                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-23-1994

United States of America v. Ramos
Precedential or Non-Precedential:

Docket 93-1220




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          UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                   ___________

             Nos. 93-1220 and 93-1222
                   ___________


 UNITED STATES OF AMERICA

                 vs.

 ELIZABETH RAMOS, a/k/a Lisi

      Elizabeth Ramos,

                         Appellant No. 93-1220

                   ___________


 UNITED STATES OF AMERICA

                 vs.

 MARIA RAMOS, a/k/a "Donita"

      Maria Ramos,

                         Appellant No. 93-1222

                   ___________


  APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Criminal Nos. 90-00431-41 and 90-00431-40)

                   ___________


             ARGUED OCTOBER 25, 1993

BEFORE:   BECKER, ROTH and LEWIS, Circuit Judges.

              (Filed   June 23, 1994)
                            ___________

Thomas Q. Ciccone, Jr. (ARGUED)
1004 Sorrel Road
Huntingdon Valley, PA 19006

          Attorney for Appellant Elizabeth Ramos


Robert E. Madden (ARGUED)
Law Offices of Robert E. Madden
1401 Walnut Street
Suite 300
Philadelphia, PA 19102

          Attorney for Appellant Maria Ramos


Kristin R. Hayes
Robert A. Zauzmer (ARGUED)
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

          Attorneys for Appellee


                            ___________

                        OPINION OF THE COURT
                            ___________



LEWIS, Circuit Judge.

          We confront, once again, a problem which no court,

trial or appellate, should have to face in this circuit. Although

we have unequivocally required since 1977 that government agents

preserve rough notes of interviews with prospective trial

witnesses, see United States v. Vella, 562 F.2d 275 (3d Cir.

1977) (per curiam), this case presents yet another instance in

which notes were destroyed.   We do not reverse here because it is
apparent to us that the destroyed notes did not constitute Jencks

Act1 or Brady2 material and that the officers who destroyed them
acted in good faith.   Nonetheless, we take this opportunity to

emphasize that the fortuitous mix of legal and factual

circumstances which might excuse the destruction of notes, and

thus constrain us to leave a conviction undisturbed, are few and

far between.   We should not encounter such cases in the future.

                                  I.

           Appellants Maria and Elizabeth Ramos, mother and

daughter, were convicted of conspiracy to distribute cocaine and

cocaine base, possession of cocaine with intent to distribute and

related charges arising out of their involvement in a

family-operated drug ring.    The original indictment targeting the

Ramos family conspiracy charged 39 defendants, including three of

Maria Ramos's sons, with various drug distribution and possession

charges.   The majority of those charged began to cooperate, and a

superseding indictment followed.       Maria Ramos and Elizabeth Ramos

were first charged in the superseding indictment.

           At trial, the government's case against the Ramoses was

supported by the testimony of 13 co-conspirators who cooperated

pursuant to plea agreements.     The government agrees that "the

testimony of co-conspirators was the cornerstone of the evidence

against the defendants."     Government's brief at 12 n.2.

           Detective James Moffit and his partner, Sergeant Gerald

Logan, interviewed the cooperating witnesses and took notes

1
     18 U.S.C. § 3500.
2
     Brady v. Maryland, 373 U.S. 83 (1963).
during their initial debriefings, or "proffers," in late 1990 or

early 1991.   Both were long-time Philadelphia police officers who

began working with the federal government on this investigation

in the fall of 1989 in association with the federal Drug

Enforcement Administration ("DEA").   Logan described himself as

being "assigned" to the DEA; Moffit termed his position as one in

which he was "detailed" or "cross-designated" to the DEA.   App.

at 1060, 1277, 2263.   Both had been "sworn in" by the DEA and

were issued DEA credentials.   See app. at 1278.

          It is undisputed that Moffit and, apparently, Logan3

destroyed their notes after they prepared summary reports

("DEA-6s").   Appellants contend that this destruction mandated

suppression of the officers' testimony or a mistrial, both of

which the district court denied.   (Elizabeth Ramos had moved for

production of the notes prior to trial, while Maria Ramos first

raised the issue of the destruction of the notes during Moffit's

cross-examination at trial; it was her counsel who initially

moved for a mistrial and for suppression of Moffit's testimony.

See generally app. at 1285-96.)




3
Though not disputed, whether both officers or only Moffit
     destroyed notes remains unclear. Appellants focus on
     Moffit, but the government speaks in the plural, discussing
     the "officers' destruction of notes." Because both Moffit
     and Logan took notes, we will presume for purposes of this
     appeal that they were both involved in or at least aware of
     their destruction. The issue becomes material only when
     discussing their prior training, a point at which both
     appellants and the government seem content to rest on a
     discussion of Moffit's experience in any event. See infra
     note 7.
          The district court exercised jurisdiction over this

case pursuant to 18 U.S.C. § 3231, and we do so pursuant to 28

U.S.C. § 1291.   To the extent appellants contend that the

government's actions violated the rule set forth in Brady v.

