ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________

No. xxxxxxxx

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UNITED STATES OF AMERICA, Plaintiff-Appellee,

xxxxxxxxxxxxxxxxxxxxx, Defendant-Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________________________________________

REPLY BRIEF OF DEFENDANT-APPELLANT

xxxxxxxxxxxxxxxxxxx

_________________________________________________________________

A. J. Kramer

Federal Public Defender

Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

District Court

Cr. No. xxxxxxxxx

TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

ARGUMENT

The Brady Standard Applies To Evidence That Is Material To Whether The Search And Seizure Of The Defendant Was Justified 1

CERTIFICATE OF LENGTH 11

CERTIFICATE OF SERVICE 11

TABLE OF AUTHORITIES

Arizona v. Youngblood, 488 U.S. 51 (1988) 7

Brady v. Maryland, 373 U.S. 83 (1963) passim

Elkins v. United States, 364 U.S. 206 (1960) 10

Kimmelman v. Morrison, 477 U.S. 365 (1986) 2, 3

Mapp v. Ohio, 367 U.S. 643 (1961) 10

McCray v. Illinois, 386 U.S. 300 (1967) 6

Stone v. Powell, 428 U.S. 465 (1976) 2

Strickland v. Washington, 466 U.S.668 (1984) 5

United States v. Bagley, 473 U.S. 667 (1985) 4, 5, 9

United States v. Green, 670 F.2d 1148 (D.C. Cir. 1981) 4

United States v. Kelly, 707 F.2d 1460 (D.C. Cir.),

cert. denied, 464 U.S. 908 (1983) 8

United States v. Jenrette, 744 F.2d 817 (D.C. Cir. 1984),

cert. denied, 471 U.S. 1099 (1985) 7

United States v. Pollack, 534 F.2d 964 (D.C. Cir.),

cert. denied, 429 U.S. 924 (1976) 7, 8, 9

United States v. Raddatz, 447 U.S. 667 (1980) 6, 7

Weeks v. United States, 232 U.S. 383 (1914) 10

ARGUMENT

The Brady Standard Applies To Evidence That Is Material To Whether The Search And Seizure Of The Defendant Was Justified.

In his opening brief appellant argued that he was deprived of due process because the government unfairly undermined his ability to demonstrate that his seizure was unlawful, citing to Brady v. Maryland, 373 U.S. 83 (1963). The government's principal response to appellant's argument is its contention that due process demands far less when law enforcement officers destroy evidence that is material to a constitutional violation of the right to be free from unreasonable search and seizure than when the officers destroy evidence that is material to guilt or to punishment.

The government's position is incorrect for two reasons. First, when the government obtains a criminal conviction in a case in which there is a reasonable probability that the defendant would have prevailed on his Fourth Amendment motion to suppress -- had the police officers not destroyed the evidence of the Fourth Amendment violation -- the government unconstitutionally deprives the defendant of his liberty. Second, the principles and the language of Brady and its progeny are not limited only to guilt or punishment but incorporate all criminal proceedings.

The government's argument concerns the relationship between two constitutional rights: the right to due process provided by the Fifth Amendment and the right to be free from unreasonable search and seizure provided by the Fourth Amendment. The Due Process Clause, which provides that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law . . . ," does not lose its strength when the determination to be made is whether the defendant was unconstitutionally seized or searched.

The Supreme Court's decision in Kimmelman v. Morrison, 477 U.S. 365 (1986), regarding the intersection of the Fourth Amendment right to be free from unreasonable search and seizure and the Sixth Amendment right to effective assistance of counsel at trial, provides an apt analogy to the issue presented by the government's argument in this case. In Kimmelman, the defendant's trial counsel failed to file a timely motion to suppress physical evidence that had been seized from the defendant's home without a warrant. Id. at 368-369. The defendant claimed that the physical evidence would have been excluded on Fourth Amendment grounds had his attorney filed a timely suppression motion. Thus, the defendant alleged, he was deprived of effective assistance of counsel. The question before the Supreme Court was whether a claim of ineffective assistance of counsel may be heard on federal habeas review where the Sixth Amendment ineffectiveness claim is based on counsel's failure to litigate a Fourth Amendment claim below.⁽¹⁾

In that context, the Court observed that the Fourth Amendment is not a trial right, but rather a protection "against governmental intrusion into one's home and affairs [that] pertains to all citizens." Kimmelman, 477 U.S. at 374. On the other hand, the right to counsel is a trial right granted to criminal defendants to assure "the fairness, and thus the legitimacy, of our adversary process." Id. Nevertheless, the Court held that the Sixth Amendment right to competent counsel at trial also guarantees the right to competent handling of pre-trial Fourth Amendment litigation. Id. at 378-380. In so holding, the Court explicitly recognized that the Fourth Amendment issue that Kimmelman's attorney failed to litigate did not relate to the defendant's guilt or innocence, but nonetheless held that the right to trial counsel is not limited only to matters affecting the determination of actual guilt. In the Court's own words,

We also reject the suggestion that criminal defendants should not be allowed to vindicate through federal habeas review their right to effective assistance of counsel where counsel's primary error is failure to make a timely request for the exclusion of illegally seized evidence -- evidence which is "typically reliable and often the most probative information bearing on the guilt or innocence of the defendant." . . . The constitutional rights of criminal defendants are granted to the innocent and the guilty alike. Consequently, we decline to hold either that the guarantee of effective assistance of counsel belongs solely to the innocent or that it attaches only to matters affecting the determination of actual guilt.

