US v. Mannarino
| Decision Date | 11 January 1994 |
| Docket Number | Crim. No. 92-10049-WD. |
| Citation | 850 F. Supp. 57 |
| Parties | UNITED STATES of America, Plaintiff, v. Guy MANNARINO, et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
COPYRIGHT MATERIAL OMITTED
William F. Sinnott, Paula DeGiacomo, Asst. U.S. Attys., U.S. Atty.'s Office, Boston, MA, for U.S.
Max D. Stern, Stern & Shapiro, Boston, MA, for defendant Guy C. Mannarino.
John E. Wall, Wall & Shaughnessy, Boston, MA, for defendant Andrew Schena.
George C. McMahon, North Quincy, MA, for defendant Anthony J. Damore.
MEMORANDUM AND ORDERS
Misconduct by the state police officer delegated with debriefing and supervising the federal government's principal witness in this case resulted in the destruction of a narrative history of criminal activity the witness had prepared. The defendants have made several alternative requests for relief from this misconduct. Their requests require that I determine whether the witness's handwritten narrative history was Jencks Act material. I find that it was. Having made that finding, I must calibrate a remedy. I do so in a setting which presents yet again a pattern of sustained and obdurate indifference to, and unpoliced subdelegation of, disclosure responsibilities by the United States Attorneys Office in this District. I will order a new trial prior to which the defendants will have the opportunity for a pretrial deposition of the government's principal witness and the state police officer who debriefed him and then disposed of the witness's narrative history. Through such a remedy, it may be possible to approximate a reconstruction of what the government through its agents has destroyed.
Guy Mannarino, Anthony Damore, and Andrew Schena were convicted by a jury of violating 21 U.S.C. §§ 846, 841(a)(1), through a conspiracy to possess with the intent to distribute marijuana. During trial, Mannarino moved to dismiss the indictment, or for other appropriate relief, on the basis of the government's violation of the Jencks Act, 18 U.S.C. § 3500. After their conviction, Mannarino and Damore sought continued release pending sentence.1 Mannarino's counsel maintained that the purported government violation of the Jencks Act provided the necessary exception to the requirements of 18 U.S.C. § 3143(a), which mandates that those convicted of drug felonies shall be detained until execution of sentence unless "the judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted." 18 U.S.C. § 3143(a)(2)(A)(i).
After an evidentiary hearing, I found that defendants Mannarino and Damore had met their burden of proof under section 3143(a),2 and were entitled to avoid detention because I was likely to grant relief in the nature of a new trial.3
Having made a preliminary ruling that the United States violated the requirements of the Jencks Act,4 I now turn — with the benefit of further briefing and argument by the parties following the submission of post-trial motions, extended reflection and further illumination from case law generated by the Court of Appeals — to examine more completely the nature of this apparent violation, and to determine what sanction is appropriate as a remedy.
At trial, the prosecution hinged on the testimony of Ronald W. Jacobsen, a paid government informant.5 The existence and destruction of a statement arguably within the Jencks Act was first revealed during cross-examination of Jacobsen. Jacobsen testified that, some time after his arrest in February, 1991, and after he agreed to cooperate, he had written out his criminal history in longhand, and provided that record to a Maine drug enforcement officer.6 When Jacobsen composed his narrative, he was already a paid informant of the federal government,7 and consulted frequently, sometimes daily, with Maine law enforcement officers, local police, and agents of the DEA.8
Paul Seitz, a Maine officer who served as Jacobsen's monitor in the informant's effort to collect evidence against drug traffickers, received Jacobsen's criminal history narrative, and used it as one basis for a report of his own labelled an "Overview of Confidential Informant" ("Intelligence Debriefing" or "overview").9 Seitz then shredded Jacobsen's original narrative.10
Following Jacobsen's arrest in February, 1991, Seitz reported directly to his State superiors, in assisting Maine law enforcement officials develop various drug prosecutions from information and evidence provided by Jacobsen.11 Beginning in late February or early March, 1991, however, Seitz was also part of a task force consisting of the Maine Bureau of Intergovernmental Drug Enforcement (initially, the task force's directing arm), the DEA, the FBI, the IRS, and the Customs Service.12 By July, 1991, Maine's BIDE had ceded control of the task force to the DEA,13 and while BIDE refused to permit Seitz to be formally assigned to the DEA, the DEA continued to use Seitz to debrief Jacobsen, and to be "in charge of Mr. Jacobsen's overall cooperation."14
