United States v. Thomas

Opinion

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

____________

No. 91-8583 No. 91-8610 No. 94-50789 ____________

UNITED STATES OF AMERICA,

Appellee,

versus

ROY LEE HODGKISS,

Appellant.

Appeal from the United States District Court For the Western District of Texas (W-90-CR-121-1)

September 16, 1996

Before WIENER, EMILIO M. GARZA, Circuit Judges, and LITTLE,* District Judge.

PER CURIAM:**

In United States v. Thomas, 12 F.3d 1350 (5th Cir.), cert.

denied, __ U.S. __, 114 S. Ct. 1861, __ L. Ed. 2d (1994), we

affirmed the convictions and sentences of Roy Lee Hodgkiss and his

* District Judge of the Western District of Louisiana, sitting by designation.

** Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. co-defendants, but we remanded “to permit the district court to

determine in the first instance whether the notes described herein

constitute either Jencks Act or Brady material.” 12 F.3d at 1373.

The Government submitted debriefing notes written by the

investigating agents as to twenty-two individuals, some of whom

were plea bargaining co-defendants. Of this material, the district

court, believing that it was only directed to examine the “rough

notes,” reviewed only a single set of handwritten notes and

concluded that they constituted neither Jencks Act nor Brady

material. Pursuant to an order by the district court, the

Government subsequently destroyed all the trial exhibits and

evidence utilized in the case, including the original files

pertaining to the twenty-two individuals. Copies of the files,

however, were retained, and this Court issued an order remanding

the case once again to the district court to allow it to review all

of the notes submitted by the Government. The district court

issued an order stating that it had reviewed all of the submitted

documents and found no Jencks Act or Brady material.1 Hodgkiss now

challenges the district court’s order as not containing

sufficiently detailed findings. Hodgkiss also contends that we

should remand a third time because the Government did not provide

the district court with all of its debriefing materials for the

1 The documents were transmitted under seal to this Court for purposes of review on appeal.

-2- plea bargaining defendants, contrary to this Court’s instructions.

Finally, Hodgkiss requests that we remand in order to allow the

district court to determine whether the Government destroyed some

of its debriefing material.

In Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed.

2d 215 (1963), the Supreme Court held that “the suppression by the

prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt

or to punishment, irrespective of the good faith or bad faith of

the prosecution.” 373 U.S. at 87, 83 S. Ct. at 1196-97. The Brady

rule has been extended to cover not only exculpatory evidence, but

also evidence that might be valuable in impeaching government

witnesses. United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct.

3375, 3380, 87 L. Ed. 2d 481 (1985). Furthermore, the duty to

produce such material exists even if the defense fails to make a

specific request, or any request at all. United States v. Agurs,

427 U.S. 97, 107, 111-12, 96 S. Ct. 2392, 2399, 2401, 49 L. Ed. 2d

342 (1976).2

The determination we must make at this stage in the

proceedings is whether the district court should be required to

hold an additional in camera inspection of the notes the Government

2 The Agurs Court did note, however, that whether the request was specific or not may affect the determination of whether the nondisclosure, when it does come to light, was “material” or not. 427 U.S. at 106-07, 110-111, 96 S. Ct. at 2399, 2401-02; see also Pennsylvania v. Ritchie, 480 U.S. 39, 58 n.15, 107 S. Ct. 989, 1002 n.15, 94 L. Ed. 2d 40 (1987) (same).

-3- has already submitted. We think not. While the district court's

findings on the Brady issue were rather cursory, we believe that

they were sufficiently detailed to enable us to review its

decision. See Storer Communications, Inc. v. Presser, 828 F.2d

330, 335 (6th Cir. 1987) (holding that, on remand, district court

judge should examine materials in question and "make the required

Brady determination"); U.S. v. Lehman, 756 F.2d 725, 730 (9th Cir.

