UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
v. : Cr. Case No.: xx-264 (JLG)
:
xxxxxxxxxxxxxxxxxxx :
MOTION FOR NEW TRIAL AND INCORPORATED MEMORANDUM
OF SUPPORTING POINTS
xxxxxxxxxxx, through undersigned counsel and pursuant to Federal Rule of Criminal Procedure 33, respectfully moves this Honorable Court for a new trial on the grounds that the government's loss of evidence violated his rights under United States v. Bryant, 439 F.2d 632 (D.C. Cir. 1971), Federal Rule of Criminal Procedure 16, and the Constitution of the United States.(1) A hearing on this motion is respectfully requested.
As grounds for this motion, Mr. xxxxxxx relies upon the following points and authorities, any which may appear in supplemental pleadings which he reserves the right to file, and at the requested hearing on this motion.
FACTUAL AND PROCEDURAL BACKGROUND
1. On December 15, 1994, Mr. xxxxxxx was convicted after a jury trial of possession with the intent to distribute over fifty grams of a mixture and substance containing cocaine base. The trial had commenced on December 12, 1994 and the jury began its deliberations on December 13, 1994. Tr. 223.(2) On the third day of their deliberations, the jury returned a guilty verdict against Mr. xxxxxxx, only shortly after returning a note suggesting that they were unable to reach a unanimous verdict. As a result of his conviction, absent application of 18 U.S.C. §3553(f) and USSG 5C1.2, Mr. xxxxxxx is facing at least ten years in a federal prison.
2. The government's evidence against Mr. xxxxxxx consisted of testimony of law enforcement agents that on June 13, 1994, they seized a jacket from a tray table on an Amtrak train and that the tray table was in front of the seat where Mr. xxxxxxx was seated. Tr. 27-38, 64. Inside the jacket were drugs which formed the basis for the indictment in this case. Tr. 65-69, 83. According to the police officers Mr. xxxxxxx made an unrecorded oral statement admitting that the jacket in which the drugs were found was his.(3) Tr. 64, 74-76, 82, 89.
3. There was no fingerprint evidence linking Mr. xxxxxxx to the jacket or the drugs, and there were no items of identification nor any photographs to link the jacket to Mr. xxxxxxx. Tr. 50. Seated next to Mr. xxxxxxx on the train was another individual who told the police officers that his last name was "Dixon."(4) Tr. 28-31, 42, 45-47.
4. In contrast to the police officers, Mr. xxxxxxx testified that the jacket the police saw laying across the tray table in front of his seat was not his. Tr. 155. He testified that Mr. "Dixon" had put it there. Tr. 141-142, 157. On cross-examination Mr. xxxxxxx testified that he had a jacket and that it could be found in the luggage with which he had been travelling, Tr. 157-158, and which the police searched before seizing the jacket in which the drugs were recovered.
5. Government counsel, Assistant United States Attorney Douglas Klein, told undersigned counsel that the police had failed to take Mr. xxxxxxx's luggage into police custody and instead had left it on the train. As a result, Mr. xxxxxxx's luggage was not available to corroborate Mr. xxxxxxx's testimony on cross-examination that his jacket was not the one on the tray table that had drugs in it, but rather was in his luggage.
6. While the jury was deliberating, alternate juror Stanley Schwartz, Juror # 1339, stated to both government counsel and undersigned counsel that he would have wanted to know whether Mr. xxxxxxx's luggage contained his jacket.(5)
ARGUMENT
I. The Loss of The Luggage Violated United States v. Bryant
A. Legal Standard
In United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971), the Court of Appeals for the District of Columbia Circuit held that the negligent failure of the government, including its investigative agencies, to follow procedures to ensure against the loss of evidence, would warrant sanctions. 439 F.2d at 650-652.
