[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
____________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 6, 2003
No. 00-15828
THOMAS K. KAHN
_____________________________ CLERK
D. C. Docket No. 00-00213-CR-J-S
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
ALBERT JORDAN,
JIMMY WOODWARD,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Alabama
__________________________
(January 6, 2003)
Before TJOFLAT, BARKETT and WILSON, Circuit Judges.
TJOFLAT, Circuit Judge:
During the trial of this criminal case, while the Government was putting on
its case in chief, the district court dismissed the indictment with prejudice on the
ground of prosecutorial misconduct. According to the court, the prosecutor’s
withholding and/or untimely production of evidence and other material
discoverable under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d
215 (1963), Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104
(1972), and the Jencks Act, 18 U.S.C. § 3500, denied the defendants rights
guaranteed them by the Fifth and Sixth Amendments. After a thorough
examination of the record, we conclude that the court misapplied the rules
established by Brady, Giglio, and the Jencks Act and that the prosecutor did
nothing that justified the dismissal of the indictment, let alone the imposition of
any other sanction. Because the court’s dispositive action resulted from an
erroneous application of the law, the action constituted an abuse of discretion,
requiring that we vacate the judgment of dismissal and remand the case for further
proceedings.
I.
A.
In November 1998, Jimmy Woodward was the incumbent Sheriff of
Jefferson County, Alabama. The two largest cities in Jefferson County are
Birmingham and Bessemer. Woodward, a Republican, ran for reelection on
2
November 3, 1998, but lost by 37 votes out of the 212,000 votes cast.1
Woodward’s opponent, Mike Hale, a Democrat, was certified the winner.
Woodward planned to challenge the election results, and, on November 4,
secured the services of Albert Jordan, an attorney who specialized in election
cases. Woodward hoped to obtain a vote recount, so Jordan at first went to work
seeking a recount in several Alabama courts. Jordan failed to obtain a vote
recount, however, so he filed an election contest in the Jefferson County Circuit
Court on November 24, 2000, alleging, among other things, that convicted felons
had voted in violation of Alabama law. See Ala. Const. of 1901, art. VIII, § 182.
On the day Woodward hired Jordan, Woodward telephoned Assistant Sheriff
Royce Fields, who served under Woodward as the head of the Bessemer branch of
the Jefferson County Sheriff’s Department (JCSD), and informed him that he had
decided to conduct a voter fraud investigation. The investigation began with the
running of computer checks on the names of those in Bessemer who voted by
absentee ballot to determine whether any convicted felons voted.2
1
On November 5, 1999, the Alabama Supreme Court ruled, in a per curiam opinion, that
Woodward won the election because 115 absentee votes were not properly counted. With the
115 votes counted, the court decided that Woodward won the election by 13 votes. See Eubanks
v. Hale, 752 So.2d 1113 (Ala. 1999). Woodward currently serves as the Sheriff of Jefferson
County.
2
According to newspaper accounts, 3,578 of the votes cast in the November 3 election
were cast by absentee ballot, with over 1,000 absentee votes from Bessemer. These newspaper
accounts stated that the Bessemer absentee votes were Democratic by a margin of approximately
3
The computer checks were conducted through the Alabama Criminal Justice
Information System (ACJIS), which is connected to a system that houses
nationwide criminal records, the National Crime Information Center (NCIC).3 The
ACJIS, which is based in Montgomery, Alabama, is maintained for the use of
Alabama law enforcement personnel. The NCIC, which is based in Clarksburg,
West Virginia, is maintained by the Federal Bureau of Investigation (FBI) and is
used nationwide by police agencies. If a name is checked through the ACJIS, it is
usually automatically run through the NCIC databases as well. Access to both the
ACJIS and NCIC is circumscribed by strict rules requiring that they be utilized for
law enforcement purposes only.4 Specifically, to access the ACJIS and NCIC,
two to one.
3
In 1968, Congress mandated that the Department of Justice establish a nationalized
system to track criminal history records and exchange such records with “the States, cities and
penal and other institutions.” See 28 U.S.C. § 534(a)(4) (1994). The NCIC stores records of the
arrests, charges, and convictions of millions of people.
4
Indeed, the Supreme Court has recognized a significant privacy interest in these
records. See United States Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489
U.S. 749, 771, 109 S.Ct. 1468, 1480, 103 L.Ed.2d 774 (1989) (“The privacy interest in a rap
sheet is substantial. The substantial character of that interest is affected by the fact that in
today’s society the computer can accumulate and store information that would otherwise have
surely been forgotten long before a person attains age 80, when the FBI’s rap sheets are
discarded.”).
Our circuit has also found that NCIC records carry strong privacy interests. See United
States v. Pedersen, 3 F.3d 1468, 1471 (11th Cir. 1993) (“Not only was the integrity and
legitimacy of the [NCIC and Social Security Administration databases] undermined by
Pedersen’s offenses, but specific individuals, who were entitled to expect that the integrity of the
information would be maintained by Pedersen and others in his position, suffered breaches of
4
local law enforcement agencies must agree in writing to adhere to the rules and
regulations governing the NCIC, and to use the system only for legitimate law
enforcement purposes.
The Government believes that Woodward and Jordan, in pursuit of
Woodward’s election contest, conspired illegally to use, and in fact illegally used,
JCSD employees and resources to conduct computer checks on the ACJIS and
NCIC to determine whether any of the Bessemer absentee voters had felony
convictions.5 The Government contends that Woodward started the voter fraud
investigation as a means to conceal his use of the ACJIS and NCIC for his private
purposes. Accordingly, on June 21, 2000, following a joint investigation by the
Alabama Attorney General and the U.S. Attorney for the Northern District of
Alabama, a Northern District of Alabama grand jury, which had been empaneled in
September 1999,6 returned the instant five-count indictment7 against Woodward
their privacy.”).
5
Checks were also run on certain names on the Birmingham absentee voter list, but the
Government believes that these checks were done merely to cover-up Woodward’s checks of the
names on the Bessemer absentee voter list.
6
Earlier, an Alabama grand jury initially indicted Sheriff Woodward for obtaining
criminal history information under false pretenses in violation of Alabama Code § 41-9-601.
Concern arose, however, that the indictment was the result of political influence exerted by
Bessemer Democrats. Alabama’s Republican Attorney General, William Pryor, then took over
and discussed the prosecution with Douglas Jones, the Democratic U.S. Attorney for the
Northern District of Alabama. As a result of these discussions, Pryor and Jones decided jointly
to investigate the allegations and to dismiss the state indictment.
5
Even so, during the time the federal grand jury was in place, defense counsel maintained
that the prosecution was politically motivated by Jones. Allegations were made that Jones was
improperly influencing the prosecution and that he tried to encourage improper ex parte
communication with members of the Alabama Supreme Court, who ultimately decided the
winner of the November 3, 1998 election. As a result of these allegations, which Jones
maintained were false, he recused himself and the Department of Justice took over the case.
Since it was a joint investigation, Gregory Biggs, an Assistant Alabama Attorney
General, was assigned to the prosecution team in this case as a Special Assistant U.S. Attorney.
On October 5, 2000, a few days before the trial of this case commenced, however, the district
court disqualified Biggs on the ground that he had a conflict of interest, in that the Alabama
Attorney General’s office had successfully defended Woodward in a civil law suit brought by a
public interest organization that accused him of misusing the ACJIS/NCIC databases.
7
Woodward and Jordan were each charged in three counts of the indictment. Count One
alleged that both Woodward and Jordan conspired with each other to knowingly convert to their
own use records and things of value of the United States of a value in excess of $1,000; to
convey, without authority, records and things of value of the United States of a value in excess
of $1,000; to receive and retain, with the intent to convert to their own use, records and things of
value of the United States, of a value in excess of $1,000, knowing them to be converted; to
knowingly engage in misleading conduct towards others with the intent to influence the
testimony of persons in future official proceedings; and to defraud the United States, that is, use
deceit, craft, trickery, overreaching and dishonest means to interfere with and impair lawful
government functions, that is, the government’s control of the NCIC records and the information
contained therein, all in violation of 18 U.S.C. § 371.
Count Two charged that Woodward knowingly and without authority conveyed to Jordan
a thing of value of the United States (the NCIC records) knowing that he had no authority to do
so, in violation of 18 U.S.C. §§ 2 & 641.
Count Three charged that Jordan knowingly received and retained a thing of value of the
United States (the NCIC records), knowing them to have been wrongfully converted, with the
intent to convert them to his own use, in violation of 18 U.S.C. §§ 2 & 641.
Count Four charged that Jordan, through employees of the Jefferson County Sheriff’s
Office, intentionally accessed the NCIC computers without authorization, and thereby obtained
information from a department and agency of the United States for the purpose of private
financial gain and in furtherance of criminal acts, in violation of 18 U.S.C. §§ 2, 1030(a)(2), and
1030(c)(2)(B)(i)&(ii).
Finally, Count Five charged Woodward with willfully and knowingly aiding and abetting
6
and Jordan.8 The defendants were arraigned on July 20, 2000, and entered pleas of
not guilty.9 The district court scheduled their trial for Tuesday, October 10, 2000.10
B.
On the day the defendants were arraigned, the Government served them with
a Discovery Notice in anticipation of their request for discovery pursuant to Rule
16 of the Federal Rules of Criminal Procedure. With respect to Rule 16(a)(1)(A),11
the commission of the offense described in Count 4, in violation of 18 U.S.C. § 2.
8
The indictment was subscribed to by Craig Donsanto, Senior Trial Attorney, U.S.
Department of Justice, Criminal Division, Michael V. Rasmussen, Assistant U. S. Attorney for
the Northern District of Alabama, and Greg Biggs, Assistant Alabama Attorney General acting
as Special Assistant U. S. Attorney for the Northern District of Alabama. Donsanto and
Rasmussen subscribed to every pleading and memorandum the Government filed in this case.
We sometimes refer to them as Craig Donsanto and Michael Rasmussen or Donsanto and
Rasmussen. Biggs made no appearance for the Government following his disqualification by the
court on October 5, 2000.
9
David C. Johnson and Brett M. Bloomston of the Birmingham law firm of David
Cromwell Johnson & Associates appeared for Woodward. At trial, Johnson occupied the lead
chair. We sometimes refer to these two lawyers as David Johnson and Brett Bloomston or
Johnson and Bloomston. William N. Clark and Ronald J. Gault of the Birmingham law firm of
Redden, Mills & Clark at Law appeared for Jordan. With minor exception, only Clark spoke for
Jordan during the pretrial and trial proceedings. We sometimes refer to him as William Clark or
Clark.
10
The trial was initially set for October 2, 2000, but the court rescheduled it to begin on
October 10 at the defendants’ request.
11
Rule 16(a)(1)(A) provides, in pertinent part:
Upon request of a defendant the government must disclose to the defendant and
make available for inspection, copying, or photographing: any relevant written or
recorded statements made by the defendant, or copies thereof, within the
possession, custody, or control of the government, the existence of which is
known, or by the exercise of due diligence may become known, to the attorney
7
the Discovery Notice stated that the Government was providing defense counsel
with the following:
Copies of a 302 interview with Woodward on March 31, 199[9], a 302
of an interview with Jordan on February 16, 2000, a November 6,
1998 letter, a November 6, 1998 press release, a January 15, 1999
letter, a January 15, 1999 press release, and a March 23, 2000 letter
with attachments, will be made available upon request.
With respect to Rule 16(a)(1)(C),12 the Discovery Notice informed defense counsel
that they could “review” at the U.S. Attorney’s office and “make notes of” “grand
for the government; that portion of any written record containing the substance of
any relevant oral statement made by the defendant whether before or after arrest
in response to interrogation by any person then known to the defendant to be a
government agent; and recorded testimony of the defendant before an grand jury
which relates to the offense charged. The government must also disclose to the
defendant the substance of any other relevant oral statement made by the
defendant whether before or after arrest in response to interrogation by any person
then known by the defendant to be a government agent if the government intends
to use that statement at trial.
12
Rule 16(a)(1)(C) provides:
Upon request of the defendant, the government shall permit the defendant to
inspect and copy or photograph books, papers, documents, photographs, tangible
objects, buildings or places, or copies or portions thereof, which are within the
possession, custody or control of the government, and which are material to the
preparation of the defendant’s defense or are intended for use by the government
as evidence in chief at the trial, or were obtained from or belong to the defendant.
The remaining provisions of Rule 16(a)(1) are irrelevant here. Rule 16(a)(1)(B) involves
disclosure of the defendant’s prior record, which neither defendant has in this case. Rule
16(a)(1)(D) provides for disclosure of reports of physical and mental examinations and tests,
none of which were taken in this case. Finally, Rule 16(a)(1)(E) provides for disclosure of
expert witness testimony. There are apparently no expert witnesses in this case.
