F. Richard Curtner
Federal Public Defender
FEDERAL PUBLIC DEFENDER
FOR THE DISTRICT OF ALASKA
550 W. Seventh Avenue, Suite 1600
Anchorage, AK 99501
(907) 271-2277
Sue Ellen Tatter
510 L Street, Suite 306
Anchorage, AK 99501
(907) 277-7171
Attorneys for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. F96-0026 CR (HRH)
)
Plaintiff, )
)
vs. )
)xxxxxxxxxxxx, )
)
Defendant. )
____________________________________)
EXCLUDABLE DELAY:
A period of excludable delay under 18 U.S.C. § 3161(h) may
occur as the result of the filing/granting/denying of this motion.
MOTION FOR ORDER DIRECTING PRESERVATION OF
AND PRODUCTION OF (IN CAMERA IF NECESSARY)
NOTES OF ALL INVESTIGATIVE AND LAW ENFORCEMENT
OFFICERS AS POSSIBLE JENCKS ACT MATERIALS (1)
COMES NOW THE DEFENDANT, xxxxxxxxx xxxxxxx, by and through his attorneys, RICH CURTNER, Federal Public Defender and SUE ELLEN TATTER, and hereby moves this court for the entry of an order requiring the government to preserve the investigative notes of all law enforcement agencies and officers involved in this case of interviews of the defendant, and any other perspective government witnesses. This request is made pursuant to Fed.R. Crim.P. 16 and the holding in the United States v. Harris, 543 F.2d 1247 (9th Cir. 1976).
Federal Criminal Rule 16(a)(1)(A) reads in pertinent part as follows:
Rule 16. Discovery and Inspection
(a) Governmental Disclosure of evidence.
(1) Information Subject to Disclosure.
(A) Statement of Defendant. Upon request of a defendant the government must disclose to the defendant and make available for inspection, copying, or photographing: any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become known to the attorney for the government; that portion of any written record containing the substance of any relevant oral statement made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent; and recorded testimony of defendant before a grand jury which relates to the offense charged. The government must also disclose to the defendant the substance of any other relevant oral statement made by the defendant whether before or after arrest in response to interrogation by any person then known by the defendant to be a government agent if the government intends to use that statement at trial.
(emphasis added)
The government has provided to the defense numerous audio tapes and video tapes of the custodial interrogation of Mr. xxxxxxx at the time of his arrest on July 16, 1996. (See, Discovery Receipt No. 4, attached as Exhibit A). The government has also produced 12 pages of report summaries of Mr. xxxxxxx's oral statements. (See USA discovery item No. 70 at discovery Receipt No. 3, attached as Exhibit B). However, the government has to date not produced any other written notes, summaries or other written records of statements made by the defendant. Mr. xxxxxxx specifically requests the United States Attorney to interview each law enforcement agent who spoke with Mr. xxxxxxx in order to ascertain the substance and circumstance of all oral statements of Mr. xxxxxxx and the existence of any notes of those interviews.
These rough notes should include the products of interviews with Abram xxxxxxx and witnesses. These notes can contain relevant evidence, both of an exculpatory nature, and can provide relevant information in the determination of pre-trial motions. Of particular importance in this case are notes pertaining to the custodial statements of Mr. xxxxxxx. Those notes would be directly discoverable as statements of the defendant and can also provide relevant information as to the circumstances and voluntariness of that interview. Additionally, the notes of interviews of other individuals may constitute Jencks Act materials.
Should the government assert that these materials are not Jencks Act materials, the procedure is for the court to review the notes in camera. U.S. v. Johnson, 521 F.2d 1318 (9th Cir. 1975) at pg. 1319 and 1320. This approach is confirmed in United States v. Pisello, 877 F.2d 762 (9th Cir. 1989), where the procedure is set forth. Pisello recognizes that not all notes are Jencks Act materials and that the District Court must make that conclusion.
Therefore, the government should be directed to instruct all of its agents to preserve those hand-written notes. Only upon preservation of these notes, can the subsequent decisions as to the possible discovery of those notes as either Jencks Act materials or Brady materials take place. Should the agents in the interim destroy those notes there is no way to reevaluate whether or not, had they been preserved, that they should have been disclosed.
CONCLUSION
This court should issue an order directing the preservation of these materials. Preservation of them does not require the government to litigate, at this stage the Jencks Act question, nor the question of exculpatory evidence. It simply requires the preservation of the evidence in the status quo pending later substantive motions.
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DATED this _____ day of July, 2000.
Respectfully submitted,
__________________________________
RICH CURTNER
Federal Defender
DATED this _____ day of July, 2000.
