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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 21-CO-0636
CARLTON HENDERSON, III, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (2017-CF2-010911)
(Hon. Steven N. Berk, Trial Judge; Hon. Julie H. Becker, Remand Judge)
(Argued March 15, 2023 Decided October 12, 2023)
Lee R. Goebes, Public Defender Service, with whom Samia Fam and Mikel- Meredith Weidman, Public Defender Service, were on the briefs, for appellant.
Bryan H. Han, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney, and Chrisellen R. Kolb and John P. Mannarino, Assistant United States Attorneys, were on the brief, for appellee.
Before EASTERLY and SHANKER, Associate Judges, and FISHER, Senior Judge.
Opinion for the court by Associate Judge Easterly.
Dissenting Opinion by Senior Judge Fisher at page 30.
EASTERLY, Associate Judge: Carlton Henderson challenges the Superior
Court’s order, on remand from this court, denying his motion to strike the testimony 2
of the sole witness at his suppression hearing as a sanction for government
negligence under the Jencks Act and Super. Ct. Crim. R. 26.2. We hold that (1) the
remand court committed clear error in finding that the government’s actions did not
amount to gross negligence, and (2) in the absence of an argument from the
government to the contrary, striking the officer’s testimony was compelled by our
case law requiring such a sanction upon a finding of gross negligence. We thus
vacate Mr. Henderson’s convictions and again remand this case to the Superior
Court.
I. Facts and Procedural History
After an individual approached Officer Kirkland Thomas and told him that a
man nearby had a gun in his pants, the police stopped, searched, and arrested Mr.
Henderson on weapons charges in June 2017. 1 Both at his initial appearance and
after, Mr. Henderson requested that all police radio broadcasts (also known as “radio
runs”) be preserved and provided. Prior to trial, Mr. Henderson moved to suppress
the gun and ammunition the police found when they searched him, arguing that the
officers did not have reasonable, articulable suspicion under Terry v. Ohio, 392 U.S.
Mr. Henderson was charged with one count each of violating D.C. Code 1
§ 22-4503(a)(1) (unlawful possession of a firearm with a prior conviction), D.C. Code § 7-2502.01(a) (unlawful possession of an unregistered firearm), D.C. Code § 7-2506.01(3) (unlawful possession of ammunition), and D.C. Code § 7-2506.01(b) (possession of a large capacity ammunition feeding device). 3
1 (1968), to stop and search him for weapons. A suppression hearing was held before
the Honorable Steven Berk.
At the May 2018 suppression hearing, the government called Officer Thomas
as its only witness. The government elicited on direct examination the narrative of
when, where, and how Officer Thomas received a tip from a passerby and broadcast
the tip to other members of his team:
Q: Were you alone or were you with anybody else at that time [that you received the tip]? A: At that time, I was alone, because I was going to get my lunch. ... Q: And what did you do with the information that [the tipster] provided to you? A: I let my other teammates know on our radio channel. And at that time, I was going back to the station, because I was by myself, and I didn’t want to go in the area by myself.
* * *
Q: Now, after you received that information, you told us that you relayed it to your team? A: Yes. Q: And after doing that, what did you do? A: I went to the station to pick up the rest of my teammates, and I went down to the [store the tipster had mentioned].
Officer Thomas confirmed on cross-examination that he “broadcasted the lookout
over” his team’s channel “right away” after receiving the tip. 4
Defense counsel marked as Exhibit 1 a “clip from the radio run provided in
discovery” and played it for Officer Thomas. Counsel and Officer Thomas then had
an exchange in which Officer Thomas informed counsel that Exhibit 1 was the
recording of the voice of a different officer:
Q: Now, that’s your voice. Correct, Officer? A: No. Q: That was not your voice? A: No. Q: I’m going to play it again for you. Okay? A: Yes. (Whereupon, the tape was played.) Q: So it’s your testimony that that’s not your radio transmission with the lookout in this case? A: Correct. That’s Officer Williams repeating what I am saying.
The government did not address on redirect the fact that Exhibit 1 did not appear to
be the recording of Officer Thomas’s radio run.
After Officer Thomas finished testifying, defense counsel raised the issue of
Officer Thomas’s radio broadcast, arguing that the government had failed to provide
it to the defense as a Jencks statement. 2 Counsel explained that he had expected the
radio run provided by the government and played in court to be “Officer Thomas’[s]
broadcast of the lookout,” but “Officer Thomas testified it was actually Officer
2 Jencks Act, 18 U.S.C. § 3500; see also Super. Ct. Crim. R. 26.2(a) (requiring the government to produce upon request “any statement of the witness that is in their possession and that relates to . . . the witness’s testimony”). 5
Williams’[s].” Counsel also noted that Officer Thomas had testified that “he
broadcast the lookout to the rest of his team who were at the station,” i.e., when he
was not with Officer Williams. Counsel informed the suppression court that, based
on Officer Thomas’s testimony, “we’re missing a radio run broadcast of Officer
Thomas. . . . [W]e are missing that Jencks.”
The prosecutor responded both that the government had “turned over fully
what [the government] ha[d],” specifically fifty-nine seconds of recording from
which the defense excerpted the clip it had played, and that “there isn’t anything else
that is out there that we have not turned over.” But the prosecutor also offered to
ask “the officer that specific question[] just to make sure.” The suppression court
ordered a brief recess to allow the prosecutor to speak to Officer Thomas.