8
jury transcripts and summaries of interviews,”13 but they “w[ould] not be permitted
to copy these materials.”14 The Discovery Notice, in recognition of the
13
The “grand jury transcripts” contained the testimony of 15 witnesses who appeared
before a Northern District of Alabama grand jury. The “summaries of interviews” included (1)
FBI “302s,” documents prepared by FBI agents after interviewing a witness, (2) a memorandum
“to file,” prepared by an FBI agent, (3) memorandums prepared by Special Agent Dupuis, the
FBI’s Case Agent, summarizing information he obtained from the Alabama Bureau of
Investigation, (4) a letter from the Jefferson County District Attorney’s office to a member of the
Alabama Senate, and (5) internal memorandums prepared in the office of Sheriff Mike Hale
(who defeated Woodward in the 1998 election). In its Discovery Notice, the Government stated
that “certain [grand jury] transcripts and/or summaries will not be made available due to fear of
reprisal by one or [both] of the defendants.”
14
The Discovery Notice also stated that defense counsel could obtain from the U. S.
Attorney’s office CD roms containing:
1. Documents Bates stamped C000001-C000122
2. Documents Bates stamped C000500-C000596
3. Documents Bates stamped B000001-B002180
4. Woodward’s calendar with cover letter
5. Documents related to a dump truck accident
6. Incident/offense report and other documents related to ballot security.
7. Documents related to the NCIC/ACJIS system
8. Michel Lann’s report.
In addition, the Discovery Notice informed counsel as follows:
A computer printout of the ACJIS off-line search and the NCIC off-line search
in 3-4 inch stacks are available for inspection at the offices of the FBI. Counsel
may arrange to review these printouts by calling FBI Special Agent Barry Dupuis.
If counsel wishes to copy said materials, he must bring his own copying
equipment and supplies.
Summaries of interviews, transcripts and other documents related to voter fraud
investigations by the state Attorney General, with Bates numbers 000000 through
000228 are available for inspection at the United States Attorney’s office.
Counsel may arrange to review these by calling AUSA Mike Rasmussen.
Various billing and other office records were provided to the United States by
the Wallace Jordan law firm pursuant to subpoena. The United States assumes
that copies of these are already available to the defendant Jordan, and to the
defendant Woodward via a joint defense agreement. If counsel for either
9
defendant wishes to review these materials, counsel may arrange to do so by
calling FBI Special Agent Barry Dupuis. If counsel wishes to copy said
materials, he must bring his own copying equipment and supplies.
Various documents, described as the Sheriff’s personal file, were provided to
the United States by counsel for the defendant Woodward pursuant to subpoena.
The United States assumes that copies of these are already available to the
defendant Woodward, and to the defendant Jordan, via a joint defense agreement.
If counsel for either defendant wishes to review these materials, counsel may
arrange to review the same by calling FBI Special Agent Barry Dupuis. If
counsel wishes to copy said materials, he must bring his own copying equipment
and supplies.
Various documents were provided to the United States by Sam Robinson
pursuant to subpoena. If counsel wishes to review these materials, counsel may
arrange to so by calling FBI Special Agent Barry Dupuis. If counsel wishes to
copy said materials, he must bring his own copying equipment and supplies.
Various documents were provided to the United States by the Sheriff’s office
pursuant to subpoena, including various incident/offense reports, statement by
Persall, tapes of McGuffie, Mahaffey, Thompson, Evans, Humphreys & Reed,
statement of Moore, letter of Horton, miscellaneous receipts, miscellaneous
absentee affidavits, entry logs, Argo case materials, Alabama Administrative
Code, and rules and regulations. If counsel for either defendant wishes to review
these materials, counsel may arrange to review the same by calling FBI Special
Agent Barry Dupuis. If counsel wishes to copy said materials, he must bring his
own copying equipment and supplies.
Various documents including an appointment book, CFR excerpts faxed
11/18/98, I.O. report #9807-00874, internal computer queries re complaints, a
11/17/98 run of the Bessemer Absentee List, a 10/30/98 run of the Bessemer
Absentee list, are also available. If counsel for either defendant wishes to review
these materials, counsel may arrange to review the same by calling FBI Special
Agent Barry Dupuis. If counsel wishes to copy said materials, he must bring his
own copying equipment and supplies.
The file with the state Supreme Court has also been provided to the United
States pursuant to subpoena; this includes exhibits. If counsel wishes to review
these materials, counsel may arrange to do so by calling FBI Special Agent Barry
Dupuis. If counsel wishes to copy said materials, he must bring his own copying
equipment and supplies.
10
prosecution’s constitutional obligations under Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L. Ed. 2d 215 (1963),15 and Giglio v. United States, 405 U.S. 150,
154, 92 S.Ct. 763, 766, 31 L. Ed. 2d 104 (1982),16 went on to state:
If, after reviewing the [grand jury transcripts and summaries of
interviews, defense] counsel believes certain documents or portions
thereof contain Brady/Giglio information, counsel may provide a list
of such materials to the prosecuting Assistant United States Attorney
with a brief written statement of the reasons counsel believes they
contain Brady/Giglio information. If the prosecutor agrees, he will
provide hard copies. If the prosecutor disagrees, the defendant may
move the court to review the material in camera; this office will make
the materials available to the court for its review if so directed.17
The United States has transcripts of testimony in various civil cases. These are
available to counsel from their own sources.
The United States has copies of Woodward’s campaign filings reporting
contributions and expenditures. These are available to counsel from public
sources.
Record, vol. 1, no. 17, at 3-4 (paragraph letters omitted).
15
Brady requires the prosecution to turn over to the defense any exculpatory evidence in
its possession or control. See part III infra.
16
Giglio requires the prosecution to turn over to the defense evidence in its possession or
control which could impeach the credibility of an important prosecution witness. See part III
infra.
17
The Government allowed counsel to examine grand jury transcripts and the summaries
investigators had prepared after interviewing witnesses notwithstanding provisions of Rule 16
and 18 U.S.C. § 3500 which preclude a court from ordering their production under Rule
16(a)(1)(C).
Rule 16(a)(2) states, in relevant part, that “[e]xcept as provided in paragraph[] (A) . . . of
subdivision (a)(1), this rule does not authorize the discovery or inspection of reports,
memoranda, or other internal government documents made by the attorney for the government or
any other government agent investigating or prosecuting the case.” Under Rule 16(a)(2),
11
...
Agreements and use immunity orders are available [with respect to
witnesses who testified before the grand jury or who had been interviewed
by an investigator].
In the view of Jordan’s attorney, William Clark, it was the Government’s
responsibility, not his, to identify the portions of the grand jury transcripts and
summaries of interviews that constituted Brady/Giglio material. Accordingly, on
July 27, he served the Government with a Request for Disclosure in which he
asked that the Government identify all of the Brady and Giglio material in its
possession and to make available for inspection and copying all the items
discoverable under Rule 16. His Request went one step further, however, and
therefore, the interview summaries made by the government agents were exempt from discovery.
See Notes of Advisory Committee on 1944 Amendments to Federal Rules of Criminal
Procedure, Fed. R. Crim. P. Rule 16.
Rule 16(a)(2) also states that Rule 16 does not “authorize the discovery or inspection of
statements made by government witnesses or prospective government witnesses, except as
provided in 18 U.S.C. § 3500.” Section 3500, known as the Jencks Act, the substance of which
was incorporated into Fed. R. Crim. P. 26.2 in 1979, provides that no statement of a government
witness shall be the subject of discovery until said witness has testified on direct examination in
the trial of the case. 18 U.S.C. § 3500(a). (For ease of discussion, we refer to Rule 26.2 as the
Jencks Act or Jencks.) “Statement” is a defined term that includes grand jury transcripts. 18
U.S.C. § 3500(e)(3). Accordingly, Rule 16(a)(2) makes clear that the grand jury transcripts were
not discoverable under Rule 16(a)(1)(C).
Two additional rules support the fact that grand jury transcripts are not subject to Rule
16(a)(1)(C) discovery. First, Rule 16(a)(3), after laying out exceptions not relevant to our case,
states that Rule 16 “does not relate to discovery or inspection of recorded proceedings of a grand
jury.” Second, Rule 6(e) generally requires that the grand jury proceedings remain secret. Although
Rule 6(e) provides exceptions to secrecy, no exception is applicable to this case.
12
sought the production of materials not discoverable under Rule 16. For example,
even though Rule 16(a)(2) states that internal reports and documents prepared by
government agents investigating or prosecuting the case are not discoverable,
counsel asked the Government to produce (1) “all notes taken by each and every
federal or state agent, investigator, or employee during conversations, interviews,
or investigations of this Defendant or any alleged accomplice, whether said
accomplice is identified or unidentified in the indictment,” and (2) “any and all
correspondence between the United States of America or any agent thereof, and
Alabama Attorney General Bill Pryor or any member of his staff, Jefferson County
District Attorney David Barber or any member of his staff, or Bessemer District
Attorney Sam Russell or any member of his staff regarding the facts contained in
the indictment or any aspect of the investigation or prosecution of these Defendants
during the [investigative period].” And, notwithstanding the Rule prohibitions of
Rule 16(a)(3) and the Jencks Act, counsel also asked the Government to produce
the grand jury testimony and/or statements of every witness who would be
testifying at the defendants’ trial.18
Recognizing that these requests were outside the scope of authorized
18
Jordan asked for these Jencks Act statements in both his Request for Disclosure and
his First Amendment to Request for Disclosure, which he served on the Government on July 31.
13
discovery, the Government responded, on July 31, to Jordan’s Request for
Disclosure by stating that “the government’s Discovery Notice proffers practically
all the materials and information gathered and developed in the investigation . . .
[and] provides all the material the defen[se] is entitled to under the law. . . . As to
the material requested but not provided, the United States either does not have, or
declines to provide, [such materials].”
On July 31, Clark repeated his demand that the Government identify the
Brady and Giglio material contained in the items listed in its July 20 Discovery
Notice. In a Motion to Compel Specific Production of Exculpatory Statements,
Documents or Information (hereinafter “Motion to Compel Specific Production”),
he stated that because the Government had produced “such a voluminous amount
of information,” it would be “easy [for him] to overlook some document or
statement.” In his view, the Government’s “production of thousands of documents
which [it] ha[d] no intent on using at trial [was] really no more than a ploy to make
difficult the discovery of exculpatory information.”
On August 7, Clark took issue with the Government’s July 31 response to
his Request for Disclosure. Because he considered the Government’s response to
be woefully inadequate, Clark filed a Motion to Compel which sought a court order
requiring the Government to respond specifically to each and every paragraph of
14
his Request for Disclosure, and to produce the documents referred to therein.
While the Motion to Compel was in transit, the Government prepared a response to
Jordan’s July 31 Motion to Compel Specific Production, which it sent to Clark on
August 8. The response stated:
[T]he grand jury testimony of 15 witnesses have been provided. If
there are any more statements, they will be provided according to
Jencks. The defendants have been given practically all the evidence
gathered in this investigation. Inter office correspondence or
memoranda is simply not discoverable. It does not constitute any
evidence that the defendants are guilty or not guilty or evidence that
witnesses are or are not credible; to the extent that such
correspondence or memoranda comments on any exculpatory
evidence, that evidence has been made available.
On August 28, the Government answered Jordan’s August 7 Motion to
Compel. Using a photocopy of Clark’s July 27 Request for Disclosure, Assistant
U.S. Attorney Michael Rasmussen handwrote a response next to every paragraph
of the document. Once again, the Government “declined” to produce the notes the
investigators made following witness interviews.
On September 5, the magistrate judge held a hearing on several pending
motions, including Jordan’s Motion to Compel Specific Production and Motion to
Compel. Concluding that the first motion sought witness statements, i.e., “Jencks
materials,” the judge denied the motion on September 7. In his order, he stated that
the statements would be produced at trial, pursuant to the Jencks Act, after the
15
witnesses testified on direct examination.
As for the Motion to Compel more specific responses to the defense’s
Request for Disclosure, Clark, after acknowledging that the Government had
permitted defense counsel to read, and make notes of, grand jury transcripts and
summaries of interviews (principally 302s), asked the magistrate judge to order the
Government to produce hard copies of those 302s, as well as hard copies of the
“raw notes” the FBI agents made during or after the interviews and used to dictate
the 302s. The Government’s response was that neither the 302s nor the agents’
notes were discoverable; if an agent testified about an interview, the 302 might
constitute a Jencks Act statement of the agent (not the person interviewed) which
would have to be produced at the conclusion of the agent’s direct examination.19
The magistrate judge agreed with the Government’s position that the 302s and the
agents’ notes were not discoverable, and, on September 7 (in the same order that
disposed of Jordan’s Motion to Compel Specific Production), denied the Motion to
19
In response to defense counsel’s suggestion that since the Government had already
permitted the defense to read and make notes of the grand jury testimony and the 302s, the
Government ought to produce hard copies of the materials, the prosecutor said the following:
[W]hy don’t we make hard copies? Well, our office policy is we
don’t. And the reason we don’t is because in cases in the past
copies of FBI 302s and Grand Jury testimony have somehow
gotten out and floated around the communities, and people have
taken them and gone to witnesses and said look what we’ve got. . .
