U.S. v. Jordan
| Citation | 316 F.3d 1215 |
| Decision Date | 06 January 2003 |
| Docket Number | No. 00-15828.,00-15828. |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Albert JORDAN, Jimmy Woodward, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Michael V. Rasmussen, U.S. Atty., Shirley L. McCarty, Craig Donsanto, Donald Cochran, Birmingham, AL, Thomas M. Gannon, Crim. Div., App. Section, Washington, DC, for Plaintiff-Appellant.
William N. Clark, Redden, Mills & Clark, David Cromwell Johnson, Johnson & Mobley, Christopher B. Parkerson, David Cromwell Johnson & Associates, Birmingham, AL, for Defendants-Appellees.
Appeal from the United States District Court for the Northern District of Alabama.
Before TJOFLAT, BARKETT and WILSON, Circuit Judges.
During the trial of this criminal case, while the Government was putting on its case in chief, the district court dismissed the indictment with prejudice on the ground of prosecutorial misconduct. According to the court, the prosecutor's withholding and/or untimely production of evidence and other material discoverable under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and the Jencks Act, 18 U.S.C. § 3500, denied the defendants rights guaranteed them by the Fifth and Sixth Amendments. After a thorough examination of the record, we conclude that the court misapplied the rules established by Brady, Giglio, and the Jencks Act and that the prosecutor did nothing that justified the dismissal of the indictment, let alone the imposition of any other sanction. Because the court's dispositive action resulted from an erroneous application of the law, the action constituted an abuse of discretion, requiring that we vacate the judgment of dismissal and remand the case for further proceedings.
In November 1998, Jimmy Woodward was the incumbent Sheriff of Jefferson County, Alabama. The two largest cities in Jefferson County are Birmingham and Bessemer. Woodward, a Republican, ran for reelection on November 3, 1998, but lost by 37 votes out of the 212,000 votes cast.1 Woodward's opponent, Mike Hale, a Democrat, was certified the winner.
Woodward planned to challenge the election results, and, on November 4, secured the services of Albert Jordan, an attorney who specialized in election cases. Woodward hoped to obtain a vote recount, so Jordan at first went to work seeking a recount in several Alabama courts. Jordan failed to obtain a vote recount, however, so he filed an election contest in the Jefferson County Circuit Court on November 24, 2000, alleging, among other things, that convicted felons had voted in violation of Alabama law. See Ala. Const. of 1901, art. VIII, § 182.
On the day Woodward hired Jordan, Woodward telephoned Assistant Sheriff Royce Fields, who served under Woodward as the head of the Bessemer branch of the Jefferson County Sheriff's Department (JCSD), and informed him that he had decided to conduct a voter fraud investigation. The investigation began with the running of computer checks on the names of those in Bessemer who voted by absentee ballot to determine whether any convicted felons had voted.2
The computer checks were conducted through the Alabama Criminal Justice Information System (ACJIS), which is connected to a system that houses nationwide criminal records, the National Crime Information Center (NCIC).3 The ACJIS, which is based in Montgomery, Alabama, is maintained for the use of Alabama law enforcement personnel. The NCIC, which is based in Clarksburg, West Virginia, is maintained by the Federal Bureau of Investigation (FBI) and is used nationwide by police agencies. If a name is checked through the ACJIS, it is usually automatically run through the NCIC databases as well. Access to both the ACJIS and NCIC is circumscribed by strict rules requiring that they be utilized for law enforcement purposes only.4 Specifically, to access the ACJIS and NCIC, local law enforcement agencies must agree in writing to adhere to the rules and regulations governing the NCIC, and to use the system only for legitimate law enforcement purposes.