__________________________________
SUE ELLEN TATTER
F. Richard Curtner
Federal Public Defender
FEDERAL PUBLIC DEFENDER
FOR THE DISTRICT OF ALASKA
550 W. Seventh Avenue, Suite 1600
Anchorage, AK 99501
(907) 271-2277
Sue Ellen Tatter
510 L Street, Suite 306
Anchorage, AK 99501
(907) 277-7171
Attorneys for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. F96-0026 CR (HRH)
)
Plaintiff, )
)
vs. ) AFFIDAVIT OF RICH CURTNER
)
ABRAM PAUL xxxxxxx, )
)
Defendant. )
____________________________________)
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
Rich Curtner, being first duly sworn upon oath, deposes and states:
1. I am one of the attorneys for Abram xxxxxxx.
2. I am aware that in the past the government has acknowledged it has a duty to preserve an agent's original interview notes with a suspect or potential witness.
3. The gravamen of this Motion is simply to preserve the notes, not to reach any substantive question of their discoverability.
FURTHER YOUR AFFIANT SAYETH NAUGHT.
________________________________
Rich Curtner
SUBSCRIBED AND SWORN to before me this _____ day of July, 2000.
________________________________
Notary Public in and for Alaska
My Commission Expires:__________
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. F96-0026 CR (HRH)
)
Plaintiff, )
)
vs. ) ORDER DIRECTING PRESERVATION
) OF NOTES
ABRAM PAUL xxxxxxx, )
)
Defendant. )
____________________________________)
IT IS HEREBY ORDERED that the Office of the United States Attorney shall direct, in writing, each of the investigative agencies involved that the original interview notes with Abram xxxxxxx, and all potential witnesses must be preserved.
It is the responsibility of the Office of the United States Attorney to provide this written direction to its investigative agencies within twenty-four (24) hours of the entry of this order.
This court does not address the issue of disclosure of those notes to the defendant or even to the court.
DATED this _____ day of _____________, 1997.
__________________________________________
U.S. DISTRICT JUDGE
F. Richard Curtner
Federal Public Defender
FEDERAL PUBLIC DEFENDER
FOR THE DISTRICT OF ALASKA
550 W. Seventh Avenue, Suite 1600
Anchorage, AK 99501
(907) 271-2277
Sue Ellen Tatter
510 L Street, Suite 306
Anchorage, AK 99501
(907) 277-7171
Attorneys for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. F96-0026 CR (HRH)
)
Plaintiff, )
)
vs. ) STATEMENT OF EXCLUDABLE DELAY
)
xxxxxxx xxxxxxx, )
)
Defendant. )
____________________________________)
Excludable delay may be involved due to the filing of this Motion for Order Directing Preservation Of and Production Of (In Camera If Necessary) Notes Of All Investigative And Law Enforcement Officers As Possible Jencks Act Materials.
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DATED this _____ day of July, 2000.
Respectfully submitted,
__________________________________
RICH CURTNER
Federal Defender
F. Richard Curtner
Federal Public Defender
FEDERAL PUBLIC DEFENDER
FOR THE DISTRICT OF ALASKA
550 W. Seventh Avenue, Suite 1600
Anchorage, AK 99501
(907) 271-2277
Sue Ellen Tatter
510 L Street, Suite 306
Anchorage, AK 99501
(907) 277-7171
Attorneys for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. F96-0026 CR (HRH)
)
Plaintiff, )
) CERTIFICATE OF SERVICE
vs. )
)
xxxxxxx xxxxxxx, )
)
Defendant. )
____________________________________)
DEBBYE MINZENMAYER, being first duly sworn upon oath, deposes and states as follows:
1. I am an employee of the Federal Public Defender, counsel for defendant ABRAM PAUL xxxxxxx in the above-captioned action. I am nineteen (19) years of age or older.
2. On the ____th day of July, 2000, I mailed a true and correct copy of MOTION FOR ORDER DIRECTING PRESERVATION OF AND PRODUCTION OF (IN CAMERA IF NECESSARY) NOTES OF ALL INVESTIGATIVE AND LAW ENFORCEMENT OFFICERS AS POSSIBLE JENCKS ACT MATERIALS; AFFIDAVIT OF RICH CURTNER; and proposed ORDER DIRECTING PRESERVATION OF NOTES to:
Stephen Cooper
Asst. U.S. Attorney
U.S. ATTORNEY'S OFFICE
Federal Courthouse Building
101 Twelfth Avenue, Box 2
Fairbanks, AK 99701
Sue Ellen Tatter
510 L Street, Suite 306
Anchorage, AK 99501
(907) 277-7171
_________________________________
DEBBYE MINZENMAYER
C:\wwwfpd\jencks2.wpd
1. 0Defendant recognizes that there are time constraints on the production of Jencks Act materials, but believes that the determination as to whether the notes are Jencks Acts materials can only be done if those notes are preserved.