. We don’t allow that to happen anymore, and that’s the reason
why we let them read it.
16
Compel.20
On September 15, Jordan, joined by Woodward, filed objections to each of
the magistrate judge’s rulings. The district court deferred its ruling on the
objections until the day of trial; at that time, the court disposed of the objections in
one word, “denied.”
C.
The trial began, as scheduled, on Tuesday, October 10, 2000, with jury
selection. The voir dire of the venire lasted five court days. The jury was sworn
on the morning of the sixth day, Tuesday, October 17; after that, the parties made
their opening statements.
Michael Rasmussen outlined the Government’s case. First, he explained the
ACJIS and NCIC systems, as well as the rules and regulations surrounding their
use. He said that the defendants had been indicted because they developed a plan
to use the ACJIS/NCIC to obtain information for a private purpose, namely, to
contest the sheriff’s election. As part of this plan, Woodward and Jordan decided,
the day after the election, to ask Assistant Sheriff Royce Fields to run the
20
The magistrate judge made the same ruling on August 21, when he denied another of
Clark’s July 31 motions (to wit, the Motion . . . to Compel Production of Witness Statements and
Grand Jury Testimony) on the ground that the materials were not discoverable.
17
ACJIS/NCIC checks. Accordingly, two days later, on November 5, Jordan called
Fields at home, told him that Woodward had retained him to contest the election,
and instructed him to obtain the list of absentee voters from the Bessemer area so
they could determine if anyone on the list was a convicted felon or deceased. After
speaking to Woodward, Fields sent a deputy to the courthouse in Bessemer to
retrieve the list of the absentee voters.
Once he had the list, Fields called Jordan and asked what to do next. Jordan
told Fields to run criminal history checks on the names on the list, and Fields had
JCSD employees, Arnetta Sayers and Charlotte Lackey, secretaries in the
Bessemer office, carry out the task. When Fields informed Woodward that the
project could not be done quickly, Woodward offered Fields the services of Kathy
Ayers, a secretary in his Birmingham office.
The checks produced some “hits.”21 On November 9, Woodward told
Fields to compile the results of the checks run to date and take them to Jordan. As
instructed, Fields went to Jordan’s office, accompanied by Ray Edwards, a private
investigator who was working on Woodward’s election contest. Fields discussed
the list with Jordan, mentioning that the list contained NCIC information. Jordan
21
Rasmussen explained that a “hit” meant that the ACJIS/NCIC computer check
revealed a criminal arrest.
18
reviewed the results, photocopied them, instructed Fields to keep running the
names, and told Edwards to determine if any of the elderly people on the list were
deceased.
A JCSD deputy learned that the checks were being conducted, and, shortly
thereafter, the Alabama Criminal Justice Information Center (ACJIC) had one of
its investigators look into the situation – to determine whether Woodward was
using the ACJIS to prepare his election contest. On November 19, the ACJIC
investigation became public when the Birmingham News published an article
entitled “Officials Eye Woodward’s Use of Crime Databases.”
The morning the newspaper hit the newsstand, Woodward called a meeting
in his Birmingham office. “Everybody” was there. Woodward told those
assembled that he had decided to form a voter fraud task force, which Rasmussen
suggested was a “cover up” for Woodward’s improper use of the NCIC.
To buttress the cover-up and provide further proof that the ACJIS/NCIC
searches were being done pursuant to an official investigation into voter fraud,
Woodward spoke briefly with Jefferson County District Attorney David Barber in
Birmingham.22 Woodward told Barber that he was conducting a voter fraud
22
Although Bessemer, like Birmingham, is within Jefferson County, Bessemer has its
own court system and elected district attorney.
19
investigation and asked Barber if he could use one of his investigators to run
criminal history checks. Barber gave him Carl Wideman, who happened to be the
husband of Woodward’s secretary, and he ran the checks through the
ACJIS/NCIC. Rasmussen completed his opening statement by informing the jury
of the elements of the charged offenses.
Woodward’s attorney, David Johnson, went next. He told the jury that the
case was all about Sheriff Woodward’s investigation into the complaints of voter
fraud the sheriff had received during 1998. He said that the sheriff’s department
had been “besieged and bombarded by voter fraud allegations” about the
November 3, 1998 election, and had decided to investigate these complaints the
day after the election. Because the District Attorney in Bessemer, Sam Russell,
refused to investigate the allegations, Sheriff Woodward had his office launch an
investigation. This is why Woodward went to the District Attorney in
Birmingham, David Barber, for help.
Johnson then noted that Woodward had hired Jordan to seek a vote recount,
but Jordan was forced to contest the election when his effort to obtain the recount
failed. Johnson then detailed the steps Jordan took in Woodward’s behalf. He
remarked that although Jordan did meet with Fields on November 9, and Fields did
show Jordan information regarding criminal histories, Jordan did not use that
20
information in the election contest; instead, Jordan ran his own criminal histories
on a public database. Johnson closed his opening statement with the suggestion
that the prosecution was politically motivated, and that Fields had turned against
Woodward because he knew that the sheriff planned to fire him after the election.
After a lunch break, William Clark delivered Jordan’s opening statement.
He immediately rejected the notion that Jordan was implicated in any improper use
of the NCIC. He acknowledged that Jordan had met with Fields in Jordan’s law
office on November 9, and that Fields subsequently provided him with information
taken from the NCIC. Jordan, though, did not know what the NCIC was or that the
use of the NCIC was restricted. To the contrary, Jordan assumed that Fields’ use
of the NCIC was legal. His only concern was that because the majority of voters in
Bessemer were African-American, to avoid a charge of race discrimination, Fields,
in running the criminal histories of the names of the absentee voters, should be
careful not to single out African-Americans. Finally, in contesting the election for
sheriff, Jordan did not use the NCIC information Fields had given him; instead, he
used information he obtained from other sources.
Clark addressed Woodward’s voter fraud investigation in this way. He
disputed Rasmussen’s claim that the investigation commenced the morning of
November 19, after the Birmingham News story reported on the ACJIC
21
investigation, and said that the investigation began “almost immediately” after the
polls closed on November 3. The NCIC information Fields had shared with Jordan
had been gathered in pursuit of that investigation. Clark finished his opening
statement by informing the jury that Fields would be testifying for the Government
under a grant of use immunity.23 Stating that Fields had “lied” during the
investigation, Clark suggested the jury should give his testimony no credence.
D.
Following the parties’ opening statements, which ran until 3:00 p.m., the
Government called its first witness, Sara Fields, Royce Fields’ wife, to establish
one point – that Jordan called her husband at home on the morning of November 5,
1998 (she answered the telephone). On cross-examination, defense counsel
explored her history of depression, and got her to admit that sometimes, due to her
depression, she had trouble telling the truth. At the conclusion of her testimony,
the court adjourned for the day.
The next day, Wednesday, October 18, the Government called Royce Fields
to the stand.24 Fields testified that on the morning of November 5, 1998, he
23
Fields was no longer employed by the JCSD; he retired on January 18, 1999.
24
Before Fields took the witness stand, the defense informed the court that Fields and his
wife had engaged in a discussion after she left the stand the previous afternoon, and they
22
received a phone call from Jordan during which Jordan said that Sheriff Woodward
had employed him to contest the election. Jordan asked him to obtain the
Bessemer absentee voter list. Fields retrieved the list the same day and called
Jordan back. Jordan told him to start running criminal histories of the names on
the list. Fields testified that he was “uncomfortable” running the checks without an
official complaint; nevertheless, he undertook the inquiry and instructed his
secretary, Arnetta Sayers, to run the names through the NCIC.
On November 9, Woodward called and asked him to bring the results of the
checks to him in Birmingham. Fields complied. When he gave Woodward the
information, the sheriff did not review it; instead, he directed Fields to take the
results to Jordan’s office. He did so, and discussed the results with Jordan. In the
process, he told Jordan that the information came from the NCIC. Jordan directed
him to continue running the checks.
Fields next testified that, on the morning of November 19, the Birmingham
News ran an article stating that the ACJIC was looking into whether Sheriff
Woodward had improperly used criminal databases to check the backgrounds of
voters who had applied for an absentee ballot for the November 3 election. Shortly
suggested that her trial testimony was the subject of the discussion. Outside the presence of the
jury, the court asked Fields whether that was true. Fields admitted having a discussion with his
wife, but said that the subject only concerned her depression. Defense counsel nonetheless
moved the court to bar Fields from testifying. The court denied the motion.
23
after the newspaper hit the newsstand, Woodward called a meeting at his
Birmingham office. Present, in addition to Woodward, were Fields, Jordan, JCSD
attorneys, and several deputies. When the meeting began, Woodward announced
that he had decided to create a task force to investigate claims of voter fraud.
Woodward said that rumors had been circulating to the affect that the Bessemer
District Attorney (Sam Russell) was considering indicting him and Fields for their
use of the NCIC in the investigation of the absentee voters. The gist of Fields’
testimony about the meeting was that Woodward was creating the task force in an
effort to avoid indictment. The task force would focus on voter fraud complaints
that had been lodged with the Bessemer office. To that end, Woodward directed
Fields to fax the complaints to him in Birmingham. Fields explained that one of
the complaints had been filed by State Representative McAdory, who had been
defeated in the June primary; another complaint involved an allegation that a
prison inmate had voted in the City of Bessemer elections. Fields said that he had
informed Woodward of these complaints when they were originally filed, but that
Woodward told him to let the Bessemer District Attorney handle them. At the
conclusion of his direct examination, Fields acknowledged that he had appeared
24
before the grand jury under a court order.25
Jordan’s attorney, William Clark, began the cross-examination.26 He asked
Fields whether he had testified before the grand jury, and Fields said that he
testified twice, first on October 28, 1999, and a second time on June 21, 2000. On
October 25, three days before the first appearance, he was interviewed by Special
Agent Dupuis of the FBI (the case agent), Assistant Alabama Attorney General
Gregory Biggs and Special Agent Edward Hunneyman of the Alabama Attorney
General’s office, and Assistant U.S. Attorney Robert Posey. All four made notes
of what he told them. When Fields said this, Jordan’s attorney asked the court to
order the Government to produce the notes. The court excused the jury, and the
following colloquy ensued.
Clark spoke first. He contended that the defense was entitled to the
interviewers’ “raw notes” because, he represented, they contained “exculpatory
information.”27 The prosecutor, Rasmussen, disagreed. Interpreting Clark’s
25
The order granted Fields use immunity, and was entered prior to his first appearance
before the grand jury.
26
Pursuant to the Government’s Discovery Notice, defense counsel were allowed to
review and make notes, but not copy, the transcripts of Fields’ grand jury testimony. On
October 18, before Fields took the witness stand, defense counsel were given copies of the
transcripts.
27
Defense counsel had not seen the raw notes because they were not made available for
review pursuant to the Government’s Discovery Notice of July 20, 2000. Clark, therefore, had
no basis for representing that they contained “exculpatory” information. Although he did not use
25
request as a demand for Jencks Act statements,28 Rasmussen said that the notes did
not qualify as Jencks statements because they were not “an exact, [] verbatim
rendition of what [Fields] said” during the interview. At this point, the court asked
Fields if Rasmussen was present during the interview. When Fields replied that he
was not, the court instructed Agent Dupuis (who was seated at the prosecutor’s
table) to give the defense “whatever notes were prepared of the interview.” Dupuis
said that he doubted that he still had his notes. Turning to Rasmussen, the court
instructed him to produce all of the notes made in connection with the Fields
interview on October 25. Still convinced that the notes were not Jencks
the word Jencks in asking the court to order their production, his position was that the Jencks Act
required their production. The court considered Clark’s request as being made pursuant to the
Jencks Act. This becomes apparent in the ensuing court-counsel colloquy regarding (1) the raw
notes, (2) the internal communication Agent Dupuis wrote to the Birmingham FBI office on
November 2, 1999 (reporting on the Fields interview of October 25), (3) the handwritten notes
made by Rasmussen, Posey, and Biggs (during and after the interview), and (4) the summary of
interview Hunneyman prepared sometime after October 25.
