MOTION FOR GOVERNMENT AGENTS AND

ATTORNEYS TO RETAIN ROUGH NOTES AND WRITINGS

Defendant moves for an order requiring all government law enforcement officers and agents and government attorneys who investigated the charges contained in this case to retain and preserve all rough notes and writings which are arguably discoverable by defendant or subject to disclosure under Fed. R. Crim. P. 16, 18 U.S.C. §3500 (Jencks Act), and the principles enounced in Brady v. Maryland, 373 U.S. 83, 87 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and which may be utilized by the defendant for impeachment purposes, which notes and writings were made as a part of their investigations, notwithstanding that the contents of said notes or writings may have been or could be incorporated in official records or memoranda.

WHEREFORE, the Defendant moves for an Order granting this motion.

MEMORANDUM OF LAW

Not only may the rough notes and writings come within the purview of 18 U.S.C. §3500 (Jencks Act), they may be discoverable and subject to disclosure under Brady v. Maryland, supra, as exculpatory or impeachment evidence. See United States v. Harrison, 524 F.2d 421 (D.C. Cir. 1975). Therefore, retention and preservation is required to allow the Court to make any determination as to disclosure. United States v. Harris, 543 F.2d 1247 (9th Cir. 1976).

The danger inherent in permitting destruction of original notes has been underscored by the Ninth Circuit. In United States v. Carrasco, 537 F.2d 372 (9th Cir. 1976), the court noted at 377 that: "[i]t may be that the agent . . . who adapts a final report from preliminary memoranda will tailor his observations to fit his conclusions."

The Fifth Circuit has held that the good faith destruction of rough notes by an agent according to customary agency procedure eliminates any violation of the Jencks Act when the interview report prepared therefrom is given to defendant. United States v. Martin, 565 F.2d 362 (5th Cir. 1978).

From this date forward, defendant suggests that destruction of any such rough notes cannot be in good faith since the government and its agents are on notice of defendant's request. Likewise, the possibility that these rough notes may, in their original form, prove exculpatory or otherwise favorable to the defendant and thus subject to disclosure requires that any destruction henceforth is in bad faith.

DATED this day of October, 1995.

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