After the recess, defense counsel represented that his team had listened to all
the recordings turned over by the government and had confirmed that none contained
Officer Thomas’s broadcast of the initial lookout. Accordingly, defense counsel
moved to strike Officer Thomas’s testimony as a sanction for the government’s
failure to fulfill its disclosure obligations.
The prosecutor responded that “there’s no Jencks violation. The radio run
[the government had turned over] is the radio run that the officer was referring to
when he testified.” The prosecutor recounted his conversation with Officer Thomas
during the recess: “I asked the officer was there anything else that he was referring 6
to? He said, ‘No, this is it.’” The prosecutor further represented that the officer had
told him:
at the point that the defense counsel stopped the recording[,] that it goes on, and you actually hear two voices on there; and he says that he was talking to Officer Williams. And so, defense counsel has the full radio run that was made and transmitted. There was nothing else that is outstanding . . . .
Parrying an offer by the suppression court to allow the defense to recall
Officer Thomas to the stand, the defense kept the focus on the government, asking
if the prosecutor had listened to the radio broadcast itself. The prosecutor
“confirm[ed]” that he had “listened to it yesterday . . . when [he] sent [the recording]
to defense counsel [and] . . . actually pointed [counsel] to the specific time that he
used today”; the prosecutor also stated that “in speaking to the officer this morning,
I played it for him and listened to it again with him this morning,” before court.3
The prosecutor then repeated that the radio run “continues on [past the part defense
counsel played during the hearing], and you hear more than one voice on the radio.”
Defense counsel told the suppression court and the prosecutor that the fact
that Officer Thomas’s voice was heard after Officer Williams’s voice on this
recording was nonresponsive to the defense’s concerns. Because the “officer’s
3 The prosecutor also spoke to Officer Thomas during a recess but did not play the recording at that time. 7
sworn testimony” that the radio run was Officer Williams “‘[r]epeating the lookout
that [Officer Thomas] had given,’” the defense was “looking for . . . the lookout
before that 59 seconds” (emphasis added) of radio run the government had provided.
The prosecutor responded by accusing defense counsel of “opening the door
to some sort of witch-hunt for something that does not exist,” and maintained “there
was nothing else that was made outside of what we turned over and what he listened
to[,] . . . [and] [t]he defense was given exactly what was made.” Defense counsel
replied that his argument that a radio run was missing was based on Officer
Thomas’s statements “under oath” which were made after Officer Thomas “listened
to [the disclosed recording]”: “[W]e . . . know[] based on the officer’s sworn
testimony that he broadcast the lookout. We know that there’s a missing lookout. It
is not a witch-hunt. We know from the officer’s testimony.” The prosecutor
reiterated, however, that the radio run that was played “is the only thing that there
is.”
After further back and forth, the suppression court listened to the entire 59-
second radio run, focusing on the government’s representation that, after Officer
Williams’s broadcast, Officer Thomas’s voice could be heard. Defense counsel
again tried to explain that “we know that Officer Thomas broadcasted a lookout. So
how does Officer Williams get a lookout to repeat if Officer Thomas has not already
broadcasted a lookout prior to this clip? We’re just missing it.” The government 8
again made the observation that “you hear the two different voices on there” and
represented that “that area” was what Officer Thomas had been referring to on the
stand; there was nothing else.
The suppression court ruled that, “based on both the tape that [it] listened to
and the representations of government counsel” there was no Jencks violation.
Notwithstanding the court’s ruling, defense counsel attempted one last time to help
the court understand that (1) the missing recording was from when “prior to Officer
Williams[] being involved, Officer Thomas was by himself” and “met with the
anonymous tipper”; (2) Officer Thomas “himself broadcasted a lookout. . . . [T]hat
is what we are missing”; and (3) the recording of Officer Williams’s radio run had
to come from a later point in time because Officer Williams had gotten the
information he broadcast from Officer Thomas. The government stood silent, and
the suppression court informed counsel that it was denying the motion to strike
Officer Thomas’s testimony as a sanction for the government’s violation of its
Jencks obligations. Mr. Henderson was convicted that day in a stipulated trial.
Mr. Henderson appealed the denial of the motion to strike Officer Thomas’s
testimony and this court remanded. Henderson v. United States, No. 18-CF-817,
Mem. Op. & J. at 3 (D.C. Feb. 28, 2020). We directed the Superior Court to “conduct
an evidentiary hearing to determine if a recording of Officer Thomas’s original
description exist[ed],” and to determine the appropriate course of action if the 9
recording had existed “but was subsequently lost or destroyed.” Id. at 3 & n.2.
The case was assigned to the Honorable Julie Becker on remand. At the May
2021 remand hearing, the government, represented by a different prosecutor, first
called a supervisor from the Transcription Unit of the Office of Unified
Communications, which stores the recordings of all MPD radio transmissions for
three years. The OUC witness testified that in response to a 2020 request from the
remand prosecutor she had searched for radio runs connected to Mr. Henderson’s
case on the secure channel for the seventh district and had only found 59 seconds of
communication. The government then called Officer Thomas. Consistent with his
testimony at the suppression hearing, Officer Thomas testified on direct that he had
communicated the tip for the person with a gun to his fellow officers “[o]ver the
radio.” Although Officer Thomas could not remember if he was alone when he
communicated the tip, he acknowledged on cross that when he testified under oath
at the suppression hearing he “actually . . . remembered what had happened” and he
agreed that “the things that [he] testified to . . . were true.” The government did not
seek to ask Officer Thomas how he could have been alone when he issued the first
lookout but with Officer Williams when a recording was made. But the remand
court did. In response to the court’s questions, Officer Thomas surmised that he
inadvertently set his radio to the wrong channel, which would also have been
recorded, and that when he did not get a response to his lookout, he had repeated it 10
to Officer Williams when they connected in person.