28
The Jencks Act provides that in criminal prosecutions brought by the United States, no
statement made by a government witness may be the subject of discovery until after that witness
has testified at trial. 18 U.S.C. § 3500(a), (b). “Statement” is a legal term of art under the act:
(e) The term ''statement'' . . . means –
(1) a written statement made by [a government] witness and signed or otherwise
adopted or approved by him;
(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 contemporaneously with the making of such oral statement;
or
(3) a statement, however taken or recorded, or a transcription thereof, if any,
made by said witness to a grand jury.
18 U.S.C. § 3500(e).
26
statements, Rasmussen asked the court if he could read “the rule” (referring to Fed.
R. Crim. P. 26.2, which incorporates the Jencks Act). The court denied the request
and declared a brief recess so that Rasmussen could retrieve the notes.
When the proceedings resumed, Rasmussen gave the court Posey’s notes for
en camera review. He also produced his own notes, made following a separate
meeting with Fields.29 As for Biggs’ and Hunneyman’s notes, he told the court that
he had called Biggs and Hunneyman at the Alabama Attorney General’s office and
left a message that the court wanted their notes. After examining Rasmussen’s
and Posey’s notes and redacting from the latter the part that reflected Posey’s
“thought processes,” the court gave both sets of notes to defense counsel, and
declared another recess.30
Meanwhile, Dupuis retrieved an “internal communication” he had sent to the
Birmingham FBI office on November 2, 1999, which detailed the information
Fields had provided during the interview on October 25. He gave copies of the
29
The court had the clerk mark both sets of notes, as well as the other items – described
in the text infra – which Rasmussen produced over the next several days, as court exhibits.
30
With respect to Posey’s notes, the court said that they contained information that was
“contrary” to what Fields had said on direct examination. The court’s recollection of Fields’
testimony was that Fields obtained for Jordan a copy of the absentee voter list (which was
received in evidence as a Government exhibit). Posey’s notes, however, indicated that Fields
said in the interview that Jordan already had the list. Rasmussen tried (unsuccessfully) to
convince the court that there was no inconsistency – Fields was referring to the Bessemer list,
when he testified (on direct examination) that he retrieved a list for Jordan; what Jordan already
had was the Birmingham absentee voter list.
27
communication to Rasmussen, who, in light of the court’s ruling that all notes were
to be turned over, gave copies of the internal communication to defense counsel.
As lunchtime was approaching, the court recessed until 2:00 pm.
The afternoon session began with Rasmussen producing Biggs’ notes and
Hunneyman’s typewritten summary (dictated from Hunneyman’s notes, which had
been destroyed) of the Fields interview. The notes and summary were marked
together as a court exhibit, and pursuant to the court’s order, Rasmussen handed
them to defense counsel. After receiving the exhibit, and reviewing the items
previously marked as court exhibits, Clark moved the court to “dismiss the
indictment . . . on the grounds of prosecutorial misconduct . . . in that they have
withheld exculpatory information.” Counsel focused specifically on Dupuis’
“internal communication,” observing that it contained “details” Fields had not
furnished on direct examination and statements “directly in conflict” with Fields’
testimony. Specifically, according to Clark, (1) Fields testified on direct that he
obtained for Jordan an absentee voter list, whereas Dupuis’ internal
communication indicated that Fields obtained an “absentee voter application list”;
(2) Fields testified on direct that he met Jordan on November 9, whereas the
internal communication indicated that the meeting took place on November 17 or
18; (3) Fields testified on direct that Woodward’s voter fraud investigation
28
commenced on November 19, after the Birmingham News article appeared,
whereas the internal communication indicated that an investigation into voter fraud
began on November 6; and (4), on direct examination, Fields said nothing about
having heard rumors that Woodward was planning to replace him after the
election, whereas the internal communication indicated that he had heard such
rumors. When Clark finished, Woodward’s attorney, Johnson, who joined in the
motion to dismiss, stepped forward, pointing out (what he considered to be) an
additional discrepancy between Fields’ testimony on direct and Dupuis’ internal
communication: (in Johnson’s view) Fields testified that Jordan instructed him to
use the NCIC to check criminal histories,31 but the internal communication
indicated that it was not Jordan’s idea to use the NCIC.32
Rasmussen responded to the motion to dismiss as follows. First, nothing in
Dupuis’ internal communication was exculpatory. And, even if the document
could be viewed as exculpatory, it could not have been so until Fields testified on
direct examination. Therefore, the Government had no obligation to produce the
31
Counsel was mistaken; as we indicate in the text supra, Fields did not testify that it
was Jordan’s idea to use the NCIC.
32
Turning to the issue of prosecutorial misconduct, Johnson said that “the Government
has allowed [Fields] to perjure himself on at least three material matters”: Fields committed
perjury when he testified on direct (1) that Jordan instructed him to use the NCIC; (2) that the
voter fraud investigation did not begin until the task force was formed on November 19, and (3)
that he met with Jordan on November 9.
29
document until it completed Fields’ direct examination. And, the argument that the
Government should have produced the internal communication prior to trial was
frivolous. Also frivolous was the argument that the document was exculpatory
because it contained information the Government had not elicited from Fields on
direct examination. Consequently, the Government’s failure to produce Dupuis’
internal communication could not be deemed prosecutorial misconduct.33
At the conclusion of Rasmussen’s response, the court stated that it would not
rule on the motion at that time, but required Rasmussen immediately to turn over
all exculpatory documents to both the court and the defense. Clark then reiterated
his argument that the Government had disregarded the requirements of Brady and
Giglio by withholding exculpatory material – namely, Dupuis’ internal
communication. The court agreed, offering this comment (which echoed the point
Johnson had stressed): “I will say this, . . . with respect to [the internal
communication] . . . there is nothing in there that says that Mr. Jordan suggested
that Mr. Fields use NCIC.” Rasmussen, in turn, said “I agree with that, your
honor. [But,] Mr. Fields didn’t testify that Mr. Jordan told him to run NCIC
records.” The court-counsel colloquy ended shortly thereafter, and the proceedings
33
For sake of brevity, we present the gist of Rasmussen’s response to the motion to
dismiss, which was quite lengthy and was interspersed with comments the court made while
reading Dupuis’ internal communication.
30
were adjourned for the day.
That evening, the Government delivered a considerable number of items to
defense counsel and to the court. The material included three transcripts of
Dupuis’ testimony before the grand jury;34 an internal communication Dupuis sent
to the Birmingham FBI office on May 12, 2000, which detailed information Fields
had provided him, Rasumssen and Posey on May 8, 2000; five pages of
handwritten notes unidentified FBI agents made during interviews of Jordan on
February 16, 2000;35 and a letter from Craig Donsanto and Rasmussen to
Woodward’s and Jordan’s attorneys regarding the costs of running NCIC checks.
The next morning, Thursday, October 19, the court began where it left off
the previous afternoon. Rasmussen informed the court of the materials delivered to
defense counsel (and the court), which included the transcripts of Dupuis’s grand
jury testimony. Although he remained convinced that none of the material was
exculpatory, he decided to give it to defense counsel “out of an abundance of
34
These transcripts were of Dupuis’ appearances before the grand jury on October 26,
1999, March 16 and 17, 2000, and April 19, 2000. Dupuis appeared before the grand jury a total
of seven times. As of October 19, 2000, when Rasmussen produced the three transcripts
mentioned above, the court reporter had not prepared transcripts for Dupuis’ four remaining
appearances, which were on December 1, 1999, and February 16, May 17, and June 21, 2000.
On October 23, the court reporter prepared transcripts of the first three remaining appearances;
on October 24, she prepared a transcript of the fourth (June 21, 2000). As indicated in the text
infra, Rasmussen gave defense counsel copies of these four transcripts on October 24.
35
The record does not explicitly indicate who wrote the notes. Our examination of the
notes leads us to believe that they were made by Dupuis and Agent Thomas Mayhall.
31
caution.” The court asked the attorneys whether they had anything further to say
about the defendants’ motion to dismiss the indictment. Clark spoke first. He
began by stating that in providing the defense with the discovery required under
Rule 16(a), the Government stated that it was producing whatever exculpatory
material it had in its possession. “That,” he said, “was a false statement.” Next, he
accused Rasmussen of not being “candid with the court,” and alleged that
Rasmussen and other federal officials were engaged in “a conspiracy to withhold
evidence” discoverable under Rule 16, Brady, Giglio, and the Jencks Act. An
example of withheld exculpatory evidence, he said, were the grand jury transcripts
of Dupuis’ testimony, which contained at least one contradiction of Fields’
testimony on direct examination:36 on direct, Fields said that he had given Jordan
an absentee voter list; Dupuis, however, told the grand jury that Fields told him
that he had given Jordan an absentee voter “application” list. Dupuis’ testimony
on this point was exculpatory, Clark insisted, and therefore should have been
produced prior to trial.37
36
Rasmussen’s response to counsel’s argument that the law entitled the defense to a copy
of Dupuis’ grand jury testimony was essentially the same as his response to counsel’s argument
that the Government should have produced Dupuis’ internal communication of November 2,
1999, as part of its Rule 16(a) discovery: “Agent Dupuis was [only] a summary witness in the
grand jury. He’s not a witness to any of the events that are the subject of the case. We were not
going to call him as a witness.”
37
In other words, Clark argued that (1) Rasmussen should have anticipated that Fields
would refer to an absentee voter list in his trial testimony, (2) Rasmussen should have realized
32
Further evidence of the conspiracy, according to Clark, involved the FBI
302s. He reminded the court that the Government’s practice in the Birmingham
Division of the Northern District of Alabama had always been to “produce[] 302s
in discovery and, certainly, in response to Jencks.” He contended that in this case,
though, the Government, in an effort to keep defense counsel in the dark, evidently
instructed the investigating FBI agents not to prepare 302s following witness
interviews; instead, “[t]hey start using interoffice memos,” which are not
discoverable under the Jencks Act or Rule 16(a). The Government, he continued,
employed this strategy in dealing with Fields, a key prosecution witness. Although
Dupuis interviewed him – perhaps several times – he prepared no 302s. “So, the
pattern is that the FBI agent had these interoffice memos that the government
responds, well, we don’t have to produce interoffice memos and, even if we did,
they’re not exculpatory.” Clark concluded his argument by asking the court, once
again, “to dismiss the charges.”
Following a brief recess, the court denied the motion to dismiss the
indictment. Although its ruling favored the Government, the court indicated that it
was “extremely disturbed with the prosecution’s handling of this case,” and warned
that Dupuis’ testimony contradicted such reference and thereby amounted to exculpatory
evidence, and (3) the law required Rasmussen to give the defense a copy of Dupuis’ grand jury
testimony prior to trial. This was, in essence, the same argument Clark made in the absence of
the jury on October 18 after receiving a copy of Dupuis’ internal communication.
33
the prosecutors (Rasmussen and Donald Cochran, who occupied the second chair)
that “if I find, later on during this trial, anything omitted that is exculpatory to the
defendants, the motion will be granted at that time.” Continuing, the court
expressed its agreement with defense counsel that FBI 302s are discoverable under
Jencks, and that the FBI may have attempted to skirt the requirements of Jencks by
creating internal communications, instead of 302s, for the Fields interviews: “I do
find some credibility [in defense counsel’s position], not just some, I do believe
that there is something to suggest that interoffice memos [i.e., FBI internal
communications] are created so that materials cannot be produced to the
defendant.”38
After the denial of the motion to dismiss, Clark orally moved the court to
declare a mistrial as an alternative remedy for the Government’s misconduct.
Joining in the motion, Johnson argued that statements in Dupuis’ grand jury
transcripts indicated that Rasmussen had “lied to” the grand jury: “So the grand
jury, from the absolute beginning of the case, . . . the grand jury was misled, lied
to, and wrongfully told [by Rasmussen] a falsehood about how the investigation
38
The court did not use the word “Jencks” but it is obvious that the court was referring to
Jencks Act statements. We draw this inference because, as we point out in part III infra, the
Government could not avoid its obligations under Brady and Giglio to produce exculpatory and
impeaching material by having the FBI agents substitute interoffice memos for their “raw notes”
or their 302s.
34
began.” Despite these assertions, the court denied the motion for a mistrial.
Undeterred, Clark immediately asked the court to strike all of Fields’ testimony.
Without hearing from the Government, the court granted the motion and excluded
Fields’ testimony.39 With this ruling in hand, the defendants requested a
continuance. The court granted their request, stating that the trial would resume
the following Monday, October 23. Defense counsel were concerned that,
although the court had stricken Fields’ testimony, subsequent prosecution
witnesses – specifically, the JCSD employees who had run the ACJIS/NCIC
checks for Fields – might be asked why they ran the checks, and they would say
that Fields instructed them to do so. Accordingly, before court adjourned for the
day, the defendants moved the court for a ruling that Fields’ instructions to these
employees would constitute “hearsay.” The court granted their motion, and
instructed Rasmussen to tell his witnesses not to testify on the stand to anything
Fields may have said to them about running the checks; in the court’s words, the
witnesses were “not to say what Mr. Fields said to them.”