Seitz conducted the first interviews of Jacobsen, completed just after Jacobsen's arrest,15 and then continued to interview Jacobsen about his criminal history, the last interview occurring a year and a half later, in October, 1992.16 Seitz also advised Jacobsen how best to undertake particular informant tasks; and Seitz performed surveillance work with the DEA related to the crimes alleged against Mannarino, Damore, and Schena, taking custody of various pieces of evidence as Jacobsen obtained them.17
Seitz's second round of debriefings of Jacobsen began in late April, 1992, and from them Seitz prepared a "Preliminary Debriefing" (dated April, 1992) apparently in response to the defendants' inquiries regarding potential other bad acts evidence the government might seek to introduce.18 Although this series of meetings began in the spring of 1992, they were held only sporadically until October 1992, when Seitz and Jacobsen met several times a week to complete Seitz's final report, the Intelligence Debriefing.19 At the December 17, 1992 hearing, Special Agent Cunniff stated that he requested that Seitz conduct follow-up debriefings; and the April, 1992 debriefing was done at the specific request of the United States prosecutorial team.20 (Jacobsen sent a copy of the April, 1992 debriefing to the Maine DEA office by facsimile transmission on April 21, 1992.)21 Seitz then conducted his additional debriefings of Jacobsen as he thought necessary, to turn his April, 1992 Preliminary Debriefing into the final Intelligence Debriefing.22
Seitz had asked Jacobsen to prepare notes of his criminal history from which to prepare a final report; Jacobsen may have turned over such notes to Seitz as early as April, 1992,23 but by October, 1992, Jacobsen had written a substantial narrative history, which he provided Seitz, and which formed the basis of the Intelligence Debriefing.24 It was this history, comprised of handwritten notes by Jacobsen, that Seitz destroyed.25
In moving that this court dismiss the indictment, declare a mistrial, or strike Jacobsen's testimony, the defendants must show: (A) that Jacobsen's criminal history narrative was a "statement" as defined by the Jencks Act, 18 U.S.C. § 3500(e); (B) that the statement was in the possession of the United States; and (C) that the statement "relates to the subject matter as to which the witness has testified" on direct examination. 18 U.S.C. § 3500(b). If these three requirements are met, the court "shall order" the statement to be delivered to the defendant. 18 U.S.C. § 3500(b) & (c). If the United States refuses to produce the statement, or has destroyed it, which I conclude can mean, in the language of the statute, that it "elects not to comply" with the court's order, "the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared." 18 U.S.C. § 3500(d).
-A-
At the initial hearing on this matter, the government did not dispute that the defendants met the first requirement of demonstrating Jacobsen's criminal history narrative was a statement. In later briefing, however, the government focused on the definition of "statement" in the Jencks Act, and maintained that Jacobsen's narrative did not comport with it, for it was not, or so the government now claims, "a written statement made by the witness and signed or otherwise adopted or approved by him". 18 U.S.C. § 3500(e)(1). The government argues there is no evidence Jacobsen signed his holographic narrative; and his sessions with Seitz were undertaken in an effort to improve and expand the narrative's underlying statement (and, presumably, to remedy its defects, if any), so he should not be deemed to have adopted or approved his own narrative. Government's Memorandum in Opposition to Defendants' Motion for Judgment of Acquittal at 15-24; Government's Reply Memorandum at 1-6. This arid and formalistic argument is frivolous.
Courts, in reviewing possible Jencks Act violations, have refined the "adoption" requirement when passing on the destruction of agent notes which contain summaries or supposed quotations, rough or verbatim, from witnesses.26 When witnesses do not adopt such agent accounts as their own, then...
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Johnston v. Love
...and when it was discussed in the presence of one of the state prosecutors, she specifically objected to it. In United States v. Mannarino, 850 F.Supp. 57 (D.Mass.1994), the court held that a state agent's destruction of his notes of an interview with a key government witness which was requi......
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...— alternative" provided sufficiently comparable evidence to satisfy the defendant's constitutional rights. See United States v. Mannarino, 850 F.Supp. 57, 72-73 (D.Mass.1994) (where witness statement destroyed in violation of Jencks Act, court looks at Trombetta consideration of ability to ......
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U.S. v. Jones, Cr. No. 07-10289-MLW.
...aff'd 456 F.3d at 280-81. Prosecutorial misconduct concerning discovery in that period was also addressed in United States v. Mannarino, 850 F.Supp. 57 (D.Mass.1994). In Mannarino, the destruction of a witness' handwritten statement by a police officer was characterized as "present[ing] yet......