U.S. v. Derrick

• Decision Date: 23 November 1998
• Docket Number: 97-4231 and 97-4232,Nos. 97-4230,s. 97-4230
• Citation: 163 F.3d 799
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Paul Wayne DERRICK, Defendant-Appellee. Dale L. DuTremble; E. Bart Daniel; Richard Greer, Amici Curiae, and Charleston Post and Courier, Movant. United States of America, Plaintiff-Appellant, v. Jefferson Marion Long, Jr., a/k/a Bud, Defendant-Appellee. Dale L. DuTremble; E. Bart Daniel; Richard Greer; Alva Taylor Brown, Personal Representative of the Estate of Luther Langford Taylor; National Association of Criminal Defense Lawyers, Amici Curiae, and Charleston Post and Courier, Movant. United States of America, Plaintiff-Appellant, v. Larry Blanding, Defendant-Appellee. Dale L. DuTremble; E. Bart Daniel; Richard Greer; Estate of Benjamin J. Gordon, Jr., a/k/a B.J. Gordon; Alva Taylor Brown, Personal Representative of the Estate of Luther Langford Taylor; National Association of Criminal Defense Lawyers, Amici Curiae, and Charleston Post and Courier, Movant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 799

163 F.3d 799

UNITED STATES of America, Plaintiff-Appellant, v. Paul Wayne DERRICK, Defendant-Appellee.

Dale L. DuTremble; E. Bart Daniel; Richard Greer, Amici Curiae,

and

Charleston Post and Courier, Movant.

United States of America, Plaintiff-Appellant, v. Jefferson Marion Long, Jr., a/k/a Bud, Defendant-Appellee.

Dale L. DuTremble; E. Bart Daniel; Richard Greer; Alva

Taylor Brown, Personal Representative of the Estate of

Luther Langford Taylor; National Association of Criminal

Defense Lawyers, Amici Curiae,

and

Charleston Post and Courier, Movant.

United States of America, Plaintiff-Appellant, v. Larry Blanding, Defendant-Appellee.

Dale L. DuTremble; E. Bart Daniel; Richard Greer; Estate

of Benjamin J. Gordon, Jr., a/k/a B.J. Gordon; Alva Taylor

Brown, Personal Representative of the Estate of Luther

Langford Taylor; National Association of Criminal Defense

Lawyers, Amici Curiae,

and

Charleston Post and Courier, Movant.

Nos. 97-4230, 97-4231 and 97-4232.

United States Court of Appeals Fourth Circuit.

Argued May 7, 1998.

Decided Nov. 23, 1998.

ARGUED: Elizabeth Dorsey Collery, Appellate Section, Criminal Division, United States Department of Justice, Washington, D.C., for Appellant. Dale L. DuTremble, Charleston, South Carolina; Gedney Main Howe, III, Charleston, South Carolina, for Amici Curiae DuTremble, Daniel and Greer. Joel Wyman Collins, Jr., Collins & Lacy, P.C., Columbia, South Carolina; Jack Bruce Swerling, Columbia, South Carolina, for Appellees. Marvin David Miller, Alexandria, Virginia; Lionel S. Lofton, Charleston, South Carolina; Joel W. Collins, Jr., Collins & Lacy, P.C., Columbia, South Carolina, for Amici Curiae Association, Gordon, and Estate of Taylor. ON BRIEF: John C. Keeney, Acting Assistant Attorney General, Criminal Division, United States Department of Justice, Washington, D.C., for Appellant. James E. Bell, III, Bell & Moore, Sumter, South Carolina, for Appellee Blanding. Lisa B. Kemler, Zwerling & Kemler, Alexandria, Virginia, for Amicus Curiae Association.

Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.

Vacated and remanded by published opinion. Judge LUTTIG wrote the opinion, in which Judges WIDENER and NIEMEYER joined. Judge WIDENER wrote a separate concurring opinion.

OPINION

LUTTIG, Circuit Judge:

Appellant, the United States of America, appeals from the order of the federal district court for the District of South Carolina, dismissing with prejudice five indictments returned in the aftermath of the so called Operation Lost Trust investigation into political corruption in the South Carolina Statehouse in the early 1990s. For the reasons that follow, we vacate the opinion of the district court and remand with instructions that the dismissed indictments be reinstated.

I.

This case arises from an FBI investigation into political corruption in the South Carolina legislature in connection with its consideration in 1990 of the state's parimutuel betting legislation. That investigation resulted in the prosecution and conviction by jury of the defendants-- Larry Blanding, Paul Wayne Derrick, and Jefferson Marion Long, Jr. ¹ --for various offenses, including extortion under color of official right and conspiracy to commit extortion, in violation of the Hobbs Act, 18 U.S.C. § 1951. Defendants Blanding's and Derrick's convictions (as well as Taylor's and Gordon's) were eventually overturned by this court on appeal on the grounds that the intervening Supreme Court decisions in McCormick v. United States, 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991), and Evans v. United States, 504 U.S. 255, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992), rendered defective the jury instructions that were given at their trials. See United States v. Blanding, 1992 WL 138353, 966 F.2d 1444 (4th Cir. No. 91-5871); United States v. Derrick, 1994 WL 34691, 16 F.3d 412 (4th Cir. No. 92-5084). We affirmed the district court's award of a new trial to defendant Long based upon the improper playing of inadmissible tape recordings before his jury. United States v. Long, 1994 WL 56993, 19 F.3d 1430 (4th Cir. No. 92-6799). Accordingly, all three cases were remanded to the district court for retrial.