During the continuance, on Thursday and Friday afternoons, October 19 and
20, Jordan filed the following motions, which Woodward adopted:
Motion to Compel the Government to produce “any notes, inter-office
39
The court granted Clark’s request without stating the basis for its decision.
35
memoranda, or other recordings of any type or sort of any and all interviews or
conversations with [nineteen] individuals.”
Motion to Dismiss [the Indictment Due to the Government’s] Failure to
Timely Produce Exculpatory Evidence.
Motion to Dismiss [the Indictment] Due to Presentation of False Testimony
to the Grand Jury and Cumulative Prosecutorial Misconduct [based on the
discovery violations previously cited to the court].
Motion to Compel Production of Additional Documents or Things, including
“all grand jury testimony . . . [all] reports, in whatever form, of interviews
conducted by the Office of the Alabama Attorney General . . . [c]omplete 302s of
Government witnesses . . . [and] all audio, video or other recordings of witness
statements.”
The Government filed responses to these motions on Monday morning,
before the trial resumed. The Government’s position was essentially the position
Rasmussen articulated earlier in responding to defense counsel’s previous demands
for what the defendants considered to be Brady, Giglio, or Jencks Act material.
With respect to the materials it had produced – both before and during the trial –
the Government contended that the production was timely; therefore, the motion to
dismiss the indictment should be denied.
36
Court reconvened on Monday, October 23, at 8:45 a.m. In the absence of
the jury, the court took up the defendants’ several motions. After denying both
motions to dismiss the indictment, the court turned to the Motion to Compel, and
asked Rasmussen if he had turned over to the defense the items it had directed him
to produce. He said that he had. Apparently satisfied with his response, the court
did not rule on the motion.40
After addressing Jordan’s motions to dismiss and Motion to Compel, the
court turned to another motion Clark had filed on October 19: Jordan’s Motion for
Order to Direct Response to Subpoena, filed at 4:10 p.m. that day. This motion
stated that on October 19, Jordan “served a subpoena on the Custodian of Records
for the [FBI] requesting the production of notes, reports, summaries of interviews,
statements, inter-office memoranda, or other documents or recordings of any type
or sort of interviews of or conversations with [the nineteen] individuals . . .
identified in this subpoena [which is attached to the motion].” The nineteen
individuals were the same individuals named in Jordan’s Motion to Compel, cited
above, also filed on October 19 at 4:10 p.m. On October 20, the FBI, responded to
Jordan’s motion with a motion to quash, styled Federal Bureau of Investigation’s
40
The court did not realize until later in the day that Jordan had filed two motions to
compel. We address in the text infra the court’s treatment of Jordan’s Motion to Compel
Production of Additional Documents or Things.
37
Motion to Quash Subpoena or Alternative Motion to Submit Materials In
Camera.41 The FBI’s motion said, essentially, that Rule 17(h) of the Federal Rules
of Criminal Procedure rendered Jordan’s subpoena unenforceable to the extent that
it sought witness statements.42 Regarding the other material covered by the
subpoena, the motion stated that, at the court’s request, the FBI would submit the
material to the court for en camera inspection.43 Speaking to Assistant U.S.
Attorney Winfield Sinclair, the court said:
I’m going to request that you make a list of what has not been
produced . . . . I think that [it] is your burden to show the court what
has already been produced . . . . You can leave, for en camera
inspection, what has not been produced and I will be glad to look at it
personally. And I need you to do that this morning.
Sinclair left the courtroom to prepare the list; he returned following the noon
recess.
Meanwhile, at 10:40 a.m., with the jury back in the courtroom, the trial
resumed. After the court instructed the jury to disregard Fields’ testimony, the
41
As was the case with the indictment and the other pleadings the Government filed,
Craig Donsanto of the Department of Justice subscribed to the pleading. Also subscribing to the
pleading was Assistant U. S. Attorney for the Northern District of Alabama Winfield Sinclair.
42
Rule 17(h) states: “Statements made by witnesses or prospective witnesses may not be
subpoenaed from the government or the defendant under this rule, but shall be subject to
production only in accordance with the provisions of Rule 26.2."
43
While the motion did not refer to Brady or Giglio, it is obvious that the only legitimate
reason for giving the defendants the other material the subpoena covered would be that the
material was exculpatory under Brady or impeaching under Giglio.
38
prosecution called (in succession) three JCSD employees to the stand.44 The first
was a deputy sheriff who obtained for Fields “a list of absentee voters.”45 The
second and third witnesses were secretaries in the Bessemer office who, at Fields’
request, ran ACJIS/NCIC checks on names appearing on the absentee voter list.46
In examining these three witnesses, the prosecutors, in an effort to comply with the
court’s earlier ruling and to keep them from uttering what Fields may have told
them, used leading questions. The defense objected on thirteen occasions; every
objection was sustained. When the prosecutor asked the deputy why he gave
Fields the voter list or asked the secretaries why they ran the ACJIS/NCIC checks,
defense counsel objected to the question as calling for hearsay.47 The prosecutor,
in turn, argued that the response would not constitute hearsay; rather, it would
simply explain why the witness performed the act in question. On all but two
44
Rasmussen examined the first two witnesses; Cochran examined the third.
45
It does not appear from the record that the FBI had interviewed this witness prior to
his appearance at trial.
46
Both witnesses were interviewed by the FBI. The agents prepared 302s, which
defense counsel were allowed to review and make notes of pursuant to the Government’s July 20
Discovery Notice. Copies of the 302s were given to the defense on the morning of October 19,
before the witnesses took the stand. The first secretary testified before the grand jury. Defense
counsel were allowed to review and make notes of the transcript of her testimony pursuant to the
Discovery Notice. They were given copies of the transcript when they received copies of the
302s.
47
There were roughly twelve hearsay objections, of which ten were sustained. In all, the
defendants objected to the prosecutor’s questions 25 times, and the court ruled with the defense
23 times.
39
occasions, the court sustained the hearsay objection; if, however, the witness
answered the question, the court struck the response. When the prosecutor finished
his direct examination of the third witness, the court declared the noon recess, at
12:15 p.m.
At 1:30 p.m., court reconvened, and, in the absence of jury, Clark moved the
court to dismiss the indictment on the ground of prosecutorial misconduct: in
examining the two secretaries, the prosecutor had engaged in “an intentional effort
. . . to get that information [i.e., Fields’ instructions to run the NCIC checks] that
the court had specifically [excluded].” The court denied the motion.48
By this time, Sinclair had returned to the courtroom with the list the court
had instructed him to prepare. He told the court that he had prepared a list that
itemized “the complete FBI file.” Of the items on the list, he identified one
document the defense had not received. The court instructed him to give it to
defense counsel, and he did so immediately.49 He also informed the court that he
was unable to determine whether the defense had all of the other documents on the
48
In moving the court to dismiss the indictment, Clark asked alternatively for a mistrial.
Assuming that the court was not going to grant a mistrial, he also asked the court to strike the
testimony of the two secretaries. The court ruled on neither alternative motion.
49
This document was an internal communication drafted on April 12, 2000, by FBI
Agent Michael Casanova updating the Birmingham office of an investigation of a voter
complaint filed by Jessie Burrel.
40
list. In response, the court suggested that he go over the list with defense counsel,
to ensure that they had everything.
The trial thereafter resumed, and the second secretary took the stand for
cross-examination. When she stepped down, the Government called a member of
Jordan’s law firm.50 He produced a firm billing record which showed that Jordan
and Fields had met on November 9. He was followed by Ray Edwards, the private
investigator Woodward had hired, who was present at the Jordan-Fields November
9 meeting.51 Next, a secretary in the JCSD Birmingham office testified that she ran
NCIC checks on absentee voters.52 After she testified, the court sent the jury home
for the day.
With the jury excused, Clark asked the court to rule on his Motion to Compel
Production of Additional Documents or Things, which he had filed on Friday,
October 20. Among other materials, the motion sought the production of “any and
all reports, in whatever form, of interviews conducted by the Office of the Alabama
50
The record does not indicate whether the FBI interviewed this witness.
51
The FBI interviewed Edwards, and he also testified before the grand jury. The
transcript of his testimony and the 302s prepared following his interviews were made available
to defense counsel pursuant to the Discovery Notice. Defense counsel received copies of the
302s and the grand jury transcript on the morning of November 19.
52
The record does not indicate whether the FBI interviewed this witness. She testified
before the grand jury. Defense counsel were given access to the transcript of her testimony
pursuant to the Discovery Notice, and they received a copy of the transcript on the morning of
November 19.
41
Attorney General including, but not limited to, any reports recorded on a document
titled ‘Interview Report Form.’” The court inquired of Rasmussen whether he had
produced these items and the others listed in the motion, and he stated that every
item had been turned over, although he was unsure with respect to a few reports of
interviews conducted by the Alabama Attorney General’s office. The court
instructed Rasmussen to call the Attorney General’s office and “make sure that
they’ve turned over their investigative file.”53
After a brief lull in the court-counsel colloquy, Sinclair returned to the
courtroom and reported on his meeting with defense counsel. He informed the
court that he and defense counsel tentatively agreed on the documents that had not
yet been produced. These documents were photocopied, produced to the defense,
and marked as court exhibits. Included among the documents were the following:
three 302s;54 handwritten notes of seventeen interviews;55 three internal
53
Though the court did not formally rule on the motion to compel, it effectively granted
the relief Clark was seeking.
54
Neither Sinclair nor defense counsel indicated whether the 302s concerned witnesses
who would be testifying at the trial.
55
The persons interviewed were Ken Rich, Terry Massey, Sam Robinson, Frank
Richmond, Curtis Gordon, Ray Edwards, Sam Russell, Arthur Green, John Thomas, John
Carden, Joy Ann Perry, Robert Brooks, Mike Hale, Jack Drake, Lou Brannon, Reginald
Cochran, and Gary White. None of the notes indicates the identity of the agent who made them,
but Dupuis probably drafted most of them.
42
communications;56 a copy of an interoffice memorandum (from the Alabama
Attorney General’s office) authored by Hunneyman on December 14, 1998; a July
14, 2000 memorandum written by Jefferson County Attorney Edwin Strickland to
the Jefferson County Commissioner’s office regarding Woodward’s request that
the County Commission pay the attorney’s fees incurred in his defense in the
instant case; a February 15, 2000 credit report on Ray Edwards; and a document
dated October 19, 1999 acknowledging the FBI’s receipt of property from Mike
Lannn of the ACJIC.
The next morning, Tuesday, October 24, Clark reminded the court that it had
instructed Rasmussen to call the Alabama Attorney General’s office. Rasmussen
said that he had made several unsuccessful calls to Biggs and Hunneyman, and had
left a message on Biggs’ answering machine. The court asked Rasmussen for
Biggs’ telephone number, called the number, and wound up speaking to
Hunneyman. The court ordered Hunneyman to produce the items called for by
Jordan’s Motion to Compel Production of Additional Documents or Things.
While the court was trying to reach Biggs, Rasmussen reported that he had
56
Dupuis drafted the three internal communications, dated October 12 and November 8,
1999, and April 10, 2000. Dupuis’s communications updated the Birmingham FBI office as to
the status of the investigation into Woodward’s alleged use of the NCIC.
43
given defense counsel three more transcripts of Dupuis’ testimony before the grand
jury (on December 1, 1999 and February 16 and May 17, 2000). The testimony
had been transcribed the night before. He explained that his office had not asked
the court reporter to transcribe the testimony earlier because the testimony only
dealt with administrative matters. As Rasmussen put it, Dupuis’ three appearances
were “record returns. That’s when we issued a subpoena and the agent comes in to
the grand jury and says ‘we’re conducting this investigation, we issued a subpoena,
and we got these records returned.’ Typically, we don’t transcribe those because
they’re administrative.”57 The court reporter for the grand jury happened to be
present in the courtroom, and Clark took her aside and asked her if all of Dupuis’
grand jury testimony had been transcribed. She said that Dupuis’s appearance on
June 21, 2000 (the date the grand jury returned the instant indictment) had not been
transcribed. Clark informed the court of this, and Rasmussen said he would have
the reporter prepare a transcript immediately. At this juncture, the court declared a
brief recess.
When the proceedings resumed (still in the absence of the jury), Clark once
57
The December 1 transcript consists of four pages of testimony. The February 16
transcript consists of eleven pages of testimony, in which Dupuis briefly answers some questions
about the NCIC’s operation and describes the allegations against Woodward. The May 17
transcript consists of a little over one page of testimony. Nothing in these transcripts relates to a
witness interview.
