U.S. v. Griffin

• Decision Date: 13 January 1982
• Docket Number: No. 79-1412,79-1412
• Citation: 659 F.2d 932
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. James Douglas GRIFFIN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 932

659 F.2d 932

UNITED STATES of America, Plaintiff-Appellant, v. James Douglas GRIFFIN, Defendant-Appellee.

No. 79-1412.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 15, 1979.

Decided Oct. 19, 1981.

Rehearing and Rehearing En Banc Denied Jan. 13, 1982.

Dale A. Danneman, Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appellant.

David M. Heller, Asst. Federal Public Defender, Phoenix, Ariz., for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before TRASK and KENNEDY, Circuit Judges, and KELLEHER ^*, District Judge.

KELLEHER, District Judge:

On March 22, 1979, defendant James Douglas Griffin was indicted by a grand jury in Phoenix, Arizona on eighteen counts of embezzlement of union funds in violation of 29 U.S.C. § 501(c) and seventeen counts of embezzlement from an employee benefit plan in violation of 18 U.S.C. § 664.

This indictment was the culmination of a two and one-half year investigation by civil compliance officers of the U.S. Department of Labor. The investigation began on September 14, 1976 in response to a report by Donald Prosise, Business Agent for Roofer's Union Local 135, Phoenix, Arizona and Robert Wardle, Management Representative of the Phoenix Roofing Industry Joint Apprenticeship Committee, made to the Labor Management Services Administration of the U.S. Department of Labor. Prosise and Wardle had reported that defendant allegedly had embezzled funds from Local 135 and the Joint Apprenticeship Committee.

From September 14, 1976 through December 18, 1978 civil compliance officers from the Department of Labor conducted thirty-seven interviews on topics ranging from a description of defendant's position, of his responsibilities with the Union and of the operating procedures for the various funds from which the embezzlements allegedly occurred to his current address.

The compliance officers used their rough, handwritten notes to prepare formal interview reports, incorporating therein the material from the notes. Compliance Officer Logan testified at a pre-trial proceeding that her notes were completely incorporated into the formal reports, except for matters in her notes unrelated to the Griffin investigation such as other problems encountered by the Union officials being interviewed that were unrelated to defendant's alleged embezzlement which were omitted from the formal reports. Ms. Logan's affidavit states that the handwritten interview notes were not a verbatim transcription of the interviewee's remarks. Further, Ms. Logan states that she neither read back nor showed her rough notes of the interview to any of the interviewees.

The thirty-seven interviews conducted by the compliance officers were of twenty-four persons, including defendant. Of these thirty-seven interviews, the investigators' rough notes of twenty-two interviews were retained for ten of the interviewees (including defendant). All interview notes were retained for some twelve persons. Notes from at least one interview were retained for two persons who were interviewed on more than one occasion. The government states that copies of all of the formal interview reports are available and were provided to the defendant.

The government stated that it would call as witnesses at trial only five of the persons for whom no rough interview notes were retained: Donald Prosise, the business manager of Local 135 during most of the period to which the indictment relates; James Graham, a management representative of the Joint Apprenticeship Committee; two employees of Valley National Bank where the Union local maintained accounts, Ms. Hernandez and Ms. Marschante; and Terry Dunn of LaBelle's Discount Store, a Phoenix retail store where defendant allegedly made purchases.

Additionally, on April 9, 1979, the government filed a notice of its intention to offer the statement of an unavailable witness, Robert Wardle, pursuant to Fed.R.Evid. 804(b)(5). Wardle, a management representative on the Joint Apprenticeship Committee, died in June, 1977. Wardle and Prosise, business agent for Union Local 135, made the initial report of defendant's suspected embezzlement by telephone to a Department of Labor Compliance Officer on September 14, 1976. No notes were retained from this interview, although a two-page formal interview report was prepared. Wardle was also interviewed on February 18, 1977, the product of which was a thirteen page statement signed by Wardle. The rough notes of the investigator were not retained.