Asked by the remand court what he thought “the evidence is at this point . . .
regarding the recording,” the prosecutor conceded that there was a missing recording
from before Officer Thomas “met up” with Officer Williams “on [a] channel that
the government did not find and disclose to defense counsel.” In light of this
concession, and the fact that the recording of this 2017 radio run had now been
destroyed per OUC’s retention policy, defense counsel argued that Officer Thomas’s
testimony should be struck as a sanction. Defense counsel did not contend that the
government acted in bad faith. Defense counsel did, however, argue that the
government had been grossly negligent by failing to diligently look for the missing
recording in response either to the defense’s discovery requests prior to the
suppression hearing or to the testimony of its own witness at the suppression
hearing—both points in time before the OUC would have destroyed the recording. 4
The remand court asked the parties to brief the issue of the appropriate
sanction, but before it ended the hearing, it allowed the government to recall the
OUC witness and the defense to recall Officer Thomas. The OUC witness testified
4 The court asked the prosecutor representing the government on remand about his contact with OUC in 2020, while the case was on appeal the first time. The prosecutor explained that he had reached out to OUC to ensure that the government had not missed anything on the seventh district channel, but he did not speak to Officer Thomas at this time and did not do so until the court scheduled the remand hearing. 11
that there are “maybe about 100 channels that [are] out there” but that some of these
channels “are not consistently used on a daily basis”; and, although it would be time
consuming, if they had been able to get more specifics about who had made the
broadcast when and under what circumstances, OUC could have located a recording
of it. Officer Thomas testified that given the setup of his radio, if he “accidentally
switched to another channel” using the buttons on the device, he would have
switched to “[o]ne of five or six other channels”; but if he switched zones using the
dial at the top, he might have accessed 80-100 channels.
As directed by the remand court, the parties submitted in writing their
arguments about whether the government had been grossly negligent, which the
defense asserted would require the court to strike Officer Thomas’s testimony. The
remand court subsequently issued an order concluding that the government had
failed to fulfill its Jencks obligations. Specifically, the court found that “there was,
in fact, another recording of Officer Thomas’s lookout, made prior to the one the
government played at the suppression hearing” but “that recording [of Officer
Thomas’s broadcast] has been destroyed pursuant to the government’s regular
retention policy.”
The remand court also found that “both the police and the prosecutor were
negligent in failing to discover the error before or during the hearing on the motion
to suppress.” The court stated that: 12
[g]iven Officer Thomas’s testimony – that he broadcast the lookout immediately upon receiving the tip – the government should have realized that the radio run it produced, which contained Officer Williams’s lookout, was not the only recording in this case. This was especially so after defense counsel raised the point at the suppression hearing, prompting the prosecutor and Officer Thomas to examine the issue again. Had the government followed the point to its logical conclusion, it would have known to look for the first recording at the OUC. And, as it acknowledges, had the government looked for the other radio run it likely would have found it, albeit with some difficulty.
(internal quotation marks and citation omitted).
Although the remand court quantified this negligence as “significant,” the
court declined to find that the government was grossly negligent. The remand court
reasoned that “[t]he issue of the missing radio run here arose in the middle of the
suppression hearing, and appears to have confounded not only the officer and the
prosecutor, but also the trial court.” Contrasting this scenario with the government’s
loss of physical evidence of “obvious significance” in violation of Rule 16 in Smith
v. United States, 169 A.3d 887, 893 (D.C. 2017), the court found the existence of a
missing radio run was “not ‘obvious,’” and did not become so until the remand
hearing. (The remand court also noted that Officer Thomas’s testimony about
broadcasting on the wrong channel “shed[] light on why both he and the prosecutor
believed there were no additional radio runs.”) After weighing the degree of
negligence, the importance of the evidence lost, and the totality of the evidence
adduced at the suppression hearing, the remand court found that the “balance of
factors” did not warrant sanctions even if the government had been grossly 13
negligent. Mr. Henderson timely appealed.
II. Analysis
The government has “an affirmative duty” under the Jencks Act, 18 U.S.C.
§ 3500(b), and Super. Ct. Crim. R. 26.2 “to preserve ‘statements’ of its witnesses
and, upon motion of the defendant, to disclose and produce those statements” which
relate to the subject of their testimony. Slye v. United States, 602 A.2d 135, 138
(D.C. 1992); see also Robinson v. United States, 825 A.2d 318, 325-26 & n.4 (D.C.
2003). “The purpose of the Jencks Act is to aid in the search for truth by permitting
access to prior statements of government witnesses for possible impeachment.”
Slye, 602 A.2d at 138 (internal quotation marks omitted); see also United States v.
Perry, 471 F.2d 1057, 1062 n.21 (D.C. Cir. 1972). “That purpose is frustrated when
the government . . . allows potential Jencks Act statements to be needlessly
destroyed or lost,” Slye, 602 A.2d at 138, and the government bears the “heavy
burden . . . to explain the loss of” any Jencks material. Robinson, 825 A.2d at 330.