Maryland, 373 U.S. 83 (1963), we review the district court's

legal conclusions de novo and its factual findings for clear

error.   United States v. Thornton, 1 F.3d 149, 158 (3d Cir.

1993); United States v. Hill, 976 F.2d 132, 134 (3d Cir. 1992).

We review the district court's denial of the appellants' motion

based on a claim of Jencks error for abuse of discretion.     Hill,

976 F.2d at 139.4

                               II.

          Criminal pretrial discovery is, of course, vastly

different from discovery in civil cases.   In contrast to the

wide-ranging discovery permitted in civil cases, Rule 16 of the

Federal Rules of Criminal Procedure delineates the categories of

information to which defendants are entitled in pretrial

discovery in criminal cases, with some additional material being

4
     In addition to the destruction of notes issue, appellants
     contend that their trial was marred by impermissible
     vouching because the government (1) referred to the
     truthfulness provisions of the cooperating witnesses' plea
     agreements, (2) elicited certain testimony from Moffit about
     accomplices who had not testified and referred to those
     persons in its closing argument, and (3) referred to non-
     testifying family members in its closing argument. The
     Ramoses also argue that in describing the plea agreements
     during its charge to the jury, the trial court improperly
     instructed that "it is up to the government to decide
     whether the defendant has cooperated and provided truthful
     information," thus buttressing the government's effort to
     bolster those witnesses' credibility. We find no merit to
     these contentions.
discoverable in accordance with statutory pronouncements and the

due process clause of the Constitution.    The Jencks Act requires

that after each government witness has testified on direct

examination, the government must produce to the defense "any

statement" made by the witness which relates to his or her

testimony.   In Brady, the Supreme Court held that due process

required that the government produce all "exculpatory" evidence,

which includes both "[m]aterials . . . that go to the heart of

the defendant's guilt or innocence and materials that might

affect the jury's judgment of the credibility of a crucial

prosecution witness."     United States v. Hill, 976 F.2d 132,

134-35 (3d Cir. 1992).    See Giglio v. United States, 405 U.S.

150, 154 (1972); United States v. Perdomo, 929 F.2d 967, 970 (3d

Cir. 1991) (citing Moore v. Illinois, 408 U.S. 786 (1972) ("[a]

valid Brady complaint contains three elements:    (1) the

prosecution must suppress or withhold evidence, (2) which is

favorable, and (3) material to the defense")).     See generally

United States v. Starusko, 729 F.2d 256, 260 (3d Cir. 1984).

          In United States v. Vella, 562 F.2d 275 (3d Cir. 1977)

(per curiam), we held that "the rough interview notes of F.B.I.

agents should be kept and produced so that the trial court can

determine whether the notes should be made available to the

[defendant] under the rule of Brady . . . or the Jencks Act."
Vella, 562 F.2d at 276.    See also United States v. Ammar, 714

F.2d 238, 259 (3d Cir. 1983) (extending rule to require

preservation of rough drafts of agents' reports); United States
v. Harris, 543 F.2d 1247 (9th Cir. 1976); United States v.
Harrison, 524 F.2d 421, 428-29 (D.C. Cir. 1975).      Since then, the

DEA has apparently adopted an internal policy requiring such

retention.    See government's brief at 34.    But we need not decide

whether our holding in Vella or the DEA's policy was followed in

this case; there is simply no question that they were not.

Instead, the only question before us is:      what should be done

about a clear failure to follow established rules and policy?

          In Vella and Ammar, we explained the requirement for

retaining rough notes of interviews in such unambiguous terms

that it would be futile to try to elucidate further here, for

what we meant cannot be stated more clearly.      See Ammar, 714 F.2d

at 259 ("the government must retain and, upon motion, make

available to the district court both the rough notes and the

drafts of reports of its agents to facilitate the district

court's determination whether they should be produced"); Vella,

562 F.2d at 276 ("rough interview notes should be kept and

produced").    Though we did not address the point directly,

arguably a case could be made that the unequivocal tone of our

decisions in these cases implied that we would reverse a

conviction where the government failed to abide its

responsibility (indeed, its legal obligation), no matter what

factors might have contributed to the destruction of notes or

drafts of reports.    Cf. United States v. Parker, 549 F.2d 1217
(9th Cir. 1977) (violation of Harris rule "might arguably" have

required reversal but for court's decision not to apply it

retroactively).    We have not previously stated explicitly whether
our holding in Vella established a per se rule or one which is

subject to a "good faith exception" or harmless error analysis.