44
again moved the court to dismiss the indictment on the ground of prosecutorial
misconduct, to-wit: the Government’s delay in producing the transcripts of Dupuis’
grand jury testimony. He insisted that the these transcripts contained
“exculpatory” evidence, although he pointed to nothing exculpatory in any of the
transcripts.58 He concluded his argument by accusing the Government of
deliberately delaying its production of discoverable materials in an “attempt[] to
provoke a mistrial.”
Johnson, who joined in Clark’s motion, elaborated on a theme he had been
developing from the outset – that Woodward’s indictment was the product of
political shenanigans. Johnson drew the court’s attention to Gary Carroll’s
September 15, 1999 memorandum to file (labeled “Work Product of the District
Attorney’s Office”), and then read an October 5, 1999 letter from District Attorney
of the Seventh Judicial Circuit, Joseph D. Hubbard, to Bessemer District Attorney
Russell, contending that, considered together, these exhibits revealed that
58
Clark did point to page 10 of Dupuis’ grand jury testimony of February 16, 2000,
stating: “On page 10, a juror asked: ‘Did the sheriff supply a list of names to his subordinates?’
And [Dupuis] says he directed the subordinates to get a copy of the list and to run the checks.
Contrary to Mr. Dupuis’ claim that it was Mr. Jordan. It’s exculpatory.” We are at a loss to see
how this is exculpatory. The notion that Rasmussen violated the teachings of Brady and Giglio,
the discovery rule, Rule 16(a)(1)(C), or Jencks in failing to produce Dupuis’ statement to the
grand jury is patently frivolous.
45
“Woodward was indicted . . . because of grand jury misconduct.”59 The
memorandum Carroll (an investigator in Hubbard’s office) wrote, referred to a
September 15, 1999, meeting he, Hubbard, and Michael Lann (the ACJIC
investigator) had at theVestavia Hills Police Department to discuss the Woodward
investigation. Reading from the memorandum, Johnson said: “Mr. Lann states,
categorically and unequivocally, Sheriff Woodward is not guilty of any crime.” He
then read the following passage from Hubbard’s October 5, 1999 letter to Russell:
Dear Sam [Russell]:
I wanted to inform you that after investigating the facts
surrounding this indictment [by the state grand jury] as fully and fairly
as possible, I have concluded that it is not in a posture for successful
prosecution at this time. Due to the present state of the evidence, as
well as some exculpatory matters that have now come into my
possession concerning the grand jury itself, I have decided to ask the
court to enter a nolle prosequi concerning this indictment. This, of
course, would not preclude future prosecution if needed.
In fact, I have met with U.S. Attorney Doug Jones several times
over the course of my investigation and he suggested this indictment
should be dismissed for a related federal investigation he is
considering conducting. I concur this is the best move at this time.
After reading this letter, Johnson attempted to buttress his prosecutorial
misconduct claim by examining Dupuis. With the court’s leave, he called Dupuis
to the stand and asked him whether Rasmussen was aware of the his internal
59
Defense counsel had access to these two documents prior to trial pursuant to the
Government’s Discovery Notice of July 20, 2000.
46
communication of October 25, 1999. Dupuis said that Rasmussen knew about it.
The court interrupted Johnson’s questioning and asked Dupuis why he prepared an
internal communication instead of a 302 following the October 25, 1999 Fields
interview. Dupuis explained that, at the time of the interview, the FBI had not
determined whether to use Fields as a “confidential informant,” a “standard
witness,” or a “cooperating witness.” Under Bureau policy, he said, each required
a different report, inferring that, had the plan been to use Fields as a standard
witness, he would have prepared a 302. Because, on October 25, 1999, Fields’s
role, if any, was undecided, his supervisor had him prepare an internal
communication.
After Dupuis answered the court’s questions, Johnson, by way of argument,
compared Fields testimony before the grand jury with what Dupuis wrote in his
internal communication of May 12, 2000 (digesting the information Fields gave
him in a May 8, 2000 interview), and told the court that “they let Mr. Fields testify
untruthfully [before the grand jury on June 21, 2000].”60 With this, Johnson sat
down, and Clark took over. Pursuing Johnson’s line of inquiry, he asked Dupuis
whether he had told Rasmussen about his internal communications. Dupuis’
response was, “after I wrote them up, I told him I had documents.” Clark
concluded his questioning by having Dupuis acknowledge that, in his February 16,
60
Johnson pointed to nothing in Fields’ June 21 testimony that he considered untruthful.
47
2000 grand jury appearance, he testified to more than administrative matters.
Rasmussen then asked Dupuis one question, “Did you view those [internal
communications] as exculpatory?” Dupuis’ response was “I don’t know. I mean, I
would have to think back. Yeah, I think – yeah, there were some things in there
that certainly would have helped the defense.” Rasmussen turned then to defense
counsel’s claims of prosecutorial misconduct.
Reduced to its essentials, Rasmussen’s response was that none of the
materials the Government had turned over during the trial contained exculpatory
material; that he was not trying to provoke a mistrial; that the number of times
Dupuis appeared before the grand jury was irrelevant; that he had no obligation to
produce Dupuis’ grand jury testimony because the Government never intended to
call Dupuis, who was strictly a case agent, as a witness in its case in chief; and that
the questions he put to the Government’s witnesses – in an attempt to comply with
the court’s order precluding them from explaining why they obtained the absentee
voter lists or why they ran the NCIC checks Fields wanted – had to be, of
necessity, somewhat leading. When Rasmussen finished his presentation, the court
declared a recess.
Following the recess, the court heard from Biggs and Hunneyman who gave
defense counsel what was left of the Alabama Attorney General’s file concerning
48
the Woodward matter. Included in the file were two interview report forms –
relating to the Alabama Ethics Commission’s investigation of Woodward’s use of
the NCIC – and some handwritten notes. The report forms were self explanatory,
but since the handwritten notes were not legible, Rasmussen had Biggs interpret
them. After that, Biggs and Hunneyman were excused. By this time, the court
reporter had transcribed Dupuis’ grand jury testimony of June 21, 2000, and
Rasmussen furnished defense counsel and the court with copies. A fifteen minute
recess followed, so that they could read the transcript. Thereafter, the court
entertained the parties’ comments.
Johnson said that the transcript showed that “[t]he grand jury was
completely misled by Mr. Dupuis and Mr. Rasmussen[, who examined Dupuis
before the grand jury that day,] in hiding from the grand jury all of the facts that
have been presented to [the court] in the last couple of days.” Clark echoed
Johnson’s view that the grand jury had been manipulated, raising four points.
First, Dupuis’ testimony, which consumed thirty-four pages, was not about “the
production of documents.” Second, Rasmussen erred in reading to the grand jury
only a part of 28 C.F.R. § 20 (a regulation governing the use of the NCIC); he
should have read the whole regulation. Third, Dupuis inaccurately reported what
Jefferson County District Attorney Barber “knew” about the NCIC checks. Fourth,
49
in telling a grand juror that the “usual procedure” in voter fraud cases was to refer
the matter to the U.S. Attorney General, Rasmussen downplayed the authority of
the “sheriff” to investigate the matter. After Jordan made these four points, the
court interjected and suggested that Dupuis’ statement – that “no criminal
complaints were presented to either the Jefferson County District Attorney’s office
or the Bessemer District Attorney’s office for any allegations of voter fraud” – was
incorrect; complaints to one of those offices had been made.
Rasmussen’s response to the court’s comment was that when Dupuis
mentioned the complaints, he was referring to the fact that Woodward’s voter fraud
task force presented no formal complaints to a District Attorney’s office until after
Woodward was indicted in this case. Rasmussen’s reply to Clark’s comments
were, essentially, that the grand jury had not been misled, and that, while he was
not required to do so, he informed the grand jury of Jordan’s “basic defense.”
Earlier, the court had instructed defense counsel to make a list of the
documents they had received “for the first time” during the trial. Brett Bloomston,
one of Johnson’s law partners, read (on behalf of both defendants) the list, which
consisted of twenty-four court exhibits and is reproduced in the margin,61 into
61
The twenty four court exhibits (Cx) identified by the defense are as follows:
Cx 1: An October 25, 1999 Kastigar immunity letter provided to Royce Fields. Defense
counsel admitted on the record that they received this exhibit prior to trial.
50
Cx 2: Rasmussen’s handwritten notes from an interview with Fields.
Cx 3: Posey’s handwritten notes from the October 25, 1999 meeting with Fields.
*Cx 4: Dupuis’ internal communication dated November 2, 1999 documenting
information received from his interview with Fields on October 25, 1999.
Cx 5: Hunneyman’s typed summary and Biggs’ handwritten notes from the October 25,
1999 meeting with Fields.
Cx 9: A letter, dated October 20, 2000, from Rasmussen and Donsanto to defense
attorneys Clark and Johnson stating that “[t]he cost of running an NCIC check for a
criminal justice purpose is, as you have already stated, pennies. This is, however,
because runs for criminal justice purposes are specifically funded.” The cost for running
checks for certain “non-criminal justice purposes . . . ranges from $2.00 a run to $24.00 a
run.”
Cx 16: An FBI memorandum dated April 12, 2000 from Agent Michael Casanova to the
Birmingham office detailing information received from a Birmingham source “not in a
position to testify” that an individual named Jessie Burrel is one of the individuals that
went to Sheriff Woodward “before the elections and indicated to him she knew of some
voting irregularities.” These included a felon voting and forging of election documents.
The source said that Burrel tried to bring this information to the FBI but her information
was “discounted.” The source also provided names of others who may have information
on absentee ballot fraud.
Cx 17: A list of subpoenaed materials the FBI provided in response to the court’s request
during the hearing on the defense’s October 19, 2000 Motion for Order to Direct
Response to Subpoena.
Cx 18: This court exhibit encompasses numerous documents, including the following
which the defendants claim they did not receive until after the trial commenced:
(A) 302 of Gary White, President of the Jefferson County Commission, dated
September 8, 2000, claiming that Woodward never presented him with a bill for
legal fees incurred facing the prosecution in this matter.
(B) 302 of Sergeant Kenneth Rich, dated December 23, 1999. Rich claims he
observed Arnetta Sayers (Fields’ secretary) running ACJIS/NCIC checks, and
noticed voter registration lists on her desk; Rich also made a copy of the log being
used to record the results. Rich was the deputy who leaked the fact that the NCIC
checks were being done; it was his 302 to which the Discovery Notice referred
51
when it stated that certain summaries of interviews were not “made available due
to fear of reprisal by one or [both] of the defendants.”
(C) 302 of Connie Weeks of NCIC, dated May 3, 2000, in which Special Agent
Dupuis noted that he requested Weeks to search all criminal histories run by the
JCSD between November 1, 1998 and December 31, 1998.
(D) Typed notes by Dupuis from an interview with Hunneyman on January 19,
2000, stating that Hunneyman provided Dupuis with two interoffice
memorandums detailing the Alabama Attorney General’s office’s investigation
into allegations of voter fraud made by the JCSD regarding the November 1998
general election for sheriff.
(E) Receipt of property record dated October 19, 1999, acknowledging the FBI’s
receipt of documents from Mike Lann of the ACJIC.
(F) Raw notes, prepared mostly by Dupuis, from interviews with Ken Rich, Terry
Massey, Sam Robinson, Curtis Gordon, Ray Edwards, Sam Russell, Arthur
Green, John Thomas, John Carden, Joy Ann Perry, Robert Brooks, Mike Hale,
Judge William Wynn, Lou Brannon, Frank Richmond, Reginald Cochran, and
Gary White.
(G) A series of “post-it” notes photocopied on one page.
(H) A credit check of Ray Edwards.
(I) Four pages of handwritten notes written by an unknown author regarding
voter fraud complaints.
(J) A memorandum dated July 14, 2000 to the Jefferson County Commission
(JCC) from County Attorney Edwin A. Strickland recommending the JCC deny
Woodward’s request that the JCC pay Woodward’s attorney fees arising from his
defense to the criminal charges filed against him.
Cx 19: Includes three FBI internal communications drafted by Dupuis and two letters
which appear to be Dupuis’ typed updates to his file: (1) an internal communication dated
October 12, 1999, from Dupuis to the Birmingham office requesting approval for a
preliminary investigation into Sheriff Woodward’s NCIC checks in the November 3,
1998 election; (2) an internal communication dated November 8, 1999, from Dupuis to
the FBI Criminal Investigative Division advising the Bureau that an investigation has
begun into allegations of abuse of the NCIC computer system by Sheriff Woodward; (3)
an internal communication dated April 10, 2000, from Dupuis to the FBI Criminal
52
Investigative Division updating them as to the status of the Woodward investigation and
implicating Albert Jordan in the alleged conspiracy; (4) a November 5, 1999 letter stating
that U.S. Attorney Jones requested the FBI to initiate an investigation of Woodward’s use
of the NCIC; (5) an April 12, 2000 letter detailing the history of the Woodward
investigation and noting an indictment against Woodward and Jordan is expected in mid-
May of 2000.
