UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-11208
UNITED STATES OF AMERICA,
Plaintiff-Appellee
VERSUS
CARMEN RAMIREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
May 3, 1999
Before HIGGINBOTHAM, DUHÉ, and DeMOSS, Circuit Judges
JOHN M. DUHÉ, JR., Circuit Judge:
A jury convicted Carmen Ramirez (“Ramirez”) of one count of
conspiracy to distribute heroin in violation of 21 U.S.C.A. § 846
(West 1999). Ramirez raises two issues on appeal. First, Ramirez
argues the district court erred in denying her motion for a
mistrial or alternatively to strike the government’s two main
witness’ testimony on the grounds that the government’s failure to
produce tapes of conversation between the two witnesses violated 18
U.S.C.A. § 3500 (“Jencks Act”). Second, Ramirez argues the
district court erroneously excluded the sworn affidavit of FBI
special agent James Kendall when Ramirez sought to introduce it as
an admission of a party-opponent. For the following reasons, we
vacate and remand in part for a hearing concerning the government’s
culpability regarding the tapes and affirm the district court’s
evidentiary ruling.
I. BACKGROUND
The government alleged that Ramirez conspired to smuggle
heroin into the federal prison in Seagoville, Texas in which her
husband was incarcerated. The government based its case primarily
on the testimony of two witnesses: (1) Ronald Secrease
(“Secrease”), a special investigations supervisor at the prison;
and (2) Wendell Blount (“Blount”), a Seagoville inmate serving time
for a white-collar tax offense. Blount acted as a government
informer throughout the transaction constantly updating Secrease
about the details of the impending transaction through written
notes and telephone calls. The prison tapes outgoing phone calls
from the prisoners on large reels. When Ramirez discovered through
cross-examination of Blount at trial that telephone updates from
Blount to Secrease were routinely taped, she moved the court to
order the government’s disclosure of the tapes. The next day the
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government produced recordings of two conversations between Blount
and Secrease but reported that the Bureau of Prisons destroyed the
tapes containing the remaining conversations through its routine
procedures. The calls the government produced were available only
through coincidence; because they were on the same tapes the U.S.
Attorney subpoenaed from the Bureau of Prisons containing phone
calls from Mr. Ramirez inside the prison to Mrs. Ramirez. Ramirez
moved for a mistrial and alternatively to strike Blount and
Secrease’s testimony under the Jencks Act due to the unavailability
of the tapes for cross-examination. The court denied Ramirez’s
motion.
Ramirez also sought to introduce the sworn affidavit of FBI
Special Agent James Kendall as the admission of a party-opponent
under Fed. R. Evid. 801(d)(2)(B). In his affidavit, Kendall
affirmed that Blount said Mrs. Ramirez had the heroin at her home.
The district court prevented Kendall from testifying as a defense
witness earlier in the trial because the defense failed to properly
subpoena him as a government agent. The district court excluded
Kendall’s affidavit because it felt Ramirez was attempting to
introduce evidence that was previously properly excluded. Ramirez
appeals.
II. DISCUSSION
A. Jencks Act
Ramirez argues the district court erred in not declaring a
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mistrial or striking the testimony of Secrease and Blount as a
sanction for the government’s non-disclosure under the Jencks Act.
The government argues it was not required to disclose the material
under the Jencks Act because it did not know of the existence of
the taped conversations until after they were erased.1
We review a district court’s decision concerning the Jencks
Act for clear error. See United States v. Martinez, 87 F.3d 731,
734 (5th Cir. 1996). “The trial court’s finding will constitute
clear error where such finding either rests upon an incorrect rule
of law or is inconsistent with the facts upon which it purports to
rests.” Id. Even when a violation is found, the failure to
produce prior statements is subject to a harmless error analysis.
See United States v. Martinez, 151 F.3d 384, 391 (5th Cir. 1998).
In the context of the Jencks Act, we must strictly apply the
harmless error analysis review and determine whether the error
itself had a substantial influence on the judgment in addition to
determining whether there was sufficient evidence to support the
conviction. See United States v. Keller, 14 F.3d 1051, 1054-55
(5th Cir. 1994).
The Jencks Act requires the United States to disclose a
prior statement of a witness in its possession relating to the
subject matter of that witness’ testimony. See 18 U.S.C.A. § 3500
1
The government does not contend that the recordings were not
“statements” as defined in the Jencks Act. Ramirez concedes the
tapes were destroyed before she was indicted and that the
government did not intentionally destroy the tapes.
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(West 1985). The definition of “statement” includes “a . . .
recording . . . which is a substantially verbatim recital of an
oral statement made by said witness and recorded contemporaneously
with the making of such oral statement.” Id. The United States
must disclose the information after the witness’ direct examination
testimony. Id. If the United States fails to disclose, the court
must either strike the testimony of the witness or declare a
mistrial.2 Id.
