U.S. v. Munoz Franco

• Decision Date: 30 October 2000
• Docket Number: No. CR. 95-0386(DRD).,CR. 95-0386(DRD).
• Citation: 123 F.Supp.2d 45
• Court: U.S. District Court — District of Puerto Rico
• Parties: UNITED STATES of America, Plaintiff, v. [1] Lorenzo MUÑOZ FRANCO, [2] Francisco Sanchez Aran, [3] Ariel Gutierrez Rodriguez, [4] Wilfredo Umpierre Hernandez, [5] Enrique Gutierrez Rodriguez, [6] Rafael Dominguez Wolff, Defendants.

123 F.Supp.2d 45

UNITED STATES of America, Plaintiff, v. [1] Lorenzo MUÑOZ FRANCO, [2] Francisco Sanchez Aran, [3] Ariel Gutierrez Rodriguez, [4] Wilfredo Umpierre Hernandez, [5] Enrique Gutierrez Rodriguez, [6] Rafael Dominguez Wolff, Defendants.

No. CR. 95-0386(DRD).

United States District Court, D. Puerto Rico.

October 30, 2000.

On Motions to Dismiss, November 6, 2000.

COPYRIGHT MATERIAL OMITTED

Maria Dominguez-Victoriano, Edna C. Rosario-Munoz, Jorge E. Vega-Pacheo, U.S. Attorney's Office Dist. of P.R., Hato Rey, PR, Desiree Laborde-Sanfiorenzo, U.S. Attorney's Office, San Juan, PR, for plaintiff.

Harry Anduze-Montano, San Juan, PR, Jorge L. Arroyo-Alejandro, San Juan, PR, Graham A. Castillo-Pagan, Hato Rey, PR, Francisco M. Dolz-Sanchez, San Juan, PR, Andres Guillemard-Noble, Nachman, Guillemard & Rebollo, San Juan, PR, Michael S. Pasano, Zuckerman Spaeder Taylor & Evans, Miami, FL, Ricardo L. Rodriguez-Padilla, San Juan, PR, David W. Roman, San Juan, PR, Joseph J. Rucci, Rucci, Burnham, Carta and Edelberg LLP, Darien, CT, for defendants.

Kevin G. Little, David Efron Law Offices, Rio Piedras, PR, for intervenor-plaintiff.

Alberto J. Perez-Hernandez, Law Offices of David Efron, Rio Piedras, PR, for movant.

OPINION & ORDER

DOMINGUEZ, District Judge.

A hearing is scheduled for October 30, 2000, to determine the producibility of certain 302 Federal Bureau of Investigation ("F.B.I.") Records as "statements" under the Jencks Act. See 18 U.S.C.A. § 3500, et seq. This order is to advise the parties as to the procedure and scope of the hearing.

The Court commences with an overview of the statute. The United States is required in criminal cases to produce at trial to the defense after a witness has testified any statement made by the witness as to the subject matter testified. See 18 U.S.C.A. § 3500(a) & (b). Should there be part of the statements not related to the subject matter, the Court is to excise the non-pertinent sections after examining the statement in camera. See 18 U.S.C.A. § 3500(c). The term "statement" within the Act is defined as "a written statement made by said witness and signed or otherwise adopted or approved by him."¹ See 18 U.S.C.A. § 3500(e)(1). A "statement" is also "a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement," 18 U.S.C.A. § 3500(e)(2) or "a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury." 18 U.S.C.A. § 3500(e)(3).

The United States has submitted a series of 302 F.B.I. Forms, hereinafter referred to as "302 Forms," written by F.B.I. agents, a majority of which narrate facts purportedly provided by government witnesses. The United States, however, alleges that the vast majority of the 302 Forms are not statements because they are not a verbatim account of the witness statements, see United States v. Newton, 891 F.2d 944, 953-54 (1st Cir.1989) or because the statements, as expressed in the 302 Forms are not signed or otherwise adopted by the witnesses. See United States v. Neal, 36 F.3d 1190, 1198-99 (1st Cir.1994), cert. denied sub nom., Kenney v. United States, 519 U.S. 1012, 117 S.Ct. 519, 136 L.Ed.2d 407 (1996); United States v. Gonzalez-Sanchez, 825 F.2d 572, 586-87 (1st Cir.1987).

Although the Court respects the position of the United States as to the alleged non-applicability of the Jencks Act to the 302 Form documents, the Court would incur in error by merely accepting the "government's word" that the requested material is not covered by the statute. See United States v. Peters, 625 F.2d 366 (10th Cir.1980). Whenever there is a doubt as to the production of statements pursuant to the Jencks Act, there exists a presumption that an in camera inspection hearing is required for the Court to inspect the documents and to determine its nature. See United States v. Neal, 36 F.3d 1190, 1198 (1st Cir.1994), cert. denied sub nom., Kenney v. United States, 519 U.S. 1012, 117 S.Ct. 519, 136 L.Ed.2d 407 (1996); United States v. Carbone, 798 F.2d 21 (1st Cir.1986). Concomitantly, should the government be in doubt whether statements are requested to be produced under the Jencks Act, 18 U.S.C.A. § 3500, et seq., the government should deliver them to the judge for his inspection, rather than risk censure, mistrial or later reversal by withholding. See United States v. Principe, 499 F.2d 1135 (1st Cir.1974). The procedure used by the Court is non-adversarial in nature. See Campbell v. United States, 365 U.S. 85, 95, 81 S.Ct. 421, 427, 5 L.Ed.2d 428 (1961); United States v. Strahl, 590 F.2d 10, 14 (1st Cir.1978), cert. denied, 440 U.S. 918, 99 S.Ct. 1237, 59 L.Ed.2d 468 (1979); Ogden v. United States, 323 F.2d 818 (9th Cir.1963), cert. denied, 376 U.S. 973, 84 S.Ct. 1137, 12 L.Ed.2d 86 (1964); Bary v. United States, 292 F.2d 53 (10th Cir.1961); United States v. Hilbrich, 232 F.Supp. 111 (N.D.Ill.1964); aff'd, 341 F.2d 555 (7th Cir.), cert. denied, 381 U.S. 941, 85 S.Ct. 1775, 14 L.Ed.2d 704, reh'g denied, 382 U.S. 874, 86 S.Ct. 14, 15 L.Ed.2d 117 (1965), reh'g denied, 384 U.S. 1028, 86 S.Ct. 1906, 16 L.Ed.2d 1047 (1966).