On April 5, 1979, defendant filed a motion seeking: (1) pursuant to Fed.R.Cr.P. 16(a)(1)(A) and United States v. Harris, 543 F.2d 1247 (9th Cir. 1976), production of copies of all handwritten notes made by government agents while interviewing defendant; (2) pursuant to Harris, id., preservation of all handwritten notes of interviews of witnesses for possible use at trial as Jencks Act, 18 U.S.C. § 3500, material; (3) pursuant to Fed.R.Cr.P. 16(a)(1) (C), production of all documents, photographs, and other tangible objects within the custody or control of the government which are material to defense preparation; and (4) pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), production of all evidence with a potential use for impeachment of government witnesses. On April 16, 1979, the Court ordered defendant's motion for production stricken for failure to comply with the informal discovery procedure prescribed in Fed.R.Cr.P. 16. On April 16, defendant renewed his request by letter to the United States Attorney.

On May 1, 1979, the government provided defendant with a list of all persons interviewed, the dates of the interviews, and a statement of whether the rough interview notes had been retained by the interviewing compliance officer. On May 4, 1979, defendant filed a motion to dismiss the indictment or, in the alternative, to strike the testimony of all witnesses for whom rough interview notes had not been retained. Defendant's motion relied on Fed.R.Cr.P. 16, the Jencks Act, and United States v. Harris, 543 F.2d 1247 (9th Cir. 1976). The government filed an opposition to defendant's motion. On May 11, 1979, a hearing on defendant's motion was had before Hon. William P. Copple, United States District Judge for the District of Arizona.

On May 18, 1980, the district court filed an order dismissing with prejudice the indictment against defendant Griffin. The district court reasoned:

Striking the testimony of all 22 witnesses, or even those the government states it intends to call, may eliminate the Jencks Act problem but not the Brady problem. In the view of the court, case law requires dismissal as the proper sanction. U. S. v. Harris, supra; U. S. v. Harrison, 524 F.2d 421 (D.C. Cir. 1975); U. S. v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971).

It is hoped the United States will appeal this decision.

The issue presented for determination by this Court is whether the district court erred in dismissing the indictment prior to trial because government investigators destroyed their handwritten rough notes of interviews with various persons after incorporating the information contained therein into formal interview reports.

I. Issue of Producibility of Rough Interview Notes Under the Jencks Act

In general, the Jencks Act, 18 U.S.C. § 3500 prohibits the pre-trial discovery of statements made by prospective government witnesses. ¹ However, after such a witness testifies at trial, the Act requires that the government produce upon demand any available statement made by the witness which relates to the subject matter of such witness's testimony at trial. The Act narrowly defines "statements" as: (1) writings made by the witness and "signed or otherwise approved or adopted" by him, or (2) accounts which are "a substantially verbatim recital" of the witness's oral statements "recorded contemporaneously with the making of such oral statement." 18 U.S.C. § 3500(e).

In United States v. Harris, 543 F.2d 1247 (9th Cir. 1976), we held that the F.B.I. must preserve the original notes taken by agents during interviews with prospective witnesses to enable the court to play their proper role in determining what evidence must be produced pursuant to the Jencks Act. ² Where such rough interview notes have been discarded prior to trial, the district court must determine what sanctions, if any, should be applied to remedy such nonproduction. Such a determination necessarily must begin with consideration of whether such rough notes are deemed to constitute Jencks Act "statements."

Whether original notes can be considered "statements" under the Jencks Act depends, first, on whose statement allegedly is contained therein; that is, against whose testimony at trial they could be used as impeachment material. Thus, on the one hand, the district court must determine whether the investigator's rough notes should be considered a Jencks Act "statement" of an interviewee, who at trial may testify as a government witness. If Compliance Officer Logan's pretrial testimony, that her rough notes of the interviews were neither read to each interviewee nor adopted or approved by any of them, is not disputed, then her rough notes cannot be "statements" of the interviewees under § 3500(e)(1), which requires that a written statement be "signed or otherwise approved." Likewise, if Officer Logan's testimony is unrefuted, the rough notes could not be Jencks Act statements of the interviewees under § 3500(e)(2) since they are not verbatim recitals of the interviewees' oral statements. See United States v. Bernard, 623 F.2d 551, 558 n.21 (9th Cir. 1980) (as revised). In other words, unless one or more of the interviewee-witnesses offered by the government at trial testifies that his interview was transcribed verbatim into the compliance officers' rough notes or that the notes were read back and approved, the rough notes, some of which were destroyed,...