            A careful reading of both Vella and Ammar, however,

suggests that we did not imply a rule which would automatically

preclude evidence based upon destroyed rough notes, without

regard for other considerations.    In Vella, without elaboration,

we stated that "in light of the other evidence in the record, as

well as the apparent good faith administrative decision which led

to the destruction of the notes, the error must be considered

harmless."   Vella, 562 F.2d at 276.   Similarly, in Ammar, we

refused to find an alleged Jencks Act violation in the

destruction of rough drafts because (1) the handwritten drafts

had not been shown to the agent's supervisor for adoption or

approval, and (2) the agent had testified that the rough drafts

and final reports were "substantially identical," so that even if

the drafts were Jencks Act material their destruction was

harmless.    Ammar, 714 F.2d at 259-60.   We see no reason not to

undertake a similar analysis in this case; the mere fact that

Vella and Ammar each established rules for the government to

follow does not suggest that we intended the automatic

suppression of evidence when those rules are violated.

            Our decision is informed by Arizona v. Youngblood, 488
U.S. 51 (1988), a case in which the Arizona police had failed to

preserve semen samples from the body and clothing of a victim of

a sexual assault.    The defendant contended that the failure to

preserve the evidence had deprived him of due process.    The

Supreme Court disagreed.    It concluded that although Brady "makes
the good or bad faith of the State irrelevant when [it] fails to

disclose to the defendant material exculpatory evidence[,] the

due process clause requires a different result when we deal with

the failure of the State to preserve evidentiary material of

which no more can be said than that it could have been subjected

to tests, the results of which might have exonerated the

defendant."   Youngblood, 488 U.S. at 57.   Thus, "unless a

criminal defendant can show bad faith on the part of the police,

failure to preserve potentially useful evidence does not

constitute a denial of due process of law."    Id. at 58.   See also

California v. Trombetta, 467 U.S. 479 (1984) (police officers'

failure to preserve breath samples which had been subjected to

Intoxilyzer testing did not violate the Constitution when (1) the

officers were acting "in good faith and in accord with their

normal practice," (2) the chances that preserved samples would

have been exculpatory were "extremely low," and (3) the

defendants had other means of challenging the Intoxilyzer

results); United States v. Deaner, 1 F.3d 192, 199-201 (3d Cir.

1993) (district court did not err in relying on the government's

evidence of the weight of marijuana plants in sentencing

defendant despite the government's destruction of the plants

without producing them to the defendant); United States v.
Barton, 995 F.2d 931 (9th Cir. 1993) (government's negligent

destruction of marijuana plants which possibly could have

disproved agents' statement in affidavit of probable cause held

not violative of due process absent a showing of bad faith on the

agents' part).
             Youngblood and Trombetta indicate that we should apply

a "good faith" test to destruction of evidence.     In this case,

since the appellants raised Brady and Jencks Act issues, we will

first proceed to analyze whether either Brady or Jencks Act

material might have been present in the destroyed notes.        Only

after ascertaining that it was not present will we move on to a

good faith analysis.5



                                  A.

             We may quickly dispose of the Jencks Act issues.    The

Jencks Act requires a court, upon motion of the defendant and

after direct examination of a government witness, to order the

United States to produce to the defense "any statement . . . of

the witness in [its] possession . . . which relates to the

subject matter as to which the witness has testified."     18 U.S.C.

§ 3500(b).    Leaving aside "statements" which are transcriptions

or recordings of grand jury testimony, a "statement" within the

meaning of the Jencks   Act is:
               (1) a    written statement made by said
          witness and   signed or otherwise adopted or
          approved by   him; [or]

                  (2) 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

5
     In one respect, the issue we address here is both simple and
     benign, for, as we discuss below, there is neither a
     reasonable possibility of the destroyed notes having
     contained Jencks Act or Brady material nor a scintilla of
     evidence tending to show that the destruction occurred in
     bad faith.
             contemporaneously with making of such oral
             statement.

18 U.S.C. § 3500(e).

             The destroyed rough notes fall into neither of these

categories.     They clearly do not constitute "statements" of the

cooperating co-conspirators, for they are neither "substantially

verbatim recitals" of what those witnesses said during their

proffers nor writings which they signed or otherwise adopted or

approved.6    United States v. Gross, 961 F.2d 1097, 1104-05 (3d
Cir. 1992); United States v. Starusko, 729 F.2d 256, 263 (3d Cir.
1984); cf. Palermo v. United States, 360 U.S. 343, 350 (1959) (it

would be "grossly unfair" to permit defendants to attempt to

impeach witnesses with statements "which could not fairly be said

to be the witness' [sic] own rather than the product of the

investigator's selections, interpretations and interpolations").

