IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

NEWNAN DIVISION

UNITED STATES OF AMERICA )

)

vs. ) ) xxxxxxxxxxxx

)

xxxxxxxxxxxxxxxxxxxxx )

_____________________________)

MOTION TO PRESERVE EVIDENCE

AND BRIEF IN SUPPORT

COMES NOW Defendant, xxxxxxxxxx, by and through undersigned counsel, and respectfully moves this Honorable Court to enter an Order directing the Government to preserve and retain intact and not to destroy, alter or "misplace" any evidence, tangible papers, reports, objects or other information relating in any way to this indictment, including, but not limited to the various information and materials requested by the Defendant through pre-trial motions filed herein. As grounds therefor, the Defendant states as follows:

(1)

This Motion does not demand, at this time, disclosure, discovery, inspection or production. It merely seeks to preserve evidence, directly admissible or otherwise, and other information which may, at some future stage of the proceedings, be necessary or helpful to a proper resolution of this case consistent with the Defendant's theory of defense.

(2)

Included in this Motion, by way of illustration only, would be the following, and any and all information relating to or from the following:

(a) Evidence, reports, notes or other information arguably subject to disclosure, discovery, inspection or subpoena pursuant to Rules 6(e), 16(a) and 17 of the Federal Rules of Criminal Procedure;

(b) Evidence, reports, notes or other information arguably subject to production or disclosure at trial pursuant to 18 U.S.C. §3500 or Rules 612 or 613(a) of the Federal Rules of Evidence;

(c) Evidence, reports, notes or other information arguably favorable or useful to the Defendant regarding guilt or innocence or concerning impeachment of prosecution witnesses; and/or

(d) Evidence, surveillance reports and witness interview notes and notes relative to witnesses the prosecution does not intend to call at this time, but who the prosecution may wish to call as a witness at a pretrial hearing or a witness which the prosecution classifies as a "potential" or "prospective" witness at the trial itself.

(3)

Any of the above in the direct or indirect or constructive possession, care, custody or control of the prosecution may be required for scrutiny by the Court or defense counsel during the pretrial and trial stages of this case.

ARGUMENT AND AUTHORITY

The purpose of this Motion is to preserve evidence. It is occasioned and necessitated by the administrative practice of alleged good-faith destruction of records by the Government, see e.g., United States v. Harris, 543 F.2d 1247 (9th Cir. 1976), ⁽¹⁾ and by the caution which experience teaches. See also, United States v. Bufalino, 576 F.2d 446 (2nd Cir.), cert. denied, 429 U.S. 928 (1978) (retention of "rough" drafts and notes of written reports made during the course of investigation).

The appropriate standard by which to gauge Defendant's Motion is a simple balancing test. Defendant submits that the prosecution has no legitimate interest in the alteration or suppression of documents and little or no interest in their destruction. The incidental and slight burden which might be imposed upon the Government agencies involved by requiring them to retain their records intact as they pertain to this case until such time as the Defendant has an opportunity to inspect them is manifestly outweighed by the Defendant's substantial interest in a fair trial and his right to due process of law. The nature and complexity of this case "tip" the scale even further in favor of granting the instant Motion.

Indeed, Defendant submits that the Government has an obligation to preserve all potentially discoverable evidence gathered in the course of a criminal investigation. See United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971). Government notes of interviews with persons who are or may be witnesses, or with other persons who may have provided exculpatory evidence or information, are a type of material evidence which the Government must maintain. United States v. Harrison, 524 F.2d 421 (D.C. Cir. 1975); United States v. Johnson, 521 F.2d 1318 (9th Cir. 1975). These matters are, in either case, properly discoverable by the Defendant.

DATED: This ______ day of June, 1993.

Respectfully submitted,

______________________________

R. GARY SPENCER

Attorney for:

State Bar Number: 671905

C:\wwwfpd\preserv2.wpd