When the government violates its Jencks obligation, the trial court typically has
discretion to craft appropriate sanctions depending on, among other things, the
government’s degree of negligence and the importance of the lost evidence. Id. at
331. If the government’s culpability in the loss of Jencks material rises to the level
of gross negligence or bad faith, however, this court has said “the trial court must
exclude the . . . testimony” of the witness whose statement was lost. United States 14
v. Jackson, 450 A.2d 419, 427 (D.C. 1982) (citing Johnson v. United States, 298
A.2d 516, 520 (D.C. 1972)); see also Jones v. United States, 535 A.2d 409, 411-12
& n.10 (D.C. 1987) (upholding imposition of missing evidence instruction where the
court found less than gross negligence but noting that “[i]f more was involved,
striking would have been mandatory”).
On appeal Mr. Henderson argues that, just as in Smith, “two responsible
government departments,” 169 A.3d at 894—the police and the prosecution—failed
to take the necessary steps to preserve and produce the recording of Officer
Thomas’s radio run, and thus the court should have concluded the government was
grossly negligent. Mr. Henderson further argues that this case is “far more
egregious” than Smith, because the prosecution obfuscated the recording’s existence
while there was still time to find it before it was destroyed, by “offering the logically
impossible explanation that the radio run Officer Thomas was talking about was
given after the Williams lookout.” Mr. Henderson argues that, as a result of this
gross negligence, striking Officer Thomas’s testimony at Mr. Henderson’s
suppression hearing was the required sanction; but even if a discretionary assessment
of sanctions was warranted, anything less than striking Officer Thomas’s testimony
would be unreasonable. The government has not contested that a determination of
gross negligence would require Officer Thomas’s testimony at the suppression
hearing to be struck. The government argues only that its negligence in failing to 15
produce the recording of Officer Thomas’s radio run did not rise to the level of gross
negligence and that, in light of the government’s ordinary negligence, the remand
court reasonably exercised its discretion not to impose a sanction.
A. Whether the Government’s Conduct Was Grossly Negligent
In a number of cases, this court has said that “[d]etermination by a trial court
regarding the degree of negligence involved in the loss of Jencks material is a finding
of fact which we will not disturb on appeal unless ‘clearly erroneous.’” See Jones
v. United States, 535 A.2d at 411; accord Slye, 602 A.2d at 139. The “ultimate
inquiry” of “appl[ying] the controlling legal standard to the historical facts,” see
Thompson v. Keohane, 516 U.S. 99, 112-13 (1995) (internal quotation marks
omitted), may well be more appropriately termed a mixed question of fact and law
that we review de novo. See Socash v. Addison Crane Co., 346 F.2d 420, 422 (D.C.
Cir. 1965) (Bazelon, C.J., concurring) (internal quotation marks omitted) (opining
that “ultimate determinations, such as negligence vel non, are mixed questions of
law and fact freely reviewable on appeal”); cf. Miller v. United States, 14 A.3d 1094,
1121-23 (D.C. 2011) (concluding that the trial court’s determination of whether
evidence was suppressed for Brady purposes involved the “legal consequences of
the undisputed historical facts” and so was not entitled to appellate deference). But
we need not divert our attention to that question in this case because we conclude
that the remand court’s determination of less-than-gross negligence on this record 16
was clearly erroneous. 5 See Lawrence v. United States, 566 A.2d 57, 60 (D.C. 1989)
(explaining “the judge’s factual findings will not be disturbed unless they are clearly
erroneous, i.e., without substantial support in the record.”); see also D.C. Code
§ 17-305(a) (granting this court authority to overturn factual determinations that are
“plainly wrong or without evidence to support [them]”).
The remand court found that “both the police and the prosecutor were
negligent in failing to discover” that the government did not have Officer Thomas’s
5 This court has not articulated a standard definition of gross negligence in the Jencks or Rule 16 sanctions context, and we do not attempt to do so in this case. We focus instead on the particular record facts. Although the government relies on Atkinson v. District of Columbia, 281 A.3d 568, 571 (D.C. 2022), this court has not resolved whether to embrace civil negligence standards when assessing whether to impose sanctions for discovery violations in criminal cases. See Crocker v. United States, 253 A.3d 146, 159 & n.39 (D.C. 2021) (declining to apply civil standards to evidentiary issues in a criminal case, but not deciding what constitutes gross negligence in the Rule 16 context). But see Battocchi v. Wash. Hosp. Ctr., 581 A.2d 759, 766-67 (D.C. 1990) (importing standards for missing evidence instructions from the Jencks context into the civil context). Moreover, the government provides no explanation why the particular definition of gross negligence discussed in Atkinson, regarding governmental liability for emergency vehicle accidents under D.C. Code § 2-412, should apply in this case. Atkinson, 281 A.3d at 570-71. This standard is only one of many. And for that reason, gross negligence in tort law has been called “a legal twilight zone which exists somewhere between ordinary negligence and intentional injury,” Blain LeCesne, Crude Decisions: Re-examining Degrees of Negligence in the Context of the BP Oil Spill, 2012 Mich. St. L. Rev. 103, 122, 129 (2012) (internal quotation marks omitted), ranging from “a lack of even slight diligence or care” to “a conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party,” Negligence, Black’s Law Dictionary (11th ed. 2019). 17
recording to provide to the defense, but the government’s collective conduct did not
amount to gross negligence because “the issue of the missing radio run . . . arose in
the middle of the suppression hearing, and . . . confounded” both Officer Thomas
and the prosecutor at the suppression hearing. 6 Based on its findings that the
existence of the recording was “not ‘obvious,’” the remand court, citing Smith v.