See United States v. Foley, 871 F.2d 235, 238-39 (1st Cir. 1989);

United States v. Ricks, 817 F.2d 692, 698 (11th Cir. 1987).    Nor

are they "statements" of Moffit or Logan, for they are by no

means "substantially verbatim" recitals of anything Moffit or

Logan said.     Further, unlike the DEA-6s themselves, they do not

constitute writings which the officers later adopted in any way.

See United States v. Griffin, 659 F.2d 932, 937-38 (9th Cir.




6
     See app. at 392-93, 570, 803, 1048-49, 1069, 1081, 1083,
     1491, 1530-31, 1633 (testimony of Moffit and various
     witnesses testifying pursuant to plea agreements). We may
     rely on such secondary evidence in determining whether
     missing or destroyed notes contained Jencks Act material.
     See United States v. Cole, 634 F.2d 866, 869 (5th Cir. 1981)
     (per curiam).
1981).   Accordingly, we conclude that the destroyed notes did not

constitute Jencks Act material.

                                  B.

             The Brady issue is more complex.   In Vella, we relied

on United States v. Harrison, 524 F.2d 421 (D.C. Cir. 1975), in

requiring preservation of rough notes.      The Harrison court

explained:
               It seems too plain for argument that
          rough notes from any witness interview could
          prove to be Brady material. Whether or not
          the prosecution uses the witness at trial,
          the notes could contain substantive
          information or leads which would be of use to
          the defendants on the merits of the case. If
          the witness does testify, the notes might
          reveal a discrepancy between his testimony on
          the stand and his story at a time when the
          events were fresh in his mind. The
          discrepancy would obviously be important to
          use in impeaching the witness' [sic]
          credibility. The possible importance of the
          rough notes for these purposes is not
          diminished in cases where the prosecutor
          turns over to the defense the . . . reports.
          The . . . reports contain the agent's
          narrative account of the witness's statement,
          prepared partly from the rough notes and
          partly from the agent's recollection of the
          interview. Although the agents are trained
          to include all the pertinent information in
          the . . . report, there is clearly room for
          misunderstanding or outright error whenever
          there is a transfer of information in this
          manner. In the best of good faith, the
          statement . . . may, to some degree at least,
          reflect the input of the agent. In such a
          situation, the information contained in the
          rough notes taken from the witness himself
          might be more credible and more favorable to
          the defendant's position.

Id. at 427-28 (footnote omitted).      If, as some believe, our

ability to know something is largely determined by that to which
we have been exposed and by the varying capacities of our sensory

perception and reasoning skills, then Harrison essentially states

the obvious:   it is impossible to know for certain whether or not

rough notes which have been destroyed would have been

exculpatory, or whether their exculpatory nature would have been

apparent to the agents at the time of the destruction, because

they are no longer here for us to see, to analyze, to interpret.

Whatever truths might have been gleaned from them, and whatever

contributions these truths might have offered to the doing of

justice, were destroyed along with the notes themselves.     Thus,

if the evil sought to be eliminated by requiring preservation of

notes was the uncertainty about whether the notes would have

contained Brady material, then excusing their destruction as long

as it was done in good faith would seem to undercut both the rule

and its purpose.   It is difficult to imagine, for example, how a

court could determine whether the exculpatory nature of an

agent's notes would have been apparent to the agent before

destruction without first reviewing the notes.   Similarly,

without knowing what inconsistencies, if any, the notes

contained, a court will undoubtedly find it difficult (if not

impossible) to decide whether the defendant seeking production

had other opportunities to make the same arguments he or she

could have made with the notes.

          Nevertheless, the mere possibility that the destroyed

notes might have included Brady material, without more, is
insufficient to implicate such concerns.   We think it unwise to

infer the existence of Brady material based upon speculation
alone.   Instead, we favor the approach taken by the United States

Court of Appeals for the Ninth Circuit in Griffin, that "unless

[a] defendant is able to raise at least a colorable claim that

the investigator's discarded rough notes contained evidence

favorable to [him] and material to his claim of innocence or to

the applicable punishment -- and that such exculpatory evidence

has not been included in any formal interview report provided to

defendant -- no constitutional error of violation of due process

will have been established."     Griffin, 659 F.2d at 939.       At the

risk of pushing understatement to the brink of rationality, we

acknowledge, as did the court in Griffin, that attempting to make

such a showing by examining the agents and interviewees or using

other documentary evidence is "not as ideal" as examination of

the notes themselves would be.        To conclude otherwise, however,

would be to read Brady too broadly, requiring "the government to

preserve all material even arguably related to the criminal

transaction."     Id. at 939 & n.7.