The specific procedure that the Court undertakes in order to determine the production of the documents under the Jencks Act rests within the sound discretion of the Court. See United States v. Lamma, 349 F.2d 338 (2nd Cir.), cert. denied, 382 U.S. 947, 86 S.Ct. 407, 15 L.Ed.2d 355 (1965); Hilbrich, 232 F.Supp. at 111. Notwithstanding, there seems to be preference for the holding of an in camera inspection.² See Goldberg, 425 U.S. at 109, 96 S.Ct. at 1347 (1976); United States v. Del Toro Soto, 676 F.2d 13, 17 (1st Cir.1982); United States v. Cole, 617 F.2d 151 (5th Cir.1980); Anderson v. United States, 788 F.2d 517 (8th Cir.1986); United States v. Roseboro, 87 F.3d 642 (4th Cir.1996), cert. denied, 519 U.S. 1060, 117 S.Ct. 694, 136 L.Ed.2d 617 (1997).

Whenever there is a question as to whether a document is a producible statement, the trial judge should on his own motion summon the government agent who prepared the document to testify, or require the government to produce him to determine by extrinsic evidence the production or non-production of the document. See Campbell, 365 U.S. at 96, 81 S.Ct. at 427 ("The circumstances of this case clearly required the judge to call Toomey [F.B.I. Agent] on his own motion or require the government to produce him.").

The Court should avoid calling the witness unless absolutely necessary:

"Instead of calling [the F.B.I. Agent] or having the Government call him, the trial judge fell into further error by relying upon [the witness] to supply the information he sought.... Reliance upon the testimony of the witness based upon his inspection of the controverted document must be improper in almost any circumstances .... Similarly, [the witness] should not have been allowed to inspect the Interview Report, since there necessarily inhered in the witness' inspection of the paper the obvious hazard that his self-interest might defeat the statutory design of requiring the Government to produce papers which are `statements' within the statute."

Campbell, 365 U.S. at 96-97, 81 S.Ct. at 427-28.

Since, "inspection [by the government witness] of the controverted document must be improper in almost any circumstance" prior to determination of producibility under the Jencks Act and the witness "should not have been allowed to inspect the Interview Report," the Court concludes that it is improper for a witness to be shown the document at trial in order for him then to decide whether or not he had or will adopt the statement. Campbell, 365 U.S. at 97, 81 S.Ct. at 428. Notwithstanding, circumstances may require the court in order to comply with its statutory duty to summon not only the F.B.I. Agent, but also the witness, however, the document should not be shown to the witness. See Campbell v. United States, 373 U.S. 487, 83 S.Ct. 1356 (1963); Williams v. United States, 328 F.2d 178 (D.C.Cir.1963).

"For the proper conduct of a hearing for a determination of the producibility of a government agent's report of an interview [302 Forms] with a government witness, it is necessary for the trial court to call the government agent who made the report, or the government witness who was interviewed or both to testify as to the status of the report."

C.P. Jhong, Annotation, Proper procedure for determining whether alleged statement or report of government witness should be produced on accused's demand, under Jencks Act (18 U.S.C. § 3500), 1 A.L.R.FED. 252, (1969) (citing Dennis v. United States, 346 F.2d 10 (10th Cir.1965), rev'd on other grounds, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966)).

The Court in determining the producibility of the documents should also hear arguments of counsel to assist the court in reaching the determination. Campbell v. United States, 365 U.S. at 95, 81 S.Ct. at 427.³ In determining whether the statement constitutes a verbatim account, the Supreme Court has stated that long hand notes that were "complete with respect to pertinent information" complies with the statutory requirement and that a reciting by the agent to the witness "the substance of the account" in the notes is sufficient should the witness agree or confirm the same, thereby adopting or approving the statement. Campbell, 373 U.S. 487, 83 S.Ct. 1356 (1963). On the other side of the spectrum "discussions of the general substance that the witness has said do not constitute adoption." Goldberg, 425 U.S. at 111 n. 19, 96 S.Ct. at 1348 n. 19 (1976); see also United States v. Gonzalez-Sanchez, 825 F.2d at 587 (An occasional question to the witness if the agent had "gotten it right" is insufficient.). The Court further notes that in Campbell I at 365 U.S. at 95, 81 S.Ct. at 426, absolute verbatim...