United States, 169 A.3d 887 (D.C. 2017), 7 concluded that the government actors
involved could not be grossly negligent for failing to investigate further until it was
too late to save the recording from being destroyed. The record does not support
these findings.
6 The remand court further observed that the issue “confounded . . . the trial court,” but that is not a mitigating factor in assessing the government’s negligence on this record. As discussed below, the suppression court’s confusion is attributable at least in part to the misdirection the court received from the prosecution. Nevertheless, the suppression court had an “affirmative duty to conduct an independent inquiry into the existence of Jencks material,” Lazo v. United States, 54 A.3d 1221, 1232 (D.C. 2012) (internal quotation marks omitted) (quoting Flores v. United States, 698 A.2d 474, 481 (D.C. 1997)), and its failure to fulfill that obligation necessitated a remand. 7 Although we agree that the obviousness of the existence of another recording is an appropriate consideration in assessing the government’s negligence in this case, the “obviousness” consideration in Smith, a Rule 16 case, related to a different issue: the evidentiary import of the destroyed physical evidence (a pair of shorts in which drugs were found). See Smith, 169 A.3d at 893-84. Here the evidentiary import of the recording of Officer Thomas’s broadcast was established by the Jencks Act, see supra note 2, and Super. Ct. Crim. R. 26.2(f)(2) (defining a statement subject to disclosure under the rule to include “a substantially verbatim, contemporaneously recorded recital of the witness’s oral statement”) and was not contested. 18
Although the existence of a missing recording was fully exposed by defense
counsel at the suppression hearing, to say the issue “arose” at that time overlooks
the government’s obligation before a court proceeding to locate, preserve, and
produce the statements of its witnesses. Slye, 602 A.2d at 138 (explaining that the
Jencks Act “imposes an affirmative duty upon the government to preserve
‘statements’ of its witnesses and, upon motion of the defendant, to disclose and
produce those statements”). Thus, the issue “arose” when defense counsel requested
that all police radio runs be preserved, or, at the latest, the day before the hearing
when the prosecutor obtained the recording of Officer Williams’s 59-second
broadcast—the recording that could not have been Jencks for the witness the
government intended to put on the stand, Officer Thomas.
Nor did any evidence come to light at the remand hearing that made it newly
clear that the recording of Officer Thomas’s broadcast was missing. To the contrary,
the evidence at the remand hearing regarding the government’s knowledge of the
existence of a missing recording was precisely the same as it had been at the
suppression hearing. Consequently, it was just as obvious at the suppression hearing
that the government had not done—and continued not to do—what was necessary to
locate the recording.
In particular, we see no evidence supporting either the remand court’s finding
that the suppression prosecutor was “confounded” or its assessment that he “believed 19
there were no additional radio runs.” Because the government did not call the
suppression prosecutor to testify at the remand hearing, but see Robinson, 825 A.2d
at 330 (explaining the government bears the “heavy burden . . . to explain the loss
of” any Jencks material), the only evidence of his state of mind is from the transcript
of the suppression hearing, the review of which led the remand court to conclude
that the prosecutor should have realized the government had not fulfilled its Jencks
obligation, i.e., there was no basis for any confusion. There is no point in that
transcript at which the suppression prosecutor expressed confusion, nor did the
prosecutor act confused. Rather he ignored the evidence, he did not ask questions,
and he attacked the only person (defense counsel) who did.
Both Officer Thomas’s testimony that he was alone when he broadcast the
anonymous tip and defense counsel’s cross-examination of Officer Thomas
establishing that his voice was not on the recording produced by the government
could not have made more plain that the recording of Officer Thomas’ broadcast
was missing. But the prosecutor’s immediate response was to deny there was
anything else to turn over. To be sure, the prosecutor volunteered to speak to Officer
Thomas and subsequently represented to the court that the officer had told him
during a recess that the broadcast to which the officer had been referring in his
testimony was the broadcast Officer Williams made in Officer Thomas’s presence.
This could not be squared with Officer Thomas’s sworn testimony, however, as 20
defense counsel immediately pointed out. And, if in fact it was what Officer Thomas
told the prosecutor—but we note the prosecutor did not call Officer Thomas back to
the stand 8—it should have prompted a confused prosecutor to ask probing questions
to get to the bottom of the matter (as was ultimately done at the remand hearing),
instead of to simply accept an explanation that was patently illogical. Lastly, when
defense counsel continued to press the already clear points that the recording the
government had provided could not be Jencks for Officer Thomas, the prosecutor’s
explanation that the recording produced was the one about which Officer Thomas
had testified could not be correct, and thus a recording was missing, the prosecutor
did not indicate that he did not understand the operative facts. 9 Instead, he reacted
8 Given that this proffer did not align with Officer Thomas’s testimony at the suppression hearing (or at the remand hearing reaffirming the truth of his suppression hearing testimony), the government should have put Officer Thomas back on the stand at the suppression hearing if it wanted to rely on his out-of-court statements. Cf. Johnson v. United States, 347 F.2d 803, 805 (D.C. Cir. 1965) (“It is elementary . . . that counsel may not premise arguments on evidence which has not been admitted.”). The government asserts, however, that “[t]he prosecutor . . . offered to recall Officer Thomas for further inquiry, which defense counsel declined.” This is factually wrong; the court offered defense counsel that opportunity. See supra Part I. It is also legally irrelevant because it is the government’s burden to preserve evidence and disprove potential Jencks violations once the defense makes a prima facie case that Jencks material has not been produced. See Williams v. United States, 355 A.2d 784, 788 (D.C. 1976). 9 The fact that it did not become clear until the remand hearing what had happened to the missing recording is beside the point. It was clear at the suppression hearing that the recording was missing, and had the prosecutor accepted that fact, he could have made the necessary inquiries to find it before its destruction. The obvious 21
first by attacking defense counsel for doing their job, and then by making the
nonresponsive assertion that the government had produced the only recording it had
located. We thus see no foundation for the remand court’s determination that the
prosecutor was “confounded” or that he legitimately “believed” there was nothing
else to turn over under Jencks.