1985) (holding that if, on remand, the district court found no

Brady violation, "it should transmit written findings to this court

for its further consideration"). This is especially true given

that Hodgkiss's requests for Brady and Jencks Act material were

general ones, and rather speculative. The district court could

hardly have been expected to provided more detailed findings on

these requests than it did. Indeed, our independent examination of

the debriefing notes has not disclosed any Brady material. We

therefore affirm the district court’s findings on this point.3

For similar reasons, we conclude that the district court’s

findings that the debriefing notes do not contain any Jencks Act

material should also be affirmed. The Jencks Act requires the

production of written statements by a government witness where the

written “statement” is within the scope of the direct examination,

3 We also decline to remand to have the district court conduct an in camera inspection of any debriefing notes the Government may allegedly still have in its possession. There is no proof that the Government failed to provide the district court with all of the debriefing notes at issue.

-4- and where the statement is either a substantially verbatim recital

of an oral statement by the witness, or a written statement signed

or otherwise adopted or approved by the witness. 18 U.S.C. § 3500;

United States v. Pierce, 893 F.2d 669, 675 (5th Cir. 1990), cert.

denied, 506 U.S. 1007, 113 S. Ct. 621, 121 L. Ed. 2d 554 (1992).

In Thomas, we determined that the debriefing notes were not

discoverable under the Jencks Act as “statements” of the plea

bargaining defendants because defendants had failed to produce at

trial any evidence, through cross-examination or otherwise, that

any of the Jencks Act conditions were met. 12 F.2d at 1364. We

declined to address, however, whether the debriefing notes

constituted Jencks Act statements of the testifying agents and

instructed the district court to address this issue on remand. Id.

at 1365 n.25; see United States v. Welch, 810 F.2d 485, 490 (5th

Cir.) (noting that government agent had done more than simply

conduct witness interviews after the fact, and holding that an

agent’s investigation report may constitute a Jencks Act statement

of the agent), cert. denied, 484 U.S. 955, 108 S. Ct. 350, 98 L.

Ed. 2d 376 (1987). In light of the circumstances of this case, we

conclude that the district court’s findings are adequate and that

remand is not required. See Goldberg v. United States, 425 U.S.

94, 111 (holding that, on remand, district court should make a

Jencks Act inquiry into certain materials and then "supplement the

record with findings"); Campbell v. United States, 365 U.S. 85, 99

-5- (same).4

Finally, we conclude that there is no need to remand to the

district court for a determination of whether the Government has

destroyed evidence that may be discoverable under Brady or the

Jencks Act. Although the originals were destroyed, copies of the

debriefing statements as to twenty-two individuals first submitted

to the district court were retained and resubmitted pursuant to our

second remand order, as is evident from a comparison with the

district court’s first order. There is simply no evidence to

indicate that the Government destroyed any Jencks Act or Brady

material, or that the Government acted in bad faith when it

requested permission from the district court to destroy the trial

exhibits and documents in this case. See, e.g., United States v.

Cole, 634 F.2d 866, 868 (5th Cir.) (no violation of Jencks Act

where agent’s notes destroyed in good faith), cert. denied, 452

U.S. 918, 101 S. Ct. 3055, 69 L. Ed. 2d 422 (1981); United States

v. Martin, 565 F.2d 362, 363-64 (5th Cir. 1978) (holding Jencks Act

and Brady were not violated where agent’s notes were destroyed in

good faith and there was no independent showing that they might

4 On appeal, Hodgkiss contends that the Government failed to produce the debriefing materials for one of the plea bargaining defendants who testified for the Government, Mr. Robert Bruce Thomas. As noted above, we already determined in Thomas that none the notes were discoverable under the Jencks Act as statements of the plea bargaining defendants. 12 F.3d at 1364. Moreover, Hodgkiss’s claim that a debriefing statement exists for Thomas is entirely speculative. On cross-examination, Thomas stated that he did not make any statement in writing and that he did not observe any of the agents taking notes during his debriefing by the government. Accordingly, we find that remand as to this alleged debriefing statement is also not necessary.

-6- contain material evidence). Accordingly, because this allegation

is merely speculative in nature, we find that remand is not

required.

For the foregoing reasons, we AFFIRM the district court’s

order in No. 91-8610 and No. 94-50789. Accordingly, we also AFFIRM

the convictions and sentences in No. 91-8583.

-7-