Id. at 379-380 (emphasis added) (citations omitted). The Court concluded that a defendant who is convicted after his attorney incompetently fails to move to suppress damning physical evidence is unconstitutionally deprived of his liberty. Id. at 383.

The Fifth Amendment right to due process is no less precious than the right to counsel. Like the Sixth Amendment, the Fifth Amendment's Due Process Clause assures "the fairness, and thus the legitimacy, of our adversary process." Id. at 374. And, like the right to counsel, the right to due process of law is granted to the innocent and the guilty alike. Just as a defendant is unconstitutionally deprived of his liberty when his Fourth Amendment claim is compromised due to a Sixth Amendment violation, a defendant is unconstitutionally deprived of his liberty when his Fourth Amendment claim is compromised due to a Fifth Amendment due process violation. Thus, as with the constitutional guarantee of competent counsel, the constitutional guarantee that an accused shall not be deprived of liberty without due process of law should apply with equal force to criminal proceedings such as Fourth Amendment litigation. See United States v. Green, 670 F.2d 1148, 1154 (D.C. Cir. 1981) (". . . the suppression hearing is a critical stage of the prosecution which affects substantial rights of an accused person; the outcome of the hearing -- the suppression vel non of evidence -- may often determine the eventual outcome of conviction or acquittal.").

The Supreme Court's decisions in Brady v. Maryland, supra, and United States v. Bagley, 473 U.S. 667 (1985) support the view that the Brady due process standard extends to criminal proceedings such as motions to suppress evidence. Brady itself concerned not a due process violation at trial, but due process considerations post-trial, at sentencing. The suppressed evidence in Brady could have affected only Brady's sentence and not his conviction; the suppressed evidence had no bearing on whether Brady was guilty of the murder for which he was convicted. In Brady, the Court suggested 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.

Id. at 83. This language should be read as inclusive rather than exclusive. Indeed, subsequent to the Court's decision in Brady, the Court further defined the due process standard in Bagley, supra. There, the Court did not limit the Brady due process standard to evidence material at trial or at a post-trial sentencing hearing, but said that

[t]he evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have different.

Id. at 682 (emphasis added).⁽²⁾

In support of its contention that a lesser standard of due process applies when government agents destroy exculpatory evidence that is material to whether the seizure of the defendant was legal, the government attempts to draw an analogy to a case involving the informant's privilege, McCray v. Illinois, 386 U.S. 300 (1967), and to a case involving the use of magistrates to make factual findings concerning Fourth Amendment issues, United States v. Raddatz, 447 U.S. 667 (1980). The analogies are faulty.

In McCray v. Illinois the Supreme Court upheld the government's assertion of the informant's privilege at a preliminary hearing. In so doing, the Court stated the obvious: a defendant is not entitled to more due process protections at a preliminary hearing than he would be entitled at a trial. See id. at 312 (the Court "has consistently declined to hold that an informer's identity need always be disclosed in a federal criminal trial, let alone in a preliminary hearing to determine probable cause for an arrest or search"). In addition, the government's use of McCray ignores the sound policy reasons supporting the privilege. The informant's privilege encourages the vital flow of information about criminal activities. Id. at 1061. Of course, no such policy reasons can support a rule permitting law enforcement officers to destroy evidence that is material to whether the officers illegally seized a person.

Likewise, the government's citation to United States v. Raddatz, supra, is unavailing in this context. In Raddatz, the Supreme Court addressed the constitutionality of a statute, the Federal Magistrates Act, permitting federal district courts to refer suppression hearings to a magistrate and to then rely on the magistrate's proposed factual findings and recommendations in making the final suppression determination. Under the Federal Magistrates Act a defendant had no fewer rights at a suppression hearing than he had before a judge; the difference is merely in who makes the factual findings. Thus, the Magistrates Acts does not devalue the Fourth Amendment. Raddatz does no more than recognize the unremarkable proposition that the procedural standards applicable to trials are sometimes different than those applicable at pre-trial hearings. As the Court noted, "[a]t a suppression hearing, the court may rely on hearsay and other evidence, even though that evidence would not be admissible at trial." Id. at 679.

The government's parenthetical use of United States v. Jenrette, 744 F.2d 817 (D.C. Cir. 1984), cert. denied, 471 U.S. 1099 (1985), and United States v. Pollack, 534 F.2d 964 (D.C. Cir.), cert. denied, 429 U.S. 924 (1976), to support its contention that the standards set forth in Brady, and even in Arizona v. Youngblood, 488 U.S. 51 (1988), do not apply to the destruction of the photograph in this case is also unavailing.