The district court denied a mistrial and refused to strike
Blount and Secrease’s testimony on two grounds. First, the
district court found that the tapes were not in the “possession of
the United States”, as defined in the Jencks Act, relying on United
States v. Trevino, 556 F.2d 1265 (5th Cir. 1977). Second, the
district court held it may “apply such remedy as justice requires”
because the government’s failure to produce the tapes was through
its negligence or good faith oversight relying on United States v.
2
The text of the Jencks Act provides:
(b) After a witness called by the United States has testified
on direct examination, the court shall, on motion of the
defendant, order the United States to produce any statement
(as hereinafter defined) of the witness in the possession of
the United States which relates to the subject matter as to
which the witness has testified.
(d) If the United States elects not to comply with an order of
the court under subsection (b) or (c) hereof to deliver to the
defendant any such statement . . . 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.A. § 3500 (West 1985)
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Taylor, 13 F.3d 986, 990 (6th Cir. 1994), United States v. Pope,
574 F.2d 320, 325-26 (2nd Circuit 1978), and United States v.
Polizzi, 500 F.2d 856 (9th Cir. 1974). The district court also
relied on United States v. Beasley, 576 F.2d 626 (5th Cir. 1978)
and United States v. Miranda, 526 F.2d 1319, 1328 (2nd Cir. 1975)
holding that where the prosecution acted in good faith the court
may determine the appropriate sanctions by weighing the
government’s culpability against the amount of prejudice resulting
to the defendant. The district court found no culpability on the
government’s part and no prejudice to Ramirez as a result of the
destruction of the tapes.
1. “Possession of the United States”
In Trevino, the court held that a presentence report was not
“in the possession of the United States” for Jencks Act purposes
when it is in the possession of a probation officer. See id. at
1271. However, the court also stated that
[o]ur decision denying discovery of the presentence
report of a government witness under Brady, the Jencks
Act, and Rule 16 is not to be read as a comprehensive
survey of the boundaries of required disclosure under
those provisions . . . Were we considering some type of
report held by an arm of the government other than the
probation officer, an investigative agency, for example
different questions would be presented, those concerning
the prosecutor’s duty to disclose material not
technically within his possession but to which he has
ready access.
Id. at 1272. The Jencks Act is not restricted to statements “in
the hands of, or known to, the particular prosecuting attorney
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assigned to the case, the U.S. Attorney’s office, the Criminal
Section of the Justice Department, or even the entire Justice
Department. Its order is unqualified.” United States v. Beasley,
576 F.2d 626, 631 (5th Cir. 1978); see United States v. Bryant, 439
F.2d 642, 650 (D.C. Cir. 1971) (holding the duty of disclosure
under the Jencks Act “affects not only the prosecutor, but the
Government as a whole, including its investigative agencies.”)
Secrease, an employee of the Bureau of Prisons, initiated and
was constantly involved in investigating the smuggling of drugs
into the Seagoville institution. There is no doubt that the Bureau
of Prisons was part of the investigative team regarding this
transaction. The tapes were in the possession of the Bureau of
Prisons until they were taped over, and therefore they were in the
“possession of the United States” as defined by the Jencks Act.
The district court erred in finding otherwise.
2. Good Faith Exception
The district court also erred in excusing the government’s
failure to produce the tapes due to its good faith oversight or
negligence. While other circuits have fashioned such an exception,
see Taylor, 13 F.3d at 990; Pope, 574 F.2d at 325, we have declined
to follow this route. “[U]nder the Jencks Act, we consider
results, not motive.” Beasley, 576 F.2d at 627. “Unless a non-
disclosure was harmless error, reversal is required even where the
prosecution has acted in good faith.” United States v. McKenzie,
768 F.2d 602, 609 (5th Cir. 1985).
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However, in the case of lost or destroyed evidence, we apply
a separate analysis. In United States v. Bryant, 439 F.2d 642
(D.C. Cir. 1971) the court formulated a new approach for lost or
destroyed evidence cases under the Jencks Act, Brady and Rule 16
because of the unique circumstances facing a court in that
situation. “[I]n these cases we are entirely in the dark.” Id. at
648. Because the evidence is no longer available we have no idea
whether it would have been favorable to the Defendant. As in this
case, the government’s case in Bryant also essentially relied on
the testimony of one witness. A government agent recorded the
conversations of the witness and then “misplaced” the tape because
he deemed it unimportant to the case.3 The court held that Jencks
Act sanctions should be imposed in cases of bad faith and negligent
suppression of evidence but not in the case of good faith loss by
the government. Id. at 651. Because the court found the record on
appeal inadequate, it remanded to the trial court to “weigh the
degree of negligence or bad faith involved, the importance of the
evidence lost, and the evidence of guilt adduced at trial in order
to come to a determination that will serve the ends of justice.”