The Government believes that Woodward and Jordan, in pursuit of Woodward's election contest, conspired illegally to use, and in fact illegally used, JCSD employees and resources to conduct computer checks on the ACJIS and NCIC to determine whether any of the Bessemer absentee voters had felony convictions.5 The Government contends that Woodward started the voter fraud investigation as a means to conceal his use of the ACJIS and NCIC for his private purposes. Accordingly, on June 21, 2000, following a joint investigation by the Alabama Attorney General and the U.S. Attorney for the Northern District of Alabama, a Northern District of Alabama grand jury, which had been empaneled in September 1999,6 returned the instant five-count indictment7 against Woodward and Jordan.8 The defendants were arraigned on July 20, 2000, and entered pleas of not guilty.9 The district court scheduled their trial for Tuesday, October 10, 2000.10
On the day the defendants were arraigned, the Government served them with a Discovery Notice in anticipation of their request for discovery pursuant to Rule 16 of the Federal Rules of Criminal Procedure. With respect to Rule 16(a)(1)(A),11 the Discovery Notice stated that the Government was providing defense counsel with the following:
Copies of a 302 interview with Woodward on March 31, 199[9], a 302 of an interview with Jordan on February 16, 2000, a November 6, 1998 letter, a November 6, 1998 press release, a January 15, 1999 letter, a January 15, 1999 press release, and a March 23, 2000 letter with attachments, will be made available upon request.
With respect to Rule 16(a)(1)(C),12 the Discovery Notice informed defense counsel that they could "review" at the U.S. Attorney's office and "make notes of" "grand jury transcripts and summaries of interviews,"13 but they "w[ould] not be permitted to copy these materials."14 The Discovery Notice, in recognition of the prosecution's constitutional obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),15 and Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972),16 went on to state:
If, after reviewing the [grand jury transcripts and summaries of interviews, defense] counsel believes certain documents or portions thereof contain Brady/Giglio information, counsel may provide a list of such materials to the prosecuting Assistant United States Attorney with a brief written statement of the reasons counsel believes they contain Brady/Giglio information. If the prosecutor agrees, he will provide hard copies. If the prosecutor disagrees, the defendant may move the court to review the material in camera; this office will make the materials available to the court for its review if so directed.17
...
Agreements and use immunity orders are available [with respect to witnesses who testified before the grand jury or who had been interviewed by an investigator].
In the view of Jordan's attorney, William Clark, it was the Government's responsibility, not his, to identify the portions of the grand jury transcripts and summaries of interviews that constituted Brady/Giglio material. Accordingly, on July 27, he served the Government with a Request for Disclosure in which he asked that the Government identify all of the Brady and Giglio material in its possession and to make available for inspection and copying all the items discoverable under Rule 16. His Request went one step further, however, and sought the production of materials not discoverable under Rule 16. For example, even though Rule 16(a)(2) states that internal reports and documents prepared by government agents investigating or prosecuting the case are not discoverable, counsel asked the Government to produce (1) "all notes taken by each and every federal or state agent, investigator, or employee during conversations, interviews, or investigations of this Defendant or any alleged accomplice, whether said accomplice is identified or unidentified in the indictment," and (2) "any and all correspondence between the United States of America or any agent thereof, and Alabama Attorney General Bill Pryor or any member of his staff, Jefferson County District Attorney David Barber or any member of his staff, or Bessemer District Attorney Sam Russell or any member of his staff regarding the facts contained in the indictment or any aspect of the investigation or prosecution of these Defendants during the [investigative period]." And, notwithstanding the prohibitions of Rule 16(a)(3) and the Jencks Act, counsel also asked the Government to produce the grand jury testimony and/or statements of every witness who would be testifying at the defendants' trial.18
Recognizing that these requests were outside the scope of authorized discovery, the Government responded, on July 31, to Jordan's Request for Disclosure by stating that
On July 31, Clark repeated his demand that the Government identify the Brady and Giglio material contained in the items listed in its July 20 Discovery Notice. In a Motion to Compel Specific Production of Exculpatory Statements, Documents or Information (hereinafter "Motion to Compel Specific Production"), he stated that because the Government had produced "such a voluminous amount of information," it would be "easy [for him] to overlook some document or statement."...
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