MARIA E. STRATTON

Federal Public Defender

CARLTON F. GUNN

Deputy Federal Public Defender

Suite 1503, United States Courthouse

312 North Spring Street

Los Angeles, California 90012-4758

Telephone (213) 894-7730

Attorneys for Defendant

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

xxxxxxxxxxxxx,

Defendant.

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NO. CR 97-648-KMW

MEMORANDUM OF POINTS AND AUTHORITIES RE: JENCKS MATERIAL

Defendant, xxxxx xxxxxx, through Deputy Federal Public Defender Carlton F. Gunn, hereby submits the attached memorandum of points and authorities regarding material which defendant believes is subject to disclosure under the Jencks Act, 18 U.S.C. § 3500, and Rule 26.2 of the Federal Rules of Criminal Procedure if the

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Court permits the government to call certain experts as witnesses at trial.

Respectfully submitted,

MARIA E. STRATTON

Federal Public Defender

DATED: July __, 2000 By______________________________

CARLTON F. GUNN

Deputy Federal Public Defender

MEMORANDUM OF POINTS AND AUTHORITIES

I

INTRODUCTION

PATRICK xxxxxxxxxxxx and two co-defendants, VICTOR xxxxxxxxxxxx and MICHAEL xxxxx, are charged in a multi-count indictment with various drug trafficking offenses. Trial is presently scheduled to commence on February 23, 1998.

The government has indicated that it will seek to call several expert witnesses at trial. One is a handwriting expert whose report the government disclosed to the defense several weeks ago. The other experts include chemists who will testify about chemical analysis of narcotics seized during the investigation and drug trafficking "experts" who will testify about "the nature and practices of Nigerian heroin trafficking organizations," in one instance, and "the analysis of pen register and telephone toll records," in another. Exhibit A. The defense has filed a motion to exclude the testimony of the latter two experts on several grounds, including, but not limited to, the late notice given by the government.

The experts the government wishes to call may have testified in prior trials and it is likely that there have been convictions in at least some of those trials. If the defendants appealed their convictions, the government should have transcripts of the experts' testimony from those trials.

For the reasons set forth below, those parts of any transcript in which one of the the experts testified about his or her qualifications or testified about general knowledge, procedures and practices in his or her area of expertise are subject to disclosure under the Jencks Act. The Court should order the government to assure that any such part of any such transcript is available for disclosure. It should also encourage the government to disclose the transcripts early, as the defense will need at least some time to review them before cross examining the expert or experts in question. ⁽¹⁾

II.

ARGUMENT

The Jencks Act is codified at 18 U.S.C. § 3500. A similar provision is incorporated in the Federal Rules of Criminal Procedure, as to both the government and the defense, in Rule 26.2.

The Act requires production of "any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified." 18 U.S.C. § 3500(b). The Act then defines "statement" to include "a stenographic, mechanical, electrical, or other

recording, or a transcription thereof." 18 U.S.C. § 3500(e)(2) (emphasis added).

The Act's reference to "the subject matter as to which the witness has testified" has been read broadly by the Ninth Circuit. In the case of a witness who is testifying about particular events and activities, it "need relate only generally to the events and activities testified to by the witness." United States v. Bibbero, 749 F.2d 581, 585 (9th Cir. 1984), cert. denied, 471 U.S. 1103 (1985). Accord United States v. Brumel-Alvarez, 991 F.2d 1452, 1463 (9th Cir. 1992). It may be a statement addressing a different or broader concern that overlaps the subject of the witness' testimony at the trial. See, e.g., Brumel-Alvarez, 991 F.2d at 1463.

This makes clear that testimony by an expert in a different trial about the general areas of qualifications and practices, procedures, and methods of analysis does "relate[ ] to the subject matter as to which the witness has testified" in the new trial. The expert's testimony about his or her qualifications in the prior trial is subject to disclosure if the expert is going to testify about his or her qualifications in the new trial. The expert's testimony about generalities, such as how Nigerian drug traffickers operate or how handwriting experts analyze documents, is subject to disclosure if the expert is going to testify about the same general topics in the new trial. The expert's testimony about common terminology or common practices is subject to disclosure if the expert is going to testify about that common terminology or those common practices in the new trial.

With respect to testimony about the drug trafficking experts, this would mean virtually all of their testimony in a prior trial would be subject to disclosure. Such experts are not allowed to give opinions about a particular defendant's behavior but are only allowed to give testimony about general practices of drug traffickers -- if that. The government should thus have available, and be required to produce, all existing transcripts of any drug trafficking "experts" whom the Court allows to testify over the defense's objection.

A handwriting expert's testimony can generally be broken down into three areas. Those are: (1) the expert's qualifications and training; (2) general procedures and approaches and methods of handwriting analysis, and, in some instances, an explanation of terminology used by handwriting experts; and (3) the expert's application of those methods to the particular handwriting at issue in the case. While the last of these areas is always case-specific and will therefore be a different "subject matter" in each case, the testimony about qualifications, methods of analysis, and terminology will presumably be the same. Testimony which a handwriting expert has given in those areas in prior trials is therefore the same "subject matter", and so is subject to disclosure under the Jencks Act.

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III.

CONCLUSION

Any transcripts of testimony by the government's handwriting expert and the government's drug trafficking "experts" which are now in the possession of the government are subject to disclosure, in whole or in part, under the Jencks Act. The Court should order the government to have those transcripts available for disclosure at an appropriate time. So as to avoid delay in the trial, the Court should also strenuously urge the government to disclose the transcripts prior to the witness' testimony.

Respectfully submitted,

MARIA E. STRATTON

Federal Public Defender

DATED: July __, 2000 By______________________________

CARLTON F. GUNN

Deputy Federal Public Defender

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1. This request is made only with respect to the experts other than the chemists who will testify about chemical analysis of the narcotics. While the same rules should apply to those experts' testimony, their testimony will not be contested. The defense therefore does not request transcripts of those experts' prior testimony, even though it would be entitled to them.