In Mr. xxxxxxx's case the loss of his luggage, by failing to take it off the Amtrak train on which he was arrested, necessitates a new trial and sanctions against the government. Indeed, in Bryant, itself, the court recognized that "before a request for discovery has been made, the duty of disclosure is operative as a duty of preservation [; o]nly if evidence is carefully preserved during the early stages of investigation will disclosure be possible later." 439 F.2d at 651. In Mr. xxxxxxx's case, as reflected by the police reports, see Exhibit A (PD 163, Prosecution Report) (appended hereto), and the testimony of the government's witnesses at the trial, Tr. 29-30, 38, 63, the police searched his luggage before they arrested him and simply failed to take it off the train once they had placed him under arrest. Thus, the luggage continued on the train after Mr. xxxxxxx was taken into custody.
Metropolitan Police Department General Order 601.2, appended hereto as Exhibit B, requires that "all potentially discoverable material, including any such material which might prove favorable to an accused" be preserved by members of the Metropolitan Police Department. MPD Gen. Ord. 601.2(I)(A). "Potentially discoverable material" is defined in the General Order as, inter alia, "materials which reasonably may be expected to be relevant in a criminal judicial proceeding" with "[a]ny doubt as to whether a particular item may relevant and preservable ... be[ing] resolved in favor of preservation." MPD Gen. Ord. 601.2(I)(B)(6). In Mr. xxxxxxx's case, the failure of the police to take his luggage from the luggage rack above the seat where he had been riding abrogated the Metropolitan Police Department's regulations. Moreover, it compromised Mr. xxxxxxx's constitutional right to present a defense. See Washington v. Texas, 388 U.S. 14 (1967) (Sixth Amendment guarantees an accused the right to present a defense). In this case, the luggage was certainly material to the trial, and was made especially relevant by a question from the prosecutor on cross-examination of Mr. xxxxxxx regarding whether his jacket could be found in the very luggage the police failed to take off the train. Tr. 157-158.
B. Sanction For Abrogation of MPD General Order 601.2
In determining the appropriate sanction for the failure to preserve Mr. xxxxxxx's luggage the Court is required to consider the police department's degree of culpability, the circumstances of the destruction, the degree of prejudice to Mr. xxxxxxx, and the strength of the government's case. United States v. Gantt, 617 F.2d 831, 841 (D.C. Cir. 1980).
1. Degree of Culpability
With respect to the police department's degree of culpability, it is critical to recognize that even "a good faith loss of important evidence 'must not be allowed to swallow the discovery rules.'" United States v. Butler, 499 F.2d 1006, 1007-8 (D.C. Cir. 1974), quoting, Bryant, 439 F.2d at 651. The circumstances of the loss (and thereby destruction of evidence to Mr. xxxxxxx) reveal that the police were well aware of the relevance of the luggage because, before they arrested Mr. xxxxxxx, they had questioned him about whether he was travelling with any luggage and had then searched the luggage he identified as his.
2. Degree of Prejudice To Mr. xxxxxxx
The degree of prejudice to Mr. xxxxxxx was tremendous. The only way for him to have corroborated his testimony that the jacket in which the drugs were found was not his and that his jacket was in his luggage on the rack above his seat, was for the luggage to have been available for him to introduce into evidence. Due to the police's failure to preserve the luggage, Mr. xxxxxxx's ability to present his defense was impermissibly compromised.(6) The case came down to the credibility of Mr. xxxxxxx versus the credibility of the police officers. Mr. xxxxxxx testified that the jacket in which the police had found the drugs was not his, but was possessed by the person seated next to him in the aisle seat, who had identified himself to the police as "Dixon." Tr. 28-31, 42, 45-47. The police claimed that Mr. xxxxxxx had said that the jacket in which the drugs were found was his jacket. Tr. 64, 82. In short, the jury had to decide whether the police officers' testimony was credible beyond a reasonable doubt. Had the police collected Mr. xxxxxxx's luggage, there would have been corroboration for his testimony that the jacket containing the drugs was not his.