Id. at 653. We have adopted this approach when deciding lost and
3
The court in Bryant was faced with the same situation as are we
in choosing between affirming the conviction or dismissing the
indictment. “A new trial would be simply a repetition of the first
trial, similarly infected by non-disclosure” of Jencks material,
and a new trial without Blount’s and Secrease’s testimony would be
pointless, since without their testimony there would be no case.
Id. at 653.
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destroyed evidence cases. See Johnston v. Pittman, 731 F.2d 1231,
1234 (5th Cir. 1984); Armstrong v. Collier, 536 F.2d 72, 78 (5th
Cir. 1976); United States v. Rojas, 502 F.2d 1042, 1044 (5th Cir.
1974).
There is little evidence in the record concerning the degree
of the government’s culpability in failing to disclose the tapes.
However, the government’s claim that it had no knowledge of the
recordings of conversations between Blount and Secrease until it
was exposed on cross-examination seems highly implausible. The
U.S. Attorney’s knowledge that all inmate calls from the Seagoville
institution were taped is evident from her subpoena of phone calls
from Mr. Ramirez to Mrs. Ramirez during the same time period.
Additionally, both Secrease and Blount were aware that their
conversations were being taped while they were speaking. These two
witnesses’ testimony almost exclusively supported the government’s
case at trial. On direct examination of Secrease and Blount, the
government specifically asked the witnesses how they communicated,
and both replied by written note and telephone. Even more telling,
Blount testified that while there was no mention of Mrs. Ramirez in
any of the written notes, he discussed her involvement frequently
with Secrease over the phone. For these reasons, we find it
unlikely that the government did not know of the multiple
recordings of its star witnesses concerning the subject on which
they testified at trial.
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We also find unpersuasive the government’s arguments that it
is excused because the tapes containing the lost calls were
destroyed before Mrs. Ramirez’s indictment. Even so, the tapes
were certainly available during the investigation of Ramirez
therefore allowing the government to preserve only the
conversations it believed were favorable to the prosecution.
Additionally, unlike the district court, we believe there is
a high likelihood of prejudice to Ramirez because had the
government produced the tapes, Ramirez could have used the evidence
to impeach the government’s most important witnesses. The district
court should explore these issues with the U.S. Attorneys on remand
in making a meaningful determination of their culpability regarding
the lost recordings. If the district court determines that the
government intentionally or negligently lost the tapes containing
the conversations, it must dismiss Ramirez’s indictment, because a
new trial cannot remedy the government’s nondisclosure.
B. Kendall Affidavit
Ramirez argues the district court erred in excluding special
agent Kendall’s search warrant affidavit. Ramirez asserts the
affidavit is admissible as the admission of a party-opponent under
Fed. R. Evid. 801(d)(2)(B). The government contends that even if
the district court abused its discretion in excluding the
affidavit, it was harmless error. We review a district court’s
ruling regarding the admissibility of evidence for abuse of
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discretion and will reverse a district court's ruling only if it
affects a substantial right of a party. See First Nat’l Bank of
Louisville v. Lustig, 96 F.3d 1554, 1574 (5th Cir.1996); United
States v. Pace, 10 F.3d 1106, 1115 (5th Cir. 1993); United States
v. Coleman, 997 F.2d 1101, 1104 (5th Cir. 1993).
Ramirez attempted to introduce Kendall’s affidavit to refute
the government’s theory explaining the absence of drugs recovered
from the transaction.4 At trial, the government explained it did
not recover drugs from this transaction because it moved too soon.
The government contended that Mrs. Ramirez had not yet brought the
drugs because she had not yet received the money order from Blount.
Blount testified that Mrs. Ramirez did not bring drugs to the
prison because she could not purchase them until she received the
money order from Blount. In his affidavit, Kendall affirmed that
Blount said the heroin was waiting at Mrs. Ramirez’s home. Ramirez
argues this evidence would have rebutted the government’s theory
concerning the absence of drugs recovered from this transaction.
Assuming the district court did err in excluding the
affidavit, we hold the error was harmless because the defense
elicited the same information from Blount on cross-examination.
Blount testified that he may have said the drugs were at Ramirez’s
4
Ramirez requested that the district court issue a subpoena for
Kendall as a witness for trial, but the district court denied the
request because she did not follow the correct procedures for the
subpoena of a government agent.
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home, and the defense cross-examined him concerning the
inconsistency of his testimony with his statement to Kendall.
Secrease also testified that Blount said the drugs were waiting at
Ramirez’s house. As a result, we find the affidavit would have
been cumulative, and its exclusion was merely harmless error.
CONCLUSION
For the above reasons, we vacate and remand in part for a
hearing concerning the culpability of the government regarding the
tapes and affirm the district court’s evidentiary ruling.
REVERSED AND REMANDED IN PART, and AFFIRMED IN PART.
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