U.S. v. Fletcher, s. 85-2521
Decision Date | 17 September 1986 |
Docket Number | Nos. 85-2521,85-2522 and 85-2523,s. 85-2521 |
Citation | 801 F.2d 1222 |
Parties | UNITED STATES of America, Plaintiff-Appellant, v. Johnie Bryant FLETCHER, Douglas Ray Langston and James Breedlove, Defendants- Appellees. |
Court | U.S. Court of Appeals — Tenth Circuit |
Louis M. Fischer, Atty., Dept. of Justice, Washington, D.C. (Roger Hilfiger, U.S. Atty., and Sheldon J. Sperling, Asst. U.S. Atty., E.D.Okl., with him on the briefs), for plaintiff-appellant.
Thomas K. Moran, Tulsa, Okl., for defendant-appellee Fletcher.
Michael E. Kelly, of Kelly and Howerton, Muskogee, Okl., for defendants-appellees Langston and Breedlove.
Before McKAY, SEYMOUR, and MOORE, Circuit Judges.
John Bryant Fletcher, Douglas Ray Langston and James Breedlove were indicted for conspiring to distribute methamphetamine in Broken Arrow, Oklahoma, in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1982). Fletcher was additionally charged with using a telephone to facilitate the distribution, in violation of 21 U.S.C Sec. 843(b). 1 Before trial, defendants moved to dismiss the indictment, contending that the loss by local police of certain tape recordings of conversations between defendants and an informant deprived them of potentially exculpatory material under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). After a hearing, the district court agreed, and dismissed the indictment with prejudice. The Government brings this appeal pursuant to 18 U.S.C. Sec. 3731 (1982), and we reverse.
The essential facts are straightforward. Ron Jones, the alleged buyer of the methamphetamine, was an informant for the Broken Arrow Police Department. During the investigation, police surreptitiously recorded nine conversations between Jones and various individuals. Four tapes were used to make the recordings, which were transcribed by police secretaries shortly after defendants were arrested. Two of the tapes, containing five conversations, were lost after transcription and have never been found. According to the Government, the two available tapes contain four telephone conversations, three between Jones and Fletcher and the fourth between Jones and a woman who is not a party to this case. The two missing tapes contain four telephone conversations and one meeting. The telephone conversations are between Jones and Fletcher, Jones and Fletcher's sister, and Jones and two individuals not parties to this case. The recorded meeting took place in Jones' mobile home between Jones and the three defendants. Although the police transcripts of the missing tapes are available, the transcripts indicate that portions of the tapes are inaudible or unintelligible.
On the morning of trial, Fletcher's counsel told the court he had been advised that two of the tapes had been lost. The prosecutor confirmed the loss of the tapes and related his efforts to locate them. 2 A police officer who had participated in the surveillance was called by the Government and testified about the general contents of the tapes and the prosecutor's efforts to find them.
Defendants moved for dismissal of the charges. The Government argued that the loss of the tapes was not crucial because the informant and two police officers who had monitored the recording could testify about the contents of the conversations. The Government asserted that dismissal was not warranted in the absence of governmental misconduct and that no such evidence existed in this case. The Government gave the court a copy of the nine transcripts and indicated which ones were from lost tapes and who had participated in each conversation. The court and the prosecutor then had the following exchange:
....
Rec., vol. II, at 50-52 (emphasis added).
The court thereafter ruled from the bench that the indictment should be dismissed, stating:
Id. at 62 (emphasis added). On appeal, the Government argues that the dismissal of the indictment was erroneous because the district court (1) applied the wrong test to assess lost evidence which is potentially exculpatory, and (2) made a finding of prejudice without considering alternative means by which defendant could obtain comparable evidence.
The Supreme Court recently discussed the prosecution's duty to preserve potentially exculpatory evidence in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). Trombetta involved a police practice of having suspected drunk drivers submit to a breath analysis test and then routinely destroying the breath samples...
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