3. The Government's Case Was Not Strong
Finally, with respect to the last factor, the strength of the government's case, the
evidence against Mr. xxxxxxx was far from overwhelming. There was nothing linking Mr.
xxxxxxx to the jacket in which the drugs were discovered. Tr. 50. Moreover, all of Mr.
xxxxxxx's behavior with the police was consistent with an innocent person who had no
knowledge that there were drugs in the jacket. Tr. 50-53. There were no photographs or
identification documents in the jacket linking it to Mr. xxxxxxx, Tr. 50, and there was no
fingerprint evidence suggesting that Mr. xxxxxxx had possessed either the drugs or the
jacket. He cooperated with the police and answered their questions and was not evasive nor
did he try to flee. Tr. 50-53. There was no evidence, such as a tape recording or written
statement from Mr. xxxxxxx, Tr. 39-40, 74-76, 89, to corroborate the testimony of the
police that Mr. xxxxxxx had stated that the jacket in which the drugs were found was his
jacket. In a trial that took only a day and a half of testimony, the jury deliberated for
nearly three days. In short, Mr. xxxxxxx's ability to corroborate his testimony was vital
to the outcome of the case.
II. The Loss Of The Luggage Violated Rule 16
Federal Rule of Criminal Procedure 16(a)(1)(C) requires the government to provide the defense with access to tangible objects "which are within the possession, custody or control of the government, and which are material to the preparation of the defendant's defense ..." F.R.Cr.P. 16(a)(1)(C). This provision has been deemed to apply to both the government and its investigative agencies. United States v. Caldwell, 543 F.2d 1333, 1352-1353 (D.C. Cir. 1974), cert denied, 423 U.S. 1087 (1976); United States v. Bryant, 439 F.2d at 650. In this case because the police controlled the arrest scene on the Amtrak train and because they searched the luggage and then arrested Mr. xxxxxxx without taking the luggage off the train, it was effectively within their possession temporarily, and was within their control. See Note 6, supra.
To show that the luggage was material under Rule 16, Mr. xxxxxxx's burden is "'not a heavy'" one. United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993) (citations omitted). Mr. xxxxxxx need only show "a strong indication that [the evidence would] 'play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting in impeachment or rebuttal.'" Id. (emphasis supplied) quoting, United States v. Felt, 491 F.Supp. 179, 186 (D.D.C. 1979). See also United States v. Stevens, 985 F.2d 1175, 1180 (2d. Cir. 1993) ("Evidence that the government does not intend to use in its case in chief is material if it could be used to counter the government's case or to bolster a defense.") In this case, as the prosecutor's cross-examination of Mr. xxxxxxx made clear, the luggage was material because it would have corroborated his testimony that his jacket was in the bags the police left on the train.
Having determined that the luggage was material under Rule 16, the Court next must evaluate whether there was prejudice to Mr. xxxxxxx resulting from the non-production of the luggage. United States v. Martinez, 844 F.Supp. 975, 982 (S.D.N.Y. 1994). Even if the failure to produce the luggage was borne of inadvertence or negligence on the part of the police, in this case, a new trial is required because "there is a significant chance that the added item [here, the luggage the police left on the train] ... could have induced a reasonable doubt in the minds of enough jurors to avoid conviction." United States v. Petitio, 671 F.2d 68, 74 (2d Cir.) (citations omitted), cert. denied, 459 U.S. 824 (1982), cited in United States v. Maniktala, 934 F.2d 25, 29 (2d Cir. 1991) and United States v. Martinez, 844 F.Supp. at 983. In short, had that tangible evidence been available, it "would have made a difference." United States v. Maniktala, 934 F.2d at 29.
III. The Loss of The Luggage Violated The Due Process Clause
The two leading cases regarding the Due Process Clause(7) and the government's destruction or loss of evidence are California v. Trombetta, 467 U.S. 479 (1984) and Arizona v. Youngblood, 488 U.S. 51 (1988). United States v. Bohl, 25 F.3d 904, 909 (10th Cir. 1994). In Mr. xxxxxxx's case, the analysis set forth in Trombetta rather than that set forth in Youngblood applies.