Our dissenting colleague cites Anderson v. City of Bessemer City for the
proposition that “[w]here there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous,” 470 U.S. 564, 574
(1985). But that principle only comes into play when there is some substantial
evidence pointing in different directions. See Johnson v. United States, 232 A.3d
156, 167-68 (D.C. 2020) (explaining “[a] finding is clearly erroneous when although
there is evidence to support it, the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been committed” but that “[w]here
there are two permissible views of the evidence, the factfinder’s choice between
them cannot be clearly erroneous”) (quoting United States v. United States Gypsum
Co., 333 U.S. 364, 394-95 (1948) and Anderson, 470 U.S. at 574) (emphasis added)).
Here our point is that the government had put forward no evidence to support the
first step would have been to review the five or six channels Officer Thomas testified at the remand hearing he might have switched to by pressing the wrong button on his radio. 22
remand court’s particular finding that the prosecutor was confounded, and our law
is clear that the absence of supporting evidence for factual findings constitutes a
basis to disregard them. See Lawrence, 566 A.2d at 60 (explaining that “the judge’s
factual findings will not be disturbed unless they are clearly erroneous, i.e., without
substantial support in the record”); see also Hawkins v. United States, 663 A.2d
1221, 1225 (D.C. 1995) (“We are bound by the trial court’s factual findings unless
clearly erroneous or not supported by the evidence.” (internal citation omitted)
(emphasis in the original)).
Instead of being confounded, the suppression hearing transcript shows that the
prosecutor failed to take the steps he should have taken to obtain the recording of
Officer Thomas’s broadcast, actively disregarded evidence that it was missing, and
sowed confusion in the wake of his negligence. First, the prosecutor, who told the
suppression court that he had met with Officer Thomas before the suppression
hearing and listened to the 59-second recording of Officer Williams’s radio run at
least twice—once before he turned it over to the defense, and then with Officer
Thomas—should have known that this recording could not be Jencks for Officer
Thomas: even if the prosecutor could not distinguish Officer Thomas’s voice from
Officer Williams’s and even if he had not been told by Officer Thomas that his voice
was not on the recording, the prosecutor should have known that a recording with
two voices on it could not be the recording of Officer Thomas’s solo broadcast. 23
Second, the prosecutor failed to acknowledge on his own that the produced recording
was not Jencks material for Officer Thomas after the officer testified at the
suppression hearing that the radio run played by defense counsel was “not [his] radio
transmission with the lookout in this case”; he had been “alone . . . going to get [his]
lunch” when he got the tip about the person with the gun; and he had broadcast the
tip to his “teammates . . . [as he] was going back to the station, because [he] was by
[him]self, and [he] didn’t want to go in the area by [him]self.” Third, the suppression
prosecutor refused to accept that the recording of Officer Thomas’s broadcast was
missing once defense counsel pointed it out. As the remand court found, the
prosecutor should have realized the recording of Officer Williams’s lookout:
was not the only recording in this case. . . . especially . . . after defense counsel raised the point at the suppression hearing. . . . Had the government followed the point to its logical conclusion, . . . it would have known to look for the first recording at the OUC.
(emphasis added) (internal quotation marks omitted). Fourth, instead of following
the point to its “logical conclusion,” the prosecutor went in the opposite direction
and pursued an illogical argument: the prosecutor argued that the radio run Officer
Thomas testified to making alone and the radio run later made by Officer Williams
with Officer Thomas at his side were one and the same. This simply could not be,
as defense counsel pointed out. Fifth, the prosecutor then attacked defense counsel
for pointing out the illogic of his argument and accused counsel of “opening the door
to some sort of witch-hunt for something that does not exist” when defense counsel 24
was simply zealously advocating for the discovery to which Mr. Henderson was
clearly entitled based on the sworn testimony of the government’s own witness.
Sixth, the prosecutor’s argument confounded the suppression court, leading to the
court’s erroneous determination that no Jencks violation had occurred.
As we discuss further below, this conduct, in our view, is sufficient to support
a finding of gross negligence and the court should have found so here. But, for
completeness, we consider the trial court’s findings regarding Officer Thomas. As
with the prosecutor, we conclude that there is no evidence that Officer Thomas was
confounded by the missing radio run. Indeed, there is evidence to the contrary. At
the suppression hearing he testified very clearly on direct examination that he was
alone when he made his broadcast and on cross examination that the 59-second
recording the prosecution had turned over to the defense was not his voice. The
missing Jencks issue was not discussed until after Officer Thomas finished
testifying. At that point, the prosecutor did not seek to recall Officer Thomas to ask
him about a missing recording under oath. The prosecutor merely proffered to the
court that Officer Thomas had told him there was no recording other than Officer
Williams’s. This is not evidence. Cf. Johnson, 347 F.2d at 805 (“It is elementary . . .
that counsel may not premise arguments on evidence which has not been admitted.”).