          In this case the defendants have offered nothing beyond

their speculation that the agents' notes might have contained

Brady material.     In response, the government indicated that

Moffit had incorporated everything contained within the notes

into the DEA-6s.     App. at 1448, 1452.     Cf. app. at 1282.    There

was no suggestion by anyone in a position to know (that is, the

witnesses or the officers) that the DEA-6s differed in any way

from the oral proffers that would have been reflected in the

destroyed notes.    Further, at trial the district court examined

all the notes that had been preserved from later witness proffers
and ordered production of about 20 pages.     These pages did not

reveal any Brady material and defense counsel chose not even to

cross-examine Moffit with regard to them.     (While we draw no firm

conclusion here, this at least tends to indicate that the chances

of damaging material existing in the destroyed notes were

somewhat remote, assuming the officers were consistent

throughout, both in their method and practice of transcribing

their written notes.)   Appellants have not raised a colorable

claim that the destroyed notes contained exculpatory material

that was material to their defense and was not included within

the DEA-6s.   Therefore, we conclude that the destruction of the

notes did not constitute a Brady violation.     Cf. United States v.

Michaels, 796 F.2d 1112, 1116 (9th Cir. 1986); United States v.

American Radiator & Standard Sanitary Corp., 433 F.2d 174, 202

(3d Cir. 1970) (both holding that defendants' mere speculation

that Brady material might be present is insufficient to permit

perusal of government files).
                                 C.

          It is undisputed that Moffit and Logan destroyed their

notes in good faith.    They are Philadelphia police officers, not

DEA agents, and Moffit testified that the federal practice of

retaining records of a cooperating-witness interview is

"completely different" from the Philadelphia police department's.

App. at 1065-66.    In the Philadelphia police department, at least

at the time the events with which we are concerned took place,

the officers "consider [notes] sensitive material" that they

"don't leave . . . around at all."    Id. at 1106.   Philadelphia

police officers retain the reports they draft based upon their

notes but destroy the notes.   Id. at 1108-09.

          Moreover, Moffit received no special training and no

orientation for his work with the DEA.   App. at 1278.7   He was

instructed as to the "general mechanics" of DEA-6s but was not

told to preserve the notes he used in compiling the DEA-6s.    Id.

at 1280-83, 1285.   Moffit testified that he believed he was

following office procedure because he saw others destroying

notes.   Id. at 1283.

          We are well aware of the critical contribution the DEA

and its agents make to the national effort to control illegal

drug trafficking and to combat illegal drug use.     Indeed, we have

not lost sight of the fact that the issue before us is derived

7
The initial Ramos indictment was the first federal indictment
     Moffit had assisted in procuring. App. at 1064. As noted
     previously, both appellants and the government have
     generally relied on Moffit's testimony regarding the
     training he received as representing the training both
     officers received. See supra note 3.
precisely from that laudable and important campaign.        But we

cannot approve of the way in which Moffit and, presumably, Logan

were trained.    It is regrettable that the DEA failed to instruct

officers affiliated with it to preserve the rough notes taken at

proffer sessions, particularly after we have made it abundantly

clear that it is required to do so and its own internal

guidelines mandate that it do so.       Our affirmance in this case is

in no way intended to encourage or to permit lax compliance with

the dictates of due process under the guise of good-faith

ignorance.    To the contrary, we expect more of the government.

And if there were evidence indicating a deliberate or, under

circumstances not present here, even a negligent contravention of

the Vella rule, we would very likely reach a different

conclusion.

             As we have noted, however, in this case it seems clear

that the officers (who, significantly, were only loosely

connected to the DEA) were entirely unaware that they should

preserve their notes, and that their past experience indicated

that they were to destroy them.     The defense has produced no

evidence to the contrary, relying instead on speculation and the

argument that contravention of the Vella rule automatically
constitutes bad faith.     See E. Ramos's brief at 18-23.    We cannot

rest our decision in this case on such conclusory allegations,

and for the reasons discussed above, we decline the invitation to

fashion a per se rule in this area.

                                 III.
          In conclusion, because the destroyed notes did not

constitute Jencks Act materials, there is nothing beyond

speculation to indicate that they contained Brady material, and

the officers clearly acted in good faith in destroying them, we

will affirm the district court's denial of appellants' motion for

suppression or, in the alternative, a mistrial.   The judgment of

conviction is affirmed.