Upon remand, defendant Taylor moved for dismissal of his superseding indictment, which had also included defendants Gordon and Blanding, on the grounds of discovery violations and other alleged prosecutorial misconduct. And in response to these allegations of improper withholding of documents and other wrongdoing, the government decided essentially to "start over on discovery by providing it again." United States v. Taylor, 956 F.Supp. 622, 626 n. 4 (D.S.C. 1997) (district court order dismissing defendants' indictments) (quoting 10/18/94 OPR Report at 10). This decision having been made, the government produced to the defendants "all [FBI] 302s that mentioned any co-conspirator named in the new indictment as well as all pre-trial Jencks Act materials." J.A. at 2688. This production on November 29, 1993, prompted defendant Gordon also to move for the dismissal of his indictment on the grounds that the government had improperly withheld materials required to be produced under Brady v.Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

On February 22, 1994, the district court granted the government's motion for continuance in order to allow the Department of Justice's Office of Professional Responsibility (OPR) to investigate the defendants' allegations of prosecutorial misconduct. That investigation, which disclosed no intentional misconduct by the prosecution in these cases, was concluded in October of 1994. Although the Department of Justice found that the prosecution had not engaged in any intentional wrongdoing, the United States Attorney for South Carolina recused his office from further involvement, and attorneys from Public Integrity at Main Justice assumed responsibility for prosecution of the cases.

Thereafter, at an October 20, 1994, status conference, the government agreed to produce to the defendants all FBI 302s and transcripts in its possession relating to the investigation, reserving the right to seek in camera review by the court of any materials the government believed should not be produced. J.A. at 1334, 1341. The district court also ordered the government to produce any existing handwritten interview notes. J.A. at 1348. All of these materials were to be surrendered by December 1, 1994, into the evidence room established by the district court. J.A. at 1352-53 (district court discovery order). Pursuant to its promise at the status conference, the government placed a large number of documents in the evidence room. Additionally, acting upon its reservation of right, the government submitted a number of FBI 302s to the court for in camera inspection and argued that they should not be produced to the defendants.

In January and February of 1995, the prosecution learned that the FBI had in its possession tape recordings and FBI 302s relating to the 1988-89 drug investigations of prosecution witness Ron Cobb. Upon learning of these materials, the prosecution obtained these documents and turned them over to the defendants.

Following the above-described productions, the defendants proposed to the court at its April 19, 1995, hearing on pending discovery motions, that

the government take every scrap of paper that they have, every internal memorandum, every piece of correspondence, every doodle pad, every videotape, every transcript, every audio tape, everything, put it in the room.

J.A. at 1364-65. (The same day, defendant Derrick filed a motion to dismiss his indictment.) And the following day, over the government's objections that it had already produced far more documents than required by Brady and federal rules, the district court issued an order "[t]o avoid any further confusion as to what material should and should not be turned over by the government to the ... defendants." J.A. at 1418, 1419. That order required the government to produce for in camera inspection by May 8, 1995, "all documents and/or materials in [its] possession ... dealing with these cases and not presently available to the defendants in the 'evidence room'." J.A. at 1420. In compliance with the court's order, the government produced, according to the district court, seven file boxes from the Department of Justice, four file boxes from the FBI, and one file box from the Office of Professional Responsibility. See J.A. at 1422.

In a July 25, 1995, discovery order entered following its in camera review of the materials produced pursuant to its earlier orders, the district court concluded that the government's argument that the drug-related audiotapes produced in March of 1995 were not relevant or discoverable under Brady was "ludicrous" because "the drug investigation was hand-in-glove with the corruption investigation known as Lost Trust." J.A. at 1427. Arguments such as the one made by the government, the district court said, "cause the court to look very closely at what was withheld by the government that may have jeopardized the rights of these defendants." J.A. at 1427. The court also concluded that documents relating to corruption in connection with the capital gains legislation (as opposed to the parimutuel betting legislation that was the subject of the Lost Trust sting operation) were relevant to the defendants' defense because "one of the key figures in the Lost Trust investigation pled to a RICO violation, one of the predicate offenses of which was the taking of a bribe from the government's cooperating subject and key Lost Trust witness, Ron Cobb, in relation to the capital gains tax bill." J.A. at 1428.

As to the documents submitted by the government for in camera inspection, the district court concluded they were

in the main, internal administrative documents constituting privileged work products, or are documents that are part of the public record in these cases, or are copies of...