In Bohl, the defendants were accused of defrauding the government by using steel that did not meet specifications in radar and radio transmission towers. The government destroyed the allegedly defective steel before the defendants had an opportunity to test it. The Tenth Circuit held that:
To invoke Trombetta, a defendant must demonstrate that the government destroyed
evidence possessing an "apparent" exculpatory value. Trombetta, 467 U.S.
at 489. However, to trigger the Youngblood test, all that need be shown is that the
government destroyed "potentially useful evidence. Youngblood, 488 U.S. at 58.
Bohl, 25 F.3d at 910.
Ultimately, the Bohl court held that because the steel did not have apparent exculpatory value, in that the steel would need to be tested to determine if it was exculpatory, Youngblood and not Trombetta applied. Bohl, 25 F.3d at 910.
In contrast to the steel in Bohl, no test was needed on Mr. xxxxxxx's jacket to
determine its exculpatory value. Mr. xxxxxxx's jacket, which he testified was in the
luggage that the police failed to collect, would have proven that the jacket in which the
drugs were found did not belong to Mr. xxxxxxx, thus exculpating him. Therefore, the Trombetta
standard is the proper standard.
A. Under Trombetta Mr. xxxxxxx's Due Process Rights Were Violated By The Failure To Retrieve His Luggage
Under Trombetta, the two-prong test to determine when the government violates a defendant's due process rights is: (1) whether the government failed to preserve evidence whose exculpatory significance was "apparent before" loss; and (2) whether the accused is unable, by other reasonable available means to "obtain comparable evidence." Trombetta, 467 U.S. at 489. Mr. xxxxxxx meets both of those prongs.
As to the first prong, it is clear that the exculpatory significance of the luggage was apparent before the loss. The police reports and the testimony of the government's witnesses at the trial demonstrated that the police questioned Mr. xxxxxxx about whether he was travelling with any luggage and then searched his luggage before they arrested him. Thus, the police were well aware that Mr. xxxxxxx's luggage was on the overheard rack above his seat. They simply failed to take it off the train once they had placed him under arrest and as a result, the luggage continued on the train after Mr. xxxxxxx was taken into custody.
Furthermore, both alternate juror Stanley Schwartz and the prosecutor at trial expressed an immediate interest in Mr. xxxxxxx's luggage. If, as Mr. xxxxxxx testified, his jacket had been in his luggage, it would have demonstrated that the jacket in which the drugs were found did not belong to Mr. xxxxxxx. No further investigation or examination would have been needed. The mere existence of Mr. xxxxxxx's jacket in the luggage, which the police had searched, without further testing, would have been exculpatory. Accordingly, Mr. xxxxxxx has meet the first prong of the Trombetta test.
As to the second prong of Trombetta, whether there was another means by which Mr. xxxxxxx could have obtained comparable evidence, absent the introduction into evidence of his luggage, there was no other way for Mr. xxxxxxx to corroborate his testimony that his jacket was in that luggage. With the failure to retrieve that luggage went the loss of the only evidence which could have established the veracity of Mr. xxxxxxx's testimony that the jacket containing the drugs was not his. Thus, Mr. xxxxxxx has met the second prong of the Trombetta test and should be granted a new trial.
B. Under Youngblood Mr. xxxxxxx's Dues Process Rights Were Violated By The Failure To Retrieve His Luggage
Even if this Court finds that the Youngblood standard applies to this case, Mr. xxxxxxx should still prevail. Mr. xxxxxxx has demonstrated that the failure to collect his luggage was in bad faith. As discussed, supra, the failure to remove his bags from the luggage rack of the train violated the Metropolitan Police Department's General Orders. Such failure to follow regulations has been recognized as sufficient to constitute bad faith. See United States v. Weiss, 566 F.Supp. 1452 (C.D. Calif. 1983) (dismissing indictment for institutional bad faith in failing to follow strictures and Internal Revenue Service Regulations). Moreover, because police compliance with departmental regulations constitutes evidence of good faith, see e.g. United States v. Heffington, 952 F.2d 275, 281 (9th Cir. 1991), failure to comply with police regulations, especially one so basic as the need to preserve evidence suggests bad faith. In this case, where the police were aware of the evidentiary value of the luggage based upon having questioned Mr. xxxxxxx about his luggage and subsequently searched it before they arrested him, there is no question that failing to take the luggage off the train constituted bad faith.