In Jenrette, the defendant complained, inter alia, that the investigation of him was fundamentally unfair and "was so outrageous that principles of due process bar his conviction." Id. at 823. This Court disagreed, holding that no due process violation existed because the FBI's conduct toward the defendant did not involve "the infliction of pain or physical or psychological coercion" id. at 824, quoting United States v. Kelly, 707 F.2d 1460, 1477 (D.C. Cir.), cert. denied, 464 U.S. 1460 (1983), toward the defendant. The defendant specifically alleged that the federal operatives' failure to record all of the telephone conversations with the defendant and with his associate violated the principles of Brady. Id. at 826. The defendant did not allege, however, that any statements in the unrecorded telephone conversations were exculpatory. This Court held that the defendant's complaint concerning the unrecorded conversations related only to the fundamental fairness of the investigation, not the trial. The Court concluded that the undisclosed evidence "could not have affected Jenrette's conviction" and "thus does not meet the materiality requirement of Brady." Id. In contrast, the destroyed photograph certainly affected Mr. Palomino-xxxxx' conviction. Had the photograph been available there is, at the very least, a reasonable probability that the physical evidence against Mr. Palomino-xxxxx would have been excluded from the trial.

Also distinguishable is United States v. Pollack, 534 F.2d 964 (D.C. Cir. 1976), where the defendant alleged a Brady violation based on the government's failure to disclose information that a government witness' indictment in an unrelated case had been dismissed within a day of the witness' appearance before the grand jury investigating the defendant, information that the witness had previously been named as an unindicted co-conspirator in a fraud case, and information that a second government witness had previously been arrested on an unrelated charge and granted immunity, which was later withdrawn, in exchange for his cooperation. Id. at 974. The Court reasoned that because the undisclosed information did not bear on whether the defendant had committed the offense, but merely served to impeach the witnesses, it did not fall within the parameters of Brady. Id. at 975. In addition, the Court concluded that some of the information was cumulative, had actually been disclosed, or did not serve to impeach the witness. Id.

The decision in Pollack does not support the government's contention that the standards set forth in Brady do not apply to the destruction of the photograph in this case. First, the reasoning of Pollack was expressly rejected by the Supreme Court in United States v. Bagley, 473 U.S. 667 (1985), in which the Court held that impeachment evidence falls within the Brady rule. Id. at 676. In addition, the destroyed photograph at least would have impeached the officers' assertions that the Mr. Palomino-xxxxx resembled the person depicted in the photograph, but was not mere impeachment evidence. The photograph was direct evidence that would have conclusively demonstrated whether or not Mr. Palomino-xxxxx resembled the person depicted in the photograph.

Finally, the evidence that was destroyed in this case was relevant to a constitutional promise that deserves protection. As appellant pointed out in his opening brief, the Fourth Amendment would be in serious peril if law enforcement officers could, without sanction, suppress or destroy evidence material to their own misconduct.

The exclusionary rule was designed to effectuate the Fourth Amendment rights of all citizens to be free from unreasonable searches and seizures. The rule's primary "purpose is to deter -- to compel respect for the constitutional guaranty in the only effectively available way -- by removing the incentive to disregard it." Elkins v. United States, 364 U.S. 206, 217 (1960). Without the exclusionary rule, "the protection of the Fourth Amendment declaring . . . [the] right to be secure against . . . [illegal] searches and seizures is of no value, and, . . . might as well be stricken from the Constitution." Mapp v. Ohio, 367 U.S. 643, 648 (1961), quoting Weeks v. United States, 232 U.S. 383, 393 (1914).

The exclusionary rule -- and thus, the Fourth Amendment itself -- could easily be circumvented if law enforcement officers could suppress or destroy evidence tending to prove a Fourth Amendment violation. Surely the principles embodied in the Due Process Clause entitle a defendant to the preservation and disclosure of evidence that would prove that law enforcement officers illegally seized him.

Since Mr. Palomino-xxxxx' conviction rested on evidence that should have been suppressed because he was deprived of due process through the government's destruction of favorable evidence, and because the evidence was obtained by the police through an unlawful search and seizure, his conviction must be reversed and the indictment ordered dismissed.

Respectfully submitted,

A. J. Kramer

Federal Public Defender

_______________________

Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W.,

Suite 550

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF LENGTH

I hereby certify that the foregoing reply brief for appellant, xxxxxxxxxx, does not exceed the number of words permitted by Rule 28(d) of the General Rules of this Court.

___________________________

Sandra Roland

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that two copies of the foregoing Brief and Addendum for Appellant, and one copy of the Appendix for Appellant, have been delivered by first class mail to the United States Attorney's Office, Stacy Sovereign, Esq., Appellate Division, 555 Fourth Street, N.W., Washington, D.C. 20001, this 10th day of January, 1994.

____________________________

Sandra G. Roland

1. The Supreme Court had previously held that federal habeas review of alleged violations of the Fourth Amendment was precluded where the Fourth Amendment claim had been fully and fairly litigated in the state court. Stone v. Powell, 428 U.S. 465 (1976).

2. The analogy to Kimmelman is further supported by the fact that the due process standard enunciated in Bagley is borrowed directly from the effective assistance of counsel standard established by Strickland v. Washington, 466 U.S. 668 (1984). Under the Strickland standard, the defendant must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.