informant, Sergeant Rabe, reported this information to a military investigator, Agent MacGregor, who took notes on the oral statement made by the informant. Subsequently, apparently by telephone two weeks later, he verified the authenticity and correctness of these notes with the informant. More than nine months later, the agent prepared a formal statement on this incident which was signed by Sergeant Rabe. When he constructed the final statement, the government agent deleted from the original notes matters which he considered extraneous, including the names of two eyewitnesses to the purported transaction. The notes were then destroyed by the agent in accordance with the discretion provided to him by an asserted practice of his investigative organization. One witness was called by the defense on its own accord and flatly contradicted the testimony of the informant. Neither the agent nor the informant could recall the second witness’ identity. The Court of Military Review found that destruction of the notes by the government agent was in good faith and not designed to deprive the defense of anything of value related to the case. Moreover, it found not only that all the information in the notes was provided to the appellant but also that, beyond reasonable doubt, he was not prejudiced by the destruction of the notes.

It should be noted at the outset that although there is no way to determine whether the testimony of the unavailable eyewitness would be favorable to the appellant, it would without doubt appear to be substantially material. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). However, it is unnecessary to decide this case on the principles embraced in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,10 L.Ed.2d 215 (1963), and its progeny,² since this case is squarely within the scope of the Jencks Act, supra, and our treatment of similar difficulties with proof of prejudice in United States v. Albo, 22 U.S.C.M.A. 30, 46 C.M.R. 30 (1972).

The initial question for our consideration is whether the written notes of the government agent are producible “statements” after the testimony of the government' informant, Sergeant Rabe. See Jencks Act, 18 U.S.C. § 3500(e)(1). ■ It is clear that such notes would have to be produced after the agent’s testimony. United States v. Albo, supra; see also Needelman v. United States, 261 F.2d 802 (5th Cir. 1958), cert. dismissed 362 U.S. 600, 80 S.Ct. 960, 4 L.Ed.2d 980 (1960). However, where the notes are requested after the testimony of a person who did not take them, the test is whether the notes are “statements which could properly be called the witness’ own words.” Palermo v. United States, 360 U.S. 343, 352, 79 S.Ct. 1217, 1224, 3 L.Ed.2d 1287 (1959). The Supreme Court has determined that the Jencks Act would require the production of statements which could fairly be deemed to reflect fully and without distortion what had been said to the government agent and not the agent’s “selections, interpretations and interpolations” of the original communication. Id. at 350, 79 S.Ct. 1217. In the case at bar, the agent and the informant both admitted that the informant had verified the written notes as a correct and authentic account of his original statement. This was approval or adoption within the meaning of the statute. See Rosenberg v. United States, 360 U.S. 367, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959). We believe this act of verification by the informant transformed the agent’s written notes into the informant’s own statement for purposes of the Jencks Act. See United States v. Carrasco, 537 F.2d 372, 375-77 (9th Cir. 1976).

Nevertheless, the Court of Military Review concluded that the production of these written notes in accordance with the Jencks Act could be excused on the basis of its so-called “good faith” exception. Citing Killian v. United States, 368 U.S. 231, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961), they found no error by the military judge, since the written notes were destroyed in accordance with routine administrative practice and not as a result of a deliberate effort on the part of the Government to hinder the defense. We believe the facts in Killian to be so inapposite as to fail to provide adequate support for the legal conclusion reached by the Court of Military Review in the present case. Moreover, this judicial exception to the Jencks Act is generally limited in its application. United States v. Carrasco, supra. In the case at bar, there was no showing by the Government³ that these notes were destroyed prior to the contemplation of the prosecution of the appellant. In addition, omission of the names of two eyewitnesses to the transaction constituted a substantial deviation between the written notes and the formal statement signed by Sergeant Rabe. Id. at 376. Finally, it is most difficult for this Court, as a matter of law, to equate the optional practice of discretionary destruction of notes with those routine administrative procedures designated as being in “good faith” in the cases cited by the Court of Military Review. We find as a matter of law that this judicial doctrine of exception is inapplicable in the present case.

The Court of Military Review also reasoned in the alternative that the absence of prejudicial harm to the appellant as a result of the destruction of the notes precludes reversal of this conviction. It suffices to say that, in the present case, the requested materials were not preserved for the record as required by 18 U.S.C § 3500(c). This factor alone distinguishes it from those cases cited by the Court of Military Review as support for the application of the harmless error rule. Previously, we held in United States v. Albo, supra, that in this situation the “appropriate corrective action” is to reverse the decision of the Court of Military Review and set aside the findings of guilty and the sentence. We so order as to the contested offense.

The decision of the United States Air Force Court of Military Review is reversed as to specification 1 of the Charge. The finding of guilty regarding that specification is set aside. The finding of guilty of specification 2 to which the appellant pleaded guilty is affirmed. The sentence is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for resubmission to the Court of Military Review. That Court may either dismiss specification 1 and reassess the sentence, or order a rehearing on sentence only; or it may order a rehearing on specification 1 and the sentence.

Judge PERRY concurs.

1 . The appellant was also found guilty, pursuant to his pleas, of selling marijuana, in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892.

2 . In light of the contradictory testimony of the first witness named by Sergeant Rabe as having observed this drug transaction, a question exists whether the government had a duty under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to provide the defense with the name of the second witness. A problem arises in that there is no memory of the informant or agent as to the identity of this witness, nor any indication that the Government interviewed him and knew this testimony to be favorable to the accused. Cf. Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) with United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

3 . See Augenblick v. United States, 377 F.2d 586, 598-99, 180 Ct.Cl. 131 (1967), rev’d on other grounds, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969).