All of the police officers who testified at trial were experienced officers who had worked on numerous narcotics cases. Reasonable and experienced law enforcement agents would not violate a police department general order and leave potentially exculpatory evidence on a train in good faith. Thus, even under Youngblood, Mr. xxxxxxx has established that the police lost his luggage containing the exculpatory jacket in bad faith and thus violated his right to due process.
WHEREFORE for all the foregoing reasons, any one of which individually is sufficient to grant Mr. xxxxxxx's request for a new trial, and for any other reasons set forth in supplementary pleadings (which Mr. xxxxxxx reserves the right to file) and for any that may appear at a full hearing on this matter, Anthony xxxxxxx, through counsel, respectfully requests that this Motion be granted and that this Court grant him a new trial.
Dated: January 27, 1995
Respectfully submitted,
A. J. KRAMER
FEDERAL PUBLIC DEFENDER
Santha Sonenberg
Assistant Federal Public Defender
On Behalf of Anthony xxxxxxx
625 Indiana Avenue, N.W.
Suite 550
Washington, D.C. 20004
(202) 208-7500
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing Motion For New Trial and the Incorporated Memorandum of Supporting Points has been served by first-class postage pre-paid mail upon Jennifer Anderson, Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001 this 27th day of January, 1995.
Santha Sonenberg
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
v. : Cr. Case No.: 94-264 (JLG)
:
ANTHONY xxxxxxx :
O R D E R
This matter having come before the Court on a Motion For New Trial and the Incorporated Memorandum of Supporting Points, and good cause having been shown, it is this day of , 1995 HEREBY ORDERED that the Motion is granted and Mr. xxxxxxx is granted a new trial.
June L. Green
United States District Judge
Copies To:
Jennifer Anderson
Office of the United States Attorney
555 Fourth Street, N.W.
Washington, D.C. 20001
Santha Sonenberg
Office of the Federal Public Defender
625 Indiana Avenue, N.W.
Washington, D.C. 20004
1. A new trial has been recognized as an appropriate remedy for the loss of evidence by the government. United States v. Maynard, 476 F.2d 1170, 1178 (D.C. Cir. 1973). See also United States v. Petitio, 671 F.2d 68, 74 (2d Cir.) cert. denied, 459 U.S. 824 (1982). Cf. United States v. Wolfson, 413 F.2d 804, 808 (2d Cir. 1969); United States v. Martinez, 844 F.Supp. 975, 982 (S.D.N.Y. 1994) (acknowledging a new trial as a remedy for violation of the discovery rules).
2. "Tr." refers to the two-volume, 225-page official transcript of the trial proceedings on December 12 and 13, 1994 transcribed bey official court reporter Frank Rangus.
3. Detective Edward Hanson who was in the aisle as Mr. xxxxxxx was seartched testified that he never heard Mr. xxxxxxx say the jacket was his. Tr. 49.
4. Defense Exhibits 4, 5, 6 and 7, which were identified and introduced into the record, Tr. 184, but not submitted to the jury, revealed that, in fact, Mr. "Dixon" was someone who had been twice convicted of drug trafficking offenses in North Carolina under the names Kevin Jackson and Terry Roberts. Tr. 142-153, 164-184.
5. Assistant United States Attorney Douglas Klein also told undersigned counsel that, upon being assigned the prosecution of Mr. xxxxxxx's case, his first question to the police officers in this case was whether they had retrieved Mr. xxxxxxx's luggage from the overhead rack on the train.
6. Indeed, Mr. xxxxxxx would have been entitled to a missing evidence instruction, see Criminal Jury Instructions for the District of Columbia (4th ed. 1993), Instr. 2.41, since the luggage would have elucidated a matter that was material and relevant to Mr. xxxxxxx's trial and was peculiarly within the police officers' ability to produce.
7. The Due Process Clause of the Fifth Amendment states that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law." U.S. Const., Amend. V.