*Cx 21: Dupuis’ internal communication dated May 12, 2000 documenting information
received from his interview with Fields on May 8, 2000.
Cx 22: A grand jury transcript of Dupuis’ testimony on October 26, 1999.
Cx 23: A grand jury transcript of Dupuis’ testimony on March 17, 2000.
Cx 24: A grand jury transcript of Dupuis’ testimony on April 19, 2000.
Cx 25: A grand jury transcript of Dupuis’ testimony on December 1, 1999.
Cx 26: A grand jury transcript of Dupuis’ testimony on February 16, 2000.
Cx 27: A grand jury transcript of Dupuis’ testimony on May 17, 2000.
Cx 28: A photocopy of Pub. L. No. 92-544, 86 Stat. 1109, 1115 (1972), discussing the
salaries and expenses of the FBI, and other documents detailing NCIC search and cost
statistics.
Cx 31: The rough notes, probably written by Fields and FBI Agent Thomas Mayhall, of
their interview with Albert Jordan dated February 16, 2000.
Cx 33: A “post-it” note that Biggs made regarding a short discussion he had with
Alabama Attorney General Pryor. This was the post-it note that Biggs was called to the
stand to explain.
Cx 34: Transcript of an August 12, 1999 interview by Hunneyman with Charles Aldridge
of the Alabama Ethics Commission. Aldridge discusses the Ethics Commission’s
investigation on Woodward, and also highlights his interaction with the Bessemer
District Attorney’s office, suggesting that the motives of the Bessemer District Attorney
in indicting Woodward were possibly political.
Cx 35: Transcript of an August 23, 1999 interview by Jesse Seroyer, Jr. and John E.
Brennan, agents in the Alabama Attorney General’s office, with Aldridge regarding the
Ethics Commission’s investigation on Woodward. Aldridge comments on certain
53
the record. Thereafter, Clark orally moved the court to dismiss the indictment. He
based his motion on the “cumulative effect” of
the things that have occurred since [the commencement of the trial],
including today, the production of the four transcripts of [Dupuis’]
grand jury testimony, as well as other information, the testimony of
Mr. Dupuis today, in which [Dupuis] acknowledged that he had told
Mr. Rasmussen, over a year ago, of the existence of the so-called
interoffice memoranda of Mr. Fields.
After acknowledging that “the government didn’t have to [produce] all of this
information,” Clark suggested that the Government’s intent in producing
“thousands and thousands of documents” enabled it to withhold information that it
was required by law to produce and rendered defense counsel’s task in defending
the case extremely difficult.
Johnson, joining in Clark’s motion, said that “it all boils down . . . to three
documents, [Dupuis’ November 2, 1999 internal communication, Dupuis’ May 12,
2000 internal communication, and Dupuis’ June 21, 2000 grand jury transcript].”
interactions between the Ethics Commission and the District Attorney’s office in
Bessemer.
Cx 36: A log of the ACJIS criminal history checks conducted in November of 1998. The
log was prepared on October 23, 2000, and turned over to the defendants the next day.
Rasmussen had the log prepared because it was a “condensed version” of other
ACJIS/NCIC logs already prepared, and made analysis “easier” for all viewers.
*Cx 39: A grand jury transcript of Dupuis’ testimony on June 21, 2000.
*The defense identified court exhibits 4, 21, and 39 as the most important. Besides the
twenty-four identified court exhibits, the defense claims there are many more documents
not marked as court exhibits which the prosecution failed to produce prior to trial.
54
First, endorsing Clark’s specific criticisms of Rasmussen’s handling of the grand
jury (as reflected in the transcripts of Dupuis’ testimony on June 21, 2000),
Johnson urged the court to dismiss the indictment on the ground that the
Government had abused the grand jury process.62 Then, citing what he considered
exculpatory evidence in Dupuis’ internal communications of November 2, 1999,
and May 12, 2000, Johnson contended the Government’s delay in producing the
documents materially prejudiced his client’s defense.63
Rasmussen, in his response, treated the defense as advancing three discrete
arguments: the court should dismiss the indictment on the grounds of (1) selective
prosecution, to-wit: the Bessemer District Attorney’s office, the U.S. Attorney’s
office for the Northern District of Alabama, and the Department of Justice, all
Democrats, were after a Republican sheriff; (2) grand jury abuse; and (3) discovery
abuse. As for the first and second grounds, he said, the defendants had made no
showing. Turning to the third ground, Rasmussen argued that no abuse occurred.
He insisted that none of the material handed over to the defense after the trial
62
“Abuse of the grand jury process” is our expression. We use it because it reflects the
gist of Johnson’s argument.
63
Johnson did not use the word “exculpatory” in referring to the November 2 and May
12 communications. Rather, we infer from his argument that, in his view, statements Dupuis
made in the communications contradicted material portions of Fields’ testimony on direct
examination.
55
commenced constituted Brady or Giglio material in that it was exculpatory or
impeaching. That being the case, none of the grand jury testimony, and none of the
FBI 302s or any other documents, including Dupuis’ internal communications,
were discoverable under the Jencks Act.
As soon as counsel’s arguments were finished, the court ruled from the
bench and dismissed the indictment with prejudice for “Fifth [and] Sixth
amendment” violations. The court explained why it took this step:
The court has considered the prosecution, the manner in which it has
proceeded, and I feel like it has prevented the defendants from
preparing, even for cross-examination of the government’s witnesses,
because of the multitude of documents that have been given to them
every night, or almost every night, in violation of repeated, not
necessarily orders, but in violation of repeated representations by the
government that they have produced everything to the defendants
beginning three weeks ago.
The next day, October 25, the court entered a written order in conformance
with its ruling from the bench. The order stated that “the cumulative effect of the
prosecutorial misconduct has deprived the defendants of their rights guaranteed by
the 5th and 6th amendments of the Constitution of the United States.” On October
27, the Government took this appeal.
II.
Our jurisdiction to entertain this appeal is conferred by 18 U.S.C. § 3731.
56
That statute provides, in relevant part:
In a criminal case an appeal by the United States shall lie to a court of
appeals from a decision, judgment, or order of a district court
dismissing an indictment . . . as to any one or more counts, except that
no appeal shall lie where the double jeopardy clause of the United
States Constitution prohibits further prosecution.64
The defendants contend that the district court’s order dismissing the indictment
with prejudice is the functional equivalent of an acquittal of the charges lodged
against them. We disagree.
In United States v. Torkington, 874 F.2d 1441(11th Cir. 1989), the district
court dismissed the indictment with prejudice, pursuant to Rule 29 of the Federal
Rules of Criminal Procedure,65 at the beginning of the prosecution’s presentation of
evidence, based, as here, “on prosecutorial misconduct.” Id. at 1445. The
misconduct, according to the court, occurred when a Government witness referred
to a matter the court had ruled inadmissible. The Government appealed under 18
U.S.C. § 3731, and the defendant took the same position the defendants take here:
64
The Double Jeopardy Clause, which is contained in the Fifth Amendment, reads:
“[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or
limb.” U.S. Const. amend. V.
65
Rule 29 states in pertinent part:
The court on motion of a defendant or of its own motion shall
order the entry of judgment of acquittal of one or more offenses
charged in the indictment . . . after the evidence on either side is
closed if the evidence is insufficient to sustain a conviction of such
offense or offenses.
57
the Double Jeopardy Clause barred the appeal. We disagreed. We said that
“[r]egardless of how the district court styled its order . . . it is clear that the court
did not base its decision on the resolution of any of the factual elements necessary
for conviction.” Id. at 1444. The Double Jeopardy Clause therefore presented no
obstacle to the Government’s right to prosecute the appeal. Torkington is squarely
in point. As in Torkington, the district court, here, dismissed the indictment early
in the prosecution’s case, and “did not base its decision on the resolution of any of
the factual elements necessary for conviction.” We therefore consider the merits of
the Government’s appeal.
III.
The district court dismissed the indictment in this case on the grounds that
the cumulative effect of prosecutorial misconduct had prevented defense counsel
from preparing their cross-examination of the Government’s witnesses and thereby
infringed the defendants’ rights under the Fifth and Sixth Amendments. In other
words, the prosecutor’s misconduct operated to deprive the defendants of their
Sixth Amendment right to the effective assistance of counsel,66 and, at the same
66
The Sixth Amendment to the U.S. Constitution guarantees that in all criminal
prosecutions “the accused shall enjoy the right . . . to have the assistance of counsel for his
defense.” U.S. Const. amend. VI. The Supreme Court has concluded that this right to the
assistance of counsel includes the guarantee that their counsel will be effective in the discharge
58
time, their due process right to a fundamentally fair trial.67
The dismissal of an indictment on the ground of prosecutorial misconduct is
a discretionary call;68 we therefore review the court’s action for abuse of discretion.
See United States v. Pendergraft, 297 F.3d 1198 (11th Cir. 2002). A district court
abuses its discretion if, in making the decision at issue, it applies the incorrect legal
standard or makes findings of fact that are clearly erroneous. See In re Celotex
Corp., 227 F.3d 1336, 1338 (11th Cir. 2000). Put in the context of this case, the
question is whether the manner in which the prosecutor responded to the
Government’s discovery responsibilities under Rule 16(a), Brady, Giglio, and the
Jencks Act – both before and after the trial began – could reasonably be labeled
“misconduct,” such that the court was justified in taking the action it did.
Before we assess the propriety of the prosecutor’s conduct in this case, it is
of their duties. See McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed.
2d 763 (1970).
67
The Fifth Amendment to the U.S. Constitution provides that no person shall be
deprived of “life, liberty, or property, without due process of law.” U.S. Const. amend. V. The
Supreme Court has concluded that the Due Process Clause protects the right to fundamental
fairness in criminal proceedings. See Patterson v. New York, 432 U.S. 197, 201-02, 97 S. Ct.
2319, 2322, 53 L. Ed. 2d 281 (1977).
68
Although the district court has the discretion to dismiss an indictment on grounds of
prosecutorial misconduct, see, e.g., United States v. Hollaway, 778 F.2d 653, 655 (11th Cir.
1985), it is well established that “dismissal of an indictment for prosecutorial misconduct is an
extreme sanction which should be infrequently utilized.” United States v. Accetturo, 858 F.2d
679, 681 (1988) (quoting United States v. Pabian, 704 F.2d 1533, 1536 (11th Cir. 1983)).
59
necessary to review what the law required the Government to reveal to the
defendants – in terms of evidence and other materials – during the pretrial and trial
stages of the prosecution. We begin with the pretrial stage.
A.
Our starting point is Rule 16(a) of the Federal Rules of Criminal Procedure,
which spells out the materials the prosecution must produce on the defendant’s
request.69 While Rule 16(a) only applies to materials within the “possession,
custody, or control of the government,” courts have found that the “possession,
custody, or control of the government” requirement includes materials in the hands
of a governmental investigatory agency closely connected to the prosecutor. See,
e.g., United States v. Scruggs, 583 F.2d 238, 242 (5th Cir. 1978).70 Moreover,
under the rule, the prosecution has a continuing duty to disclose any evidence that
is subject to discovery or inspection. Fed. R. Crim. P. 16(c).71 On the other hand,
69
See part I.B. supra. Rule 16 sets forth the discovery obligations of the defendant as
well as the government. The rule “is intended to prescribe the minimum amount of discovery to
which the parties are entitled,” and leaves intact a court’s “discretion” to grant or deny the
“broader” discovery requests of a criminal defendant. Notes of Advisory Committee on 1974
Amendments to Federal Rules of Criminal Procedure, Fed. R. Crim. P. Rule 16.
70
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
71
Rule 16(c) states:
If, prior to or during trial, a party discovers additional evidence or
60
the government need not produce the materials unless there is a request by the
defendant, see, e.g., United States v. Lambert, 580 F.2d 740, 745 (5th Cir. 1978).
And even if there is a request, the government is not obligated to make copies of
material previously requested or ordered, which is subject to
discovery or inspection under [Rule 16], such party shall promptly
notify the other party or that other party’s attorney or the court of
the existence of the additional evidence or material.
