United States v. Duran

884 F. Supp. 570, 1995 U.S. Dist. LEXIS 5220, 1995 WL 235713
District Court, District of Columbia·Decided March 20, 1995·No. Crim. No. 94-447 (CRR)·Published·Cited by 3 cases

Opinion

MEMORANDUM OPINION

CHARLES R. RICHEY, District Judge.

INTRODUCTION

Before the Court are the Defendant’s Motion to Exclude Testimony of Government Witness and to Dismiss or Sever Count Four for Jencks Act Violations, along with the Government’s Opposition thereto. The Court held an evidentiary hearing on said Motion on March 17, 1995, and issued an Order that day denying the same. The Order also directed counsel for both parties to file a pleading regarding whether inclusion of a limiting instruction to the jury regarding the destruction of documents is appropriate, and required counsel to submit such an instruction to the Court. This Memorandum Opinion shall set forth the Court’s reasons for its ruling.

[571]*571In his Motion, the Defendant claims that certain Jencks Act material1 was destroyed in bad faith by Officer Harry Tejeda of the Secret Service, whom the Government intends to call as a witness in its case-in-chief. Officer Tejeda is also the alleged victim of forcible assault on an officer of the United States,2 with which the Defendant is charged in Count four of the Superseding Indictment. Moreover, the Defendant asserts that an Officer Charles Wilson, also of the Secret Service, destroyed other Jencks material and that, though Officer Wilson is not on the Government’s witness list, his actions inform the Defendant’s claim that Officer Tejeda’s destruction of a certain document was done in bad faith. Finally, the Defendant argues that a proper remedy for these alleged Jencks Act violations is exclusion of any testimony by Officer Tejeda and dismissal of the count charging assault upon him. In the alternative, the Defendant asserts that severance of Count four is a proper, though less desirable, remedy.

In Opposition, the Government argues that, although it would have been better practice to retain the document in question, there is no evidence that Officer Tejeda acted in bad faith. In addition, the Government asserts that sanctions are inappropriate, as the missing handwritten draft did not contain material evidence that is not already available to the defense, and nothing precludes the defense from calling the officers involved to inquire about the incident and the contents of the missing document.

BACKGROUND

Officer Henry Tejeda, Lt. Tommy Taylor, Inspector Pendergast and Officer Timothy Schmidt, all of the United States Secret Service Uniformed Division, testified at the March 17, 1995 hearing.

Officer Henry Tejeda was on duty at the White House on October 29, 1994, and responded to the shooting. On November 9, 1994, Officer Tejeda prepared a handwritten summary pertaining to his actions while stationed at the White House on October 29, 1994. Officer Tejeda submitted this summary to Lt. Scott Ferguson for review, and was advised that it contained too many references to “specifics.” Officer Tejeda then discarded this handwritten statement.

Officer Tejeda testified that this handwritten summary was not a complete report, but merely a draft. Moreover, the report of the October 29, 1995 shooting was the first report he had prepared as a Secret Service Officer, a position he had held for approximately three months at the time of the shooting. Previously, Officer Tejeda had served in the Marines and worked as a security guard. At no point in his prior employment had Officer Tejeda completed such an incident report.

Officer Tejeda drafted another handwritten summary for his supervisor’s review. Two typed drafts of this statement were prepared and corrected by Lt. Tommy Taylor. A final typed statement was shown to Officer Tejeda. The drafts were typed by Officer Schmidt. Lt. Taylor testified that he had advised Officer Tejeda that it would be in his best interests to delete a reference in his second handwritten statement which could subject Officer Tejeda to discipline for abandoning his post while, in Lt. Taylor’s view, Officer Tejeda had not abandoned his post. Accordingly, the final typewritten version of the statement did not contain any reference to Officer Tejeda’s leaving his post. Officer Tejeda signed this statement and testified that, to the best of his knowledge, it was accurate and correct.

In addition, Michael Pendergast, Inspector with the United States Secret Service Uniformed Division, testified that the Secret Service has no requirement that handwritten drafts of reports be retained. Rather, it is within the discretion of the individual officers to determine whether to keep such drafts.

Finally, counsel for the Government and counsel for the Defendant stipulated that Officer Harry Wilson, if called as a witness, would testify to the matters contained the report prepared by the Office of Inspection regarding an interview with Officer Wilson. Government’s Opposition at Exh. A, p. 5. [572]*572According to said report, Officer Wilson stated that significant changes were made to his report of the October 29, 1994 shooting, and that he signed the final statement under duress.

The Government turned over to the defense copies of all of the versions of both Officers’ reports as Jencks material, and has supplied the Defendant with the entire report of the Secret Service Inspection Division with respect to the incident as possible Brady material.

DISCUSSION

“[T]he Jencks Act does not contemplate automatic sanctions even when the material has been rendered completely unavailable through loss or destruction.” United States v. Rippy, 606 F.2d 1150, 1154 (D.C.Cir.1979). Rather, in determining whether sanctions should be imposed for an alleged Jencks Act violation, the trial court must “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.” United States v. Bryant, 439 F.2d 642, 653 (D.C.Cir.1971). Accord United States v. Lam Kwong-Wah, 924 F.2d 298, 310 (D.C.Cir.1991). “[T]he trial judge’s effort must be to see that the defendant has access to previous statements of a witness to the fullest extent possible____ Whether the testimony is stricken or barred in advance, however, is in the discretion of the trial judge if eliminating the witness’ testimony would restrict the search for truth rather than assist it in the instant and future cases.” United States v. Perry, 471 F.2d 1057, 1063 (D.C.Cir.1972).

Here, in the exercise of its discretion, the Court finds that ends of justice would best be served by allowing Officer Tejeda to testify, and by allowing the Government to go forward with Count Four of the Superseding Indictment charging the Defendant with assault against Officer Tejeda.

First, the Court 'finds that the obligations mandated by the Jencks Act have been satisfied in major part in this case, as the Defendant learned of the alleged Jencks Act violations because of the discovery made available to him' by the Government pursuant to that statute.

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United States v. Duran, 884 F. Supp. 570, 1995 U.S. Dist. LEXIS 5220, 1995 WL 235713 (D.D.C. 1995).

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