Where the government never put Officer Thomas back on the stand at the
suppression hearing to explore the issue of the missing recording and never elicited 25
any testimony on remand to demonstrate that he had been confused about its
existence, the remand court should not have attributed any confusion to Officer
Thomas, particularly given that when he did take the stand again at the remand
hearing, he readily explained that the reason the broadcast had not been found on the
seventh district channel was likely because he had accidentally switched radio
channels.
But just as there is no evidence that Officer Thomas was confused, there is
very little in the way of evidence regarding what Officer Thomas did or did not do
to preserve and produce the recording of his broadcast. Officer Thomas never
testified either at the suppression hearing or the remand hearing about when he first
learned that the prosecution was looking for a recording of his broadcast, what he
had done or not done to help the prosecution find it, or when he first listened to the
59-second recording of Officer Williams’s broadcast that was turned over to defense
counsel. And again he was never asked at the remand hearing about the statements
the prosecutor had attributed to him via proffer at the remand hearing. In the absence
of such testimony, there is not much in the way of support for the conclusion that
Officer Thomas was negligent beyond accidentally broadcasting on the wrong
channel (which did not impede his broadcast from being recorded and preserved),
an act which seems more appropriately characterized as a mere “mishap all of us 26
may encounter,” as opposed to gross negligence. (Earl W.) Jones v. United States,
343 A.2d 346, 349 n.6, 352 (D.C. 1975) (internal quotation marks omitted).
We acknowledge that the government has not challenged the remand court’s
determination that Officer Thomas was negligent. Nevertheless, we are reluctant to
endorse Mr. Henderson’s argument that the loss of Officer Thomas’s recorded
broadcast was attributable to the combined negligence of two government entities—
the police and the prosecution—and that a finding of gross negligence was thus
compelled pursuant to Smith. Instead, we view Smith as informative and as
supporting a more general proposition that repeated acts of negligence attributable
to the government, taken together, may amount to gross negligence. In Smith, the
negligent acts were attributable to two separate government actors: neither the police
nor the prosecutor preserved clothing in which the drugs the defendant was charged
with possessing were found, though they both had opportunities to do so. Smith, 169
A.3d at 893-94. In Mr. Henderson’s case, the prosecutor alone repeatedly neglected
his duty under Jencks. We conclude that this was “no less than gross negligence,”
just as in Smith. Id. at 894.
We buttress this determination by looking to our ordinary negligence cases in
the Jencks context. Although these cases do not establish a bright line divide
between ordinary and gross negligence, the government’s actions in this case far
surpass the “mishaps” deemed ordinary negligence in our case law. See (Earl W.) 27
Jones, 343 A.2d at 349 n.6, 352 (officer was unable to find notes months later
although he had taken steps to “safeguard” them); see also, e.g., Woodall v. United
States, 684 A.2d 1258, 1260 n.3, 1261 (D.C. 1996) (officer followed protocol to turn
in contact card but department was later unable to find it after thorough search);
Moore v. United States, 353 A.2d 16, 19 (D.C. 1976) (officer generally stored notes
in his locker but later could not find them). Here, there were aggravating factors:
the prosecutor actively disregarded that more steps were required to find and produce
the missing radio run even when he was confronted with facts and argument at the
suppression hearing that made the need for further action patently clear; he put
forward an illogical argument as to why nothing was missing and wrongly accused
defense counsel of pursuing a “witch-hunt”; and his denial of the existence of the
recording of Officer Thomas’s broadcast led to its destruction. As both the remand
court and the government acknowledged, if the government had taken steps to find
the radio run at the time of the suppression hearing, it “likely would have found it.”
We disagree with the government that our decision in Slye v. United States,
should compel us to put this case on the ordinary negligence side of the line. In Slye,
the prosecutor took no action in response to a defense request for recordings of 911
calls by the complainant and those recordings were destroyed. 602 A.2d at 137. On
appeal, we concluded that the record supported a determination that “the
government’s failure to produce was the result of negligence but not gross 28
negligence or willful misconduct.” Id. at 139. But we noted that “we [were] deeply
disturbed by the indifference shown by the government in its failure to preserve
discoverable evidence.” Id. at 138. The government argues that because the
prosecutor took action in Mr. Henderson’s case, his conduct cannot be deemed worse
than the prosecutor’s complete failure to act in Slye. To the contrary, Slye only
reinforces our conclusion of gross negligence in Mr. Henderson’s case. Unlike in
Slye, the prosecutor here did not just fail to act in time for the radio run to be
preserved; the government repeatedly denied that there was anything to further
investigate or preserve in the face of conflicting sworn testimony by its witness. The
government’s active resistance to its Jencks obligation pushed its “indifference” over
the threshold of “deeply disturb[ing]” into the realm of gross negligence. Slye, 602
A.2d at 138.
