APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (D.C. Criminal Nos. 90-00431-41 and 90-00431-40).
Before: Becker, Roth and Lewis, Circuit Judges.
We confront, once again, a problem which no court, trial or appellate, should have to face in this circuit. Although we have unequivocally required since 1977 that government agents preserve rough notes of interviews with prospective trial witnesses, see United States v. Vella, 562 F.2d 275 (3d Cir. 1977) (per curiam), this case presents yet another instance in which notes were destroyed. We do not reverse here because it is apparent to us that the destroyed notes did not constitute Jencks Act*fn1 or Brady*fn2 material and that the officers who destroyed them acted in good faith. Nonetheless, we take this opportunity to emphasize that the fortuitous mix of legal and factual circumstances which might excuse the destruction of notes, and thus constrain us to leave a conviction undisturbed, are few and far between. We should not encounter such cases in the future.
Appellants Maria and Elizabeth Ramos, mother and daughter, were convicted of conspiracy to distribute cocaine and cocaine base, possession of cocaine with intent to distribute and related charges arising out of their involvement in a family-operated drug ring. The original indictment targeting the Ramos family conspiracy charged 39 defendants, including three of Maria Ramos's sons, with various drug distribution and possession charges. The majority of those charged began to cooperate, and a superseding indictment followed. Maria Ramos and Elizabeth Ramos were first charged in the superseding indictment.
At trial, the government's case against the Ramoses was supported by the testimony of 13 co-conspirators who cooperated pursuant to plea agreements. The government agrees that "the testimony of co-conspirators was the cornerstone of the evidence against the defendants." Government's brief at 12 n.2.
Detective James Moffit and his partner, Sergeant Gerald Logan, interviewed the cooperating witnesses and took notes during their initial debriefings, or "proffers," in late 1990 or early 1991. Both were long-time Philadelphia police officers who began working with the federal government on this investigation in the fall of 1989 in association with the federal Drug Enforcement Administration ("DEA"). Logan described himself as being "assigned" to the DEA; Moffit termed his position as one in which he was "detailed" or "cross-designated" to the DEA. App. at 1060, 1277, 2263. Both had been "sworn in" by the DEA and were issued DEA credentials. See app. at 1278.
It is undisputed that Moffit and, apparently, Logan*fn3 destroyed their notes after they prepared summary reports ("DEA-6s"). Appellants contend that this destruction mandated suppression of the officers' testimony or a mistrial, both of which the district court denied. (Elizabeth Ramos had moved for production of the notes prior to trial, while Maria Ramos first raised the issue of the destruction of the notes during Moffit's cross-examination at trial; it was her counsel who initially moved for a mistrial and for suppression of Moffit's testimony. See generally app. at 1285-96.)
The district court exercised jurisdiction over this case pursuant to 18 U.S.C. § 3231, and we do so pursuant to 28 U.S.C. § 1291. To the extent appellants contend that the government's actions violated the rule set forth in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), we review the district court's legal Conclusions de novo and its factual findings for clear error. United States v. Thornton, 1 F.3d 149, 158 (3d Cir. 1993); United States v. Hill, 976 F.2d 132, 134 (3d Cir. 1992). We review the district court's denial of the appellants' motion based on a claim of Jencks error for abuse of discretion. Hill, 976 F.2d at 139.*fn4
Criminal pretrial discovery is, of course, vastly different from discovery in civil cases. In contrast to the wide-ranging discovery permitted in civil cases, Rule 16 of the Federal Rules of Criminal Procedure delineates the categories of information to which defendants are entitled in pretrial discovery in criminal cases, with some additional material being discoverable in accordance with statutory pronouncements and the due process clause of the Constitution. The Jencks Act requires that after each government witness has testified on direct examination, the government must produce to the defense "any statement" made by the witness which relates to his or her testimony. In Brady, the Supreme Court held that due process required that the government produce all "exculpatory" evidence, which includes both "materials . . . that go to the heart of the defendant's guilt or innocence and materials that might affect the jury's judgment of the credibility of a crucial prosecution witness." United States v. Hill, 976 F.2d 132, 134-35 (3d Cir. 1992). See Giglio v. United States, 405 U.S. 150, 154, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972); United States v. Perdomo, 929 F.2d 967, 970 (3d Cir. 1991) (citing Moore v. Illinois, 408 U.S. 786, 33 L. Ed. 2d 706, 92 S. Ct. 2562 (1972) ("[a] valid Brady complaint contains three elements: (1) the prosecution must suppress or withhold evidence, (2) which is favorable, and (3) material to the defense")). See generally United States v. Starusko, 729 F.2d 256, 260 (3d Cir. 1984).
In United States v. Vella, 562 F.2d 275 (3d Cir. 1977) (per curiam), we held that "the rough interview notes of F.B.I. agents should be kept and produced so that the trial court can determine whether the notes should be made available to the [defendant] under the rule of Brady. . . or the Jencks Act." Vella, 562 F.2d at 276. See also United States v. Ammar, 714 F.2d 238, 259 (3d Cir. 1983) (extending rule to require preservation of rough drafts of agents' reports); United States v. Harris, 543 F.2d 1247 (9th Cir. 1976); United States v. Harrison, 173 U.S. App. D.C. 260, 524 F.2d 421, 428-29 (D.C. Cir. 1975). Since then, the DEA has apparently adopted an internal policy requiring such retention. See government's brief at 34. But we need not decide whether our holding in Vella or the DEA's ...