61
the items.72
Rule 16(a)(1)(C) addresses the discovery of documents and tangible
objects.73 Under Rule 16(a)(1)(C), the government must permit the defendant to
inspect and copy or photograph books, papers, documents, photographs, tangible
objects, buildings or places, or copies or portions thereof, which are within the
possession, custody or control of the government, if the requested items (1) are
material to the preparation of the defendant’s defense;74 (2) are intended for use by
72
Nonetheless, the district court has the discretion to require the government to provide
the defendant with copies of discovery material, especially where the defendant is indigent.
United States v. Freedman, 688 F.2d 1364, 1366-67 (11th Cir. 1982). The court’s discretion,
however, is not “unbridled.” Id. at 1366. In Freedman, in holding that the district court had
abused its discretion in ordering the government to go to a considerable expense in copying
documents for the defense, we said this:
Where the defendant has in no way been prohibited from
inspecting the particular documents and cannot demonstrate an
undue hardship from this availability, he should not be permitted to
transfer the cost of his discovery request to the government
especially where, as in the instant case, the defendants are not
indigent.
Id. at 1366-67.
73
See note 12 supra.
74
Although Rule 16(a)(1)(C) did not codify the Brady v. Maryland, 373 U.S. 83, 83 S.
Ct. 1194, 10 L. E. 2d 215 (1963), holding – which requires the government to provide the
defendant evidence favorable to the accused – the rule’s requirement that the government
disclose documents “material to the preparation of the defendant’s defense” indicates that the
drafters of the rule recognized the government’s Brady obligation. See Notes of Advisory
Committee on 1974 Amendments to Federal Rules of Criminal Procedure, Fed. R. Crim. P. Rule
16 (“Disclosure of documents and tangible objects which are ‘material’ to the preparation of the
defense may be required under the rule of Brady v. Maryland.”). Some courts have held that the
materiality standards under Rule 16 and Brady are the same. See, e.g., United States v. Boffa,
513 F. Supp. 444, 499 (D. Del. 1980). Others have disagreed. See, e.g., United States v. Eley,
335 F. Supp. 353, 358 (N.D. Ga. 1971) (The requirements of Rule 16 and Brady are not the
same, since the latter constitutes a constitutional mandate and covers items that may be beyond
62
the government as evidence in chief at the trial;75 or (3) were obtained from or
belong to the defendant.76
An item in the first category need not be disclosed unless the defendant
demonstrates that it is material to the preparation of his defense. A general
description of the item will not suffice; neither will a conclusory argument that the
requested item is material to the defense. See United States v. Carrasquillo-Plaza,
873 F.2d 10, 12-13 (1st Cir. 1989); United States v. Cadet, 727 F.2d 1453, 1466
(9th Cir. 1984). Rather, the defendant must make a specific request for the item
together with an explanation of how it will be “helpful to the defense.” See, e.g.,
United States v. Marshall, 132 F.3d 63, 67-68 (D.C. Cir. 1998) (“helpful” means
relevant to preparation of the defense and not necessarily exculpatory); United
States v. Olano, 62 F.3d 1180, 1203 (9th Cir. 1995). As the Fifth Circuit put it in
the reach of the rule.)
75
The phrase “evidence in chief” has been interpreted to mean proof presented in the
government’s case in chief, and not to evidence used only for impeachment, see, e.g., United
States v. Lambert, 580 F.2d at 746, or rebuttal. See, e.g., United States v. Givens, 767 F.2d 574,
582-83 (9th Cir. 1985). On the other hand, documents are considered part of the evidence in
chief if they are marked and offered into evidence by the government or relied on or referred to
in any way by the government’s witness. See United States v. Countryside Farms Inc., 428 F.
Supp. 1150, 1154 (D.C. Utah 1977).
76
The items in the second and third categories were added to the rule in 1974 to make
clear that items which the government intends to introduce at trial or which belong to the
defendant are material to the defense, and should be produced before trial. Notes of Advisory
Committee on 1974 Amendments to Federal Rules of Criminal Procedure, Fed. R. Crim. P. Rule
16.
63
United States v. Buckley, 586 F.2d 498, 506 (5th Cir. 1978) (quoting United States
v. Ross, 511 F.2d 757, 762-63 (5th Cir. 1975)), the defendant must “show” “more
than that the [item] bears some abstract logical relationship to the issues in the
case. . . . There must be some indication that the pretrial disclosure of the [item]
would . . . enable[] the defendant significantly to alter the quantum of proof in his
favor.”
The discovery afforded by Rule 16(a)(1)(C) is limited by Rules 16(a)(2) and
(3).77 Rule 16(a)(2) exempts from disclosure “reports, memoranda, or other
internal government documents made by the attorney for the government or any
other government agent investigating or prosecuting the case,” and “statements
made by government witnesses or prospective government witnesses.” Rule
16(a)(3) exempts the discovery of statements of persons who have testified before
a grand jury. The Jencks Act, of course, mandates that a statement by a prospective
prosecution witness to an investigative agent or the grand jury must be provided to
the defense after the witness has testified on direct examination.78
In addition to the government’s discovery obligations under Rule 16(a), the
77
See note 17 supra.
78
In some cases, if the prosecutor trusts defense counsel and, moreover, is satisfied that
an earlier production of a Jencks statement will not lead to mischief, such as witness
intimidation, the prosecutor may turn it over before the witness is to testify. Indeed, it is
customary in many jurisdictions for the government to produce Jencks materials prior to trial.
64
government must also honor the defendant’s constitutional rights, particularly the
due process right Brady v. Maryland established.79 Brady requires the prosecutor
to turn over to the defense evidence that is favorable to the accused, even though it
is not subject to discovery under Rule 16(a), since, eventually, such evidence may
“undermine[] the confidence in the outcome of the trial.” United States v. Newton,
44 F.3d 913, 918 (11th Cir. 1995) (quoting United States v. Bagley, 473 U.S. 667,
678, 105 S.Ct. 3375, 3381, 87 L. Ed. 2d 481 (1985)). The defendant’s right to the
disclosure of favorable evidence, however, does not “create a broad,
constitutionally required right of discovery.” Bagley, 473 U.S. at 675 n.7, 105 S.
Ct. at 3380 n.7.80 Indeed, a “defendant’s right to discover exculpatory evidence
does not include the unsupervised right to search through the [government’s]
79
The typical Brady claim comes to light following the defendant’s conviction, with the
discovery “of information which had been known to the prosecution but unknown to the
defense.” See United States v. Kubiak, 704 F.2d 1545, 1549 (11th Cir. 1983) (quoting United
States v. Agurs, 437 U.S. 97, 103, 96 S. Ct. 2392, 2397, 49 L. E. 2d 342 (1976)). In the case at
hand, however, the defendants’ Brady claims involve material that was produced both before and
during the defendants’ trial. In such a scenario, because the trial has just begun, the
determination of prejudice is inherently problematical.
80
The Supreme Court in Bagley explained that:
An interpretation of Brady to create a broad, constitutionally
required right of discovery ‘would entirely alter the character and
balance of our present systems of criminal justice.’ Furthermore, a
rule that the prosecutor commits error by any failure to disclose
evidence favorable to the accused, no matter how insignificant,
would impose an impossible burden on the prosecutor.
Bagley, 473 U.S. at 675 n.7, 105 S. Ct. at 3380 n.7 (quoting Giles v. Maryland, 386 U.S. 66, 117,
87 S. Ct. 793, 818, 17 L. Ed. 2d 737 (1967) (dissenting opinion)).
65
files,” Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S. Ct. 989, 1002, 94 L. E. 2d
40 (1987), nor does the right require the prosecution to deliver its entire file to the
defense. See Agurs, 437 U.S. at 109, 96 S. Ct. at 2400. Rather, Brady obligates
the government to disclose only favorable evidence that is “material.” The
“touchstone of materiality is a ‘reasonable probability’ of a different result.” Kyles
v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1566, 131 L. E. 2d 490 (1995).
Accordingly, under Brady, the government need only disclose during pretrial
discovery (or later, at the trial) evidence which, in the eyes of a neutral and
objective observer, could alter the outcome of the proceedings. Not infrequently,
what constitutes Brady material is fairly debatable. In such cases, the prosecutor
should mark the material as a court exhibit and submit it to the court for en camera
inspection. See Buckley, 586 F.2d at 506 (citing Agurs, 437 U.S. at 106, 96 S. Ct.
at 2399).81
81
Where, as here, the defendant only makes a general request for exculpatory material
under Brady, the government decides which information must be disclosed. Ritchie, 480 U.S. at
59, 107 S. Ct. at 1002 (footnote omitted). “Unless the defense counsel becomes aware that other
exculpatory evidence was withheld and brings it to the court’s attention, the prosecutor’s
decision on disclosure is final.” Id. If the defendant is aware of specific information contained
in the government’s file, “he is free to request it directly from the court, and argue in favor of its
materiality.” Id. However, mere speculation or allegations that the prosecution possesses
exculpatory information will not suffice to prove “materiality.” See, e.g., United States v.
Ramos, 27 F.3d 65, 71 (3d Cir. 1994) (mere speculation that agents rough notes contained Brady
evidence insufficient); United States v. Williams-Davis, 90 F.3d 490, 513 (D.C. Cir. 1996);
United States v. Michaels, 796 F.2d 1112, 1116 (9th Cir. 1986). The defendant must show that
there is a reasonable probability the evidence could affect the outcome of the trial. See Baxter v.
Thomas, 45 F.3d 1501, 1507 (11th Cir. 1994).
66
B.
Once the trial begins, the government must produce the Jencks Act
statements of a witness when the witness is tendered for cross-examination.82 As
mentioned, “statement,” under the Act, is a term of art; “Congress[, in enacting the
Jencks legislation,] was concerned that only those statements which [can] properly
be called the witness’ own words should be made available to the defense . . . . It
[is] important that the statement[s reflect] fully and without distortion what had
been said.” Palermo v. United States, 360 U.S. 343, 352, 79 S.Ct. 1217, 1224, 3 L.
Ed. 2d 1287 (1959). Consequently, an interviewer’s raw notes, and anything
prepared from those notes (such as an FBI 302), are not Jencks Act statements of
the witness unless they are substantially verbatim and were contemporaneously
recorded, or were signed or otherwise ratified by the witness. See United States v.
Delgado, 56 F.3d 1357, 1364 (11th Cir. 1995). On the other hand, if the agent is
called as a witness, these statements – depending on the scope of the agent’s
testimony on direct examination – may constitute Jencks material. See United
Additionally, we observe that a general request for “all” Brady material, like the one by
Jordan in this case, does not help the prosecutor determine which information in the
government’s possession might constitute Brady evidence. Combined with the fact that “the
significance of an item of evidence can seldom be predicted accurately until the entire record is
complete,” Agurs, 427 U.S. at 108, 96 S. Ct. at 2399, a general request for all Brady evidence
places an onerous, if not impossible, burden on the prosecutor to identify correctly all “material”
items.
82
See note 28 supra.
67
States v. Saget, 991 F.2d 702, 710 (11th Cir. 1993).
In addition to producing Jencks Act statements, the prosecutor must continue
to comply with Brady’s demands once the trial begins. Accordingly, the
prosecutor must turn over any newly discovered items that materially favor the
defense, see High v. Head, 209 F.3d 1257, 1265 n.8 (11th Cir. 2000) (prosecutor
has “ongoing” duty to disclose exculpatory evidence), as well as any impeachment
evidence that is likely to cast doubt on the reliability of a witness whose testimony
“may well be determinative of guilt or innocence.” Bagley, 473 U.S. at 676-77,
105 S.Ct. at 3380-81 (quoting Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct.
763, 766, 31 L. Ed. 2d 104 (1972)). See United States v. Bueno-Sierra, 99 F.3d
375, 380 (11th Cir. 1998). Impeachment evidence should be disclosed in time to
permit defense counsel to use it effectively in cross-examining the witness. See
United States v. Bueno-Sierra, 99 F.3d at 379-80; United States v. Higgs, 713 F.2d
39, 43-44 (3d Cir. 1983).
With the foregoing principles in mind, we evaluate the prosecutor’s
compliance with the Government’s discovery obligations in this case.
C.
i.
68
Part I.B., supra, describes in considerable detail the discovery the Government
provided the defense prior to trial – beginning with the Discovery Notice it served
on the defendants, on July 20, 2000, immediately following their arraignment. The
Discovery Notice gave defense counsel access to far more evidence and other
material than Rule 16(a) required. Among other non-discoverable items, they were
given access to transcripts of grand jury testimony and summaries of witness
interviews, including FBI 302s.83 Because the Government produced the
summaries of interviews and 302s, defense counsel insisted on the production of
the agents’ and other investigators’ “raw notes,” implying that the Government had
waived its right, under Rule 16(a)(2), to withhold those items. In addition, they
demanded access to everything the Government and the Alabama Attorney
General’s office possessed that related to their investigation of the case. When the
Government resisted, defense counsel sought court orders