OPINION OF THE COURT
O’DONNELL, Judge:
At the appellant’s trial, Specialist Four Dale P. Schafer, a confidential informant for the local criminal investigators, testified that he purchased marihuana from the appellant on 19 and 21 February 1980. After each transaction, Schafer made brief notes which in sum related to the time and location of the sale, the name of the appellant, and the number of his license plate. The informant orally related this information to Agent Leslie D. Allen, the criminal investí[1012] gator to whom he was detailed.1 Allen made notes which he later incorporated into an official report. Sometime later, Schafer destroyed his notebook as he feared that his undercover role would be discovered by the people with whom he was living.
After the informant testified, the defense moved for production of Schafer’s notes pursuant to the Jencks Act, 18 U.S.C. § 3500.2 The judge first granted the motion. After Schafer clarified the question of whether he gave the notes to Allen and testified that he had destroyed his notebook, the defense moved to strike his testimony. The judge denied the motion on the grounds that the notes were never in the possession of the Government; that Schafer was not an agent of the Government; that the defense was aware of the discrepancies in the notes and was able to cross-examine Schafer on them; and that the information was contained in the official report prepared by Agent Allen. The appellant was convicted of wrongful possession, transfer and sale of marihuana on 19 February and wrongful sale and transfer of marihuana on 21 February. He was sentenced to a bad-conduct discharge, confinement at hard labor for two months, and reduction to the lowest enlisted grade. The convening authority approved the sentence.3
Initially, we must determine whether Schafer’s notes qualified as a statement within the meaning of the Jencks Act. For our purposes, a “statement” is defined in the Act as “a written statement made by [a Government witness] and signed or otherwise adopted by him.” (Section (e)(1).) Although there are cases which have questioned the applicability of the Jencks Act to agents’ notes, particularly when the substance of the notes has been incorporated into an official report,4 we believe the weight of authority today is to the contrary. See, e.g., United States v. Harrison, 524 F.2d 421 (DC Cir. 1975); United States v. Johnson, 521 F.2d 1318 (9th Cir. 1975), and cases cited therein. Agents’ notes are not limited to those made during witness interviews but extend as well to notes relating to other aspects of an investigation made by investigators and undercover agents. See, Lewis v. United States, 340 F.2d 678, 682 (8th Cir. 1965); Holmes v. United States, 271 F.2d 635 (4th Cir. 1959); United States v. Dixon, 8 M.J. 149 (C.M.A.1979); United States v. Albo, 22 U.S.C.M.A. 30, 46 C.M.R. 30 (1972). There is some [1013] question whether surveillance notes fall within the Act. See, United States v. Bernard, 623 F.2d 551 (9th Cir. 1979). The notes in the instant ease, however, are more than surveillance notes. They represent a factual account of drug transactions made contemporaneously by a party to the transactions. We hold that these notes are statements within the Jencks Act, at least at the time they were orally conveyed to Agent Allen. See United States v. Carrasco, 537 F.2d 372 (9th Cir. 1976).
The Government contends, however, that the notes do not qualify under the facts of this case because they were only rough, cryptic writings which Schafer neither signed nor otherwise adopted, as required by subsection (e)(1) of the Act. The notes may be rough and somewhat cryptic, but they are relevant to the identification of the appellant, a crucial issue in this case.5
We are likewise satisfied that Schafer’s notes, albeit not signed, were adopted by him within the meaning of the Act. The question of adoption arises more frequently in connection with notes taken by a Government agent while interviewing a witness. If the witness in such a case neither signed nor adopted the notes, they need not be produced at trial, as a witness generally may not be impeached on somebody else’s statement. The notes in the instant case were those of the witness himself who adopted them when he orally related them to Agent Allen. See United States v. Carrasco, supra.6
The Jencks Act provides further that the statement must be “in the possession of the United States.” (Subsection (a).) Although Schafer was not detailed as a criminal investigator, he was working for the Government and was not merely a witness. He had operated as an undercover informant for the military police for seven months before he purchased the marihuana from the appellant. These activities made him an agent of the Government and part of its prosecutorial arm. Accordingly, his statement was “in the possession of the United States,” as required.7
Having so concluded, we must determine whether sanctions should be imposed for the failure to preserve. The difficulty with the loss or destruction of statements, unlike the failure to produce, is that a court generally cannot know with any degree of precision the contents of the statement and its value to the accused. See, United States v. Miranda, 526 F.2d 1319 (2d Cir. 1975). For this reason, where “destruction is deliberate, sanctions will normally follow, irrespective of the perpetrator’s motivation, unless the Government can bear the heavy burden of demonstrating that no prejudice resulted to the defendant.” United States v. Bufalino, 576 F.2d 446, 449 (2d Cir. 1978) (footnote deleted).8
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION OF THE COURT
O’DONNELL, Judge:
At the appellant’s trial, Specialist Four Dale P. Schafer, a confidential informant for the local criminal investigators, testified that he purchased marihuana from the appellant on 19 and 21 February 1980. After each transaction, Schafer made brief notes which in sum related to the time and location of the sale, the name of the appellant, and the number of his license plate. The informant orally related this information to Agent Leslie D. Allen, the criminal investí[1012] gator to whom he was detailed.1 Allen made notes which he later incorporated into an official report. Sometime later, Schafer destroyed his notebook as he feared that his undercover role would be discovered by the people with whom he was living.