B. Appropriate Sanction
We review the remand court’s choice of sanction for abuse of discretion. See
Robinson, 825 A.2d at 331-32. The remand court erroneously quantified the
government’s negligence as merely “significant,” but, citing Smith, a Rule 16 case,
noted that even if the government had exhibited gross negligence, striking Officer
Thomas’s testimony as Mr. Henderson requested “would not necessarily follow.” In
making this ruling, the court did not address clear statements of law from our Jencks 29
cases, cited by Mr. Henderson, uncontested by the government, 10 and based in the
language of the statute itself, 11 that require a court to strike a witness’s testimony in
its entirety once there is a finding that Jencks material has been lost or destroyed as
a result of gross negligence. See Jackson, 450 A.2d at 427 (per curiam) (“Where the
loss is a result of bad faith or gross negligence, the trial court must exclude the
witness’[s] testimony.”) (citing Johnson, 298 A.2d at 520); see also Jones v. United
States, 535 A.2d at 411 n.10 (“If more [than ordinary negligence] was involved,
striking would have been mandatory.”). As the trial court’s decision not to strike
Officer Thomas’ testimony fell outside the conceded “range of permissible
alternatives,” Johnson v. United States, 398 A.2d 354, 365 (D.C. 1979), and the
government has not argued that the court’s refusal to strike the testimony of Officer
Thomas—the only witness who it called to testify at the suppression hearing—was
harmless, see id. at 366 (recognizing harm is a component of an abuse of discretion
analysis); Hairston v. United States, 908 A.2d 1195, 1199-1200 (D.C. 2006) (per
10 As noted above, the government’s arguments against sanctions are premised on the assumption that it committed only ordinary negligence. 11 18 U.S.C. § 3500(d) (“If the United States elects not to comply with an order of the court . . . the court shall strike from the record the testimony of the witness . . . .”); Super. Ct. Crim. R. 26.2(e) (“If the party who called the witness disobeys an order to produce[,] . . . the court must strike the witness’s testimony from the record.”); see also Perry, 471 F.2d at 1063 (rejecting a “literal” reading of “elects not to comply” and interpreting it as a “purposive or negligent act on the part of the Government which [leads to] . . . the loss or destruction of documents which otherwise the Government could be compelled to produce”). 30
curiam) (government may waive harmlessness where it is not obvious), we conclude
the court abused its discretion.
III. Conclusion
For the foregoing reasons, we remand to the trial court to strike Officer
Thomas’s testimony, vacate Mr. Henderson’s convictions, and conduct further
proceedings consistent with this opinion.
So ordered.
FISHER, Senior Judge, dissenting: If I were a trial judge, I might well decide
to strike the testimony of Officer Thomas. That would be a reasonable decision
based on this record. But I am not a trial judge, and my colleagues in the majority
are not either. It seems to me that they have reached their decision based on a
combination of appellate fact-finding and de novo review.
The Supreme Court has instructed “that the administration of the Jencks Act
must be entrusted to the ‘good sense and experience’ of the trial judges subject to
‘appropriately limited review of appellate courts.’” United States v. Augenblick, 393
U.S. 348, 355 (1969) (quoting Palermo v. United States, 360 U.S. 343, 353 (1959)).
Our own cases confirm that our review should be limited. Thus, “[t]he decision
whether or not to impose sanctions for Jencks Act violations, as well as the choice
of sanctions, is within the trial court’s discretion. Its decision either way will not be 31
overturned on appeal unless the appellant can show that this discretion has been
abused.” Slye v. United States, 602 A.2d 135, 138 (D.C. 1992) (citing Jones v.
United States, 535 A.2d 409, 411 (D.C. 1987)).
“Discretion signifies choice,” and “[t]he concept of ‘exercise of discretion’ is
a review-restraining one.” Johnson v. United States, 398 A.2d 354, 361-62 (D.C.
1979). Because Judge Becker did a careful and conscientious job of complying with
our remand order, and considered the proper factors, I cannot agree that she abused
her discretion in deciding not to strike the officer’s testimony.
The majority concludes to the contrary by saying that the government was
guilty of gross negligence and that the trial court therefore had no choice but to strike
the testimony. But here, again, our review is limited. “Determination by a trial court
regarding the degree of negligence involved in the loss of Jencks material is a finding
of fact which we will not disturb on appeal unless it is clearly erroneous.” Jones,
535 A.2d at 411 (internal quotation marks omitted). Although the majority
acknowledges this standard of review, it fails to apply it correctly.
The clearly erroneous “standard plainly does not entitle a reviewing court to
reverse the finding of the trier of fact simply because it is convinced that it would
have decided the case differently.” Anderson v. City of Bessemer City, 470 U.S. 564, 32
573 (1985). “[A]ppellate courts must constantly have in mind that their function is
not to decide factual issues de novo.” Id. (internal quotation marks omitted).
According to the majority, there was no evidence to support the trial court’s
finding that the prosecutor was “confounded” during the suppression hearing or the
court’s assessment that he believed there were no additional radio runs. It is true
that the prosecutor did not say that he was confused, but that does not mean that he
wasn’t. Perhaps the prosecutor should not have been confounded, but the
transcript of the hearing certainly suggests that he was not thinking clearly.1
More to the point, the majority relies upon the very same record to conclude that
the prosecutor was not “confounded.” The Supreme Court has cautioned that
“[w]here there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.” Bessemer City, 470 U.S. at 574.
We should adhere to the standards that govern our review and should affirm
the trial court’s decision.
1 Defense counsel did not claim that the prosecutor was acting in bad faith, and Judge Becker concluded that there was no basis for a finding of bad faith. The majority does not assert otherwise.