After the informant testified, the defense moved for production of Schafer’s notes pursuant to the Jencks Act, 18 U.S.C. § 3500.2 The judge first granted the motion. After Schafer clarified the question of whether he gave the notes to Allen and testified that he had destroyed his notebook, the defense moved to strike his testimony. The judge denied the motion on the grounds that the notes were never in the possession of the Government; that Schafer was not an agent of the Government; that the defense was aware of the discrepancies in the notes and was able to cross-examine Schafer on them; and that the information was contained in the official report prepared by Agent Allen. The appellant was convicted of wrongful possession, transfer and sale of marihuana on 19 February and wrongful sale and transfer of marihuana on 21 February. He was sentenced to a bad-conduct discharge, confinement at hard labor for two months, and reduction to the lowest enlisted grade. The convening authority approved the sentence.3
Initially, we must determine whether Schafer’s notes qualified as a statement within the meaning of the Jencks Act. For our purposes, a “statement” is defined in the Act as “a written statement made by [a Government witness] and signed or otherwise adopted by him.” (Section (e)(1).) Although there are cases which have questioned the applicability of the Jencks Act to agents’ notes, particularly when the substance of the notes has been incorporated into an official report,4 we believe the weight of authority today is to the contrary. See, e.g., United States v. Harrison, 524 F.2d 421 (DC Cir. 1975); United States v. Johnson, 521 F.2d 1318 (9th Cir. 1975), and cases cited therein. Agents’ notes are not limited to those made during witness interviews but extend as well to notes relating to other aspects of an investigation made by investigators and undercover agents. See, Lewis v. United States, 340 F.2d 678, 682 (8th Cir. 1965); Holmes v. United States, 271 F.2d 635 (4th Cir. 1959); United States v. Dixon, 8 M.J. 149 (C.M.A.1979); United States v. Albo, 22 U.S.C.M.A. 30, 46 C.M.R. 30 (1972). There is some [1013] question whether surveillance notes fall within the Act. See, United States v. Bernard, 623 F.2d 551 (9th Cir. 1979). The notes in the instant ease, however, are more than surveillance notes. They represent a factual account of drug transactions made contemporaneously by a party to the transactions. We hold that these notes are statements within the Jencks Act, at least at the time they were orally conveyed to Agent Allen. See United States v. Carrasco, 537 F.2d 372 (9th Cir. 1976).
The Government contends, however, that the notes do not qualify under the facts of this case because they were only rough, cryptic writings which Schafer neither signed nor otherwise adopted, as required by subsection (e)(1) of the Act. The notes may be rough and somewhat cryptic, but they are relevant to the identification of the appellant, a crucial issue in this case.5
We are likewise satisfied that Schafer’s notes, albeit not signed, were adopted by him within the meaning of the Act. The question of adoption arises more frequently in connection with notes taken by a Government agent while interviewing a witness. If the witness in such a case neither signed nor adopted the notes, they need not be produced at trial, as a witness generally may not be impeached on somebody else’s statement. The notes in the instant case were those of the witness himself who adopted them when he orally related them to Agent Allen. See United States v. Carrasco, supra.6
The Jencks Act provides further that the statement must be “in the possession of the United States.” (Subsection (a).) Although Schafer was not detailed as a criminal investigator, he was working for the Government and was not merely a witness. He had operated as an undercover informant for the military police for seven months before he purchased the marihuana from the appellant. These activities made him an agent of the Government and part of its prosecutorial arm. Accordingly, his statement was “in the possession of the United States,” as required.7
Having so concluded, we must determine whether sanctions should be imposed for the failure to preserve. The difficulty with the loss or destruction of statements, unlike the failure to produce, is that a court generally cannot know with any degree of precision the contents of the statement and its value to the accused. See, United States v. Miranda, 526 F.2d 1319 (2d Cir. 1975). For this reason, where “destruction is deliberate, sanctions will normally follow, irrespective of the perpetrator’s motivation, unless the Government can bear the heavy burden of demonstrating that no prejudice resulted to the defendant.” United States v. Bufalino, 576 F.2d 446, 449 (2d Cir. 1978) (footnote deleted).8
[1014] In determining whether sanctions should be imposed in this case, we believe that the balancing test adopted by the Court in United States v. Bryant, 439 F.2d 642, 653 (D.C.Cir.1971), provides the fairest approach to the problem. In that case, the Court, in returning the case to the lower court directed:
On remand here the District Court should weigh the degree of negligence or bad faith involved, the importance of the evidence lost, and the evidence of guilt adduced at trial in order to come to a determination that will serve the ends of justice.9
On balance, we are satisfied that the appellant was not harmed by the failure of the Government to preserve the informant’s notes. The destruction, albeit intentional, was accomplished by a part-time informant and not by a regular law-enforcement official and was not done to “conceal impeaching or exculpatory evidence” from the defense. United States v. Carrasco, 537 F.2d at 376. Schafer’s motive in destroying the notes — personal safety — from his point of view was eminently reasonable.
Moreover, we are satisfied that even if preserved the notes would have availed the appellant but little. They did not go into any detail concerning the transactions but, as indicated above, related only to the name of the appellant, the time and place of the sales, and the license number of the appellant’s van. The informant was able to identify the appellant at trial as the person who sold the marihuana to him. True, the notes provided some impeachment value to the appellant because of the inaccuracies concerning the name of the appellant and the name of the state issuing the license plate. Schafer, however, in his testimony admitted the discrepancies and satisfactorily explained the reason for the mistakes. All in all, the discrepancies were only minimally consequential.
In concluding there was no prejudice, we have not overlooked the Court of Military Appeals decision in United States v. Jarrie, 5 M.J. 193 (C.M.A.1978). In that case, the Court held that because the statement was destroyed, it could not invoke the harmless-error rule, presumably in part because of its inability to determine the contents of the statement. The Court distinguished the non-production of a statement where prejudice could be tested by examining the withheld document. See, United States v. Dixon, 8 M.J. 149 (CMA 1979). Cf. United States v. Albo, supra. See also, United States v. Patterson, 10 M.J. 599 (A.F.C.M.R.1980), and United States v. Scott, 6 M.J. 547 (A.F.C.M.R.1978).
In our view Jarrie may be differentiated. Under the facts peculiar to this case, we are able to determine to our satisfaction the contents of Schafer’s notes. Initially, we conclude that Schafer was a credible witness in detailing the substance of his notes. He was able to describe them accurately, to include the discrepancies previously noted, as the notes were concise and fragmentary. This is contrasted with Jarrie which involved notes made by an agent based on an informant’s oral statement covering a drug transaction. It is apparent that the agent’s notes in that case were more detailed than Schafer’s brief highlights of the transaction. Moreover, Jarrie involves due process considerations, as the agent in that case, in making his official report, deleted certain items from the notes, including the names of two eyewitnesses. Patterson and Scott, which followed Jarrie, likewise involved lengthy statements (Article 32 tapes and statements). But see, United States v. Kilmon, 10 M.J. 543 (N.C.M.R.1980). Cf. United States v. Thomas, 7 M.J. 655 (A.C.M.R.1979), affirmed 11 M.J. 135 (C.M.A.1981).
Nothwithstanding the inconsistencies in Schafer’s testimony as well as other evi[1015] deuce adversely affecting his credibility, we are satisfied, considering the record as a whole, that he was a credible witness. Additionally, we are convinced beyond a reasonable doubt that the evidence supports the conviction.
The findings of guilty and the sentence are AFFIRMED.
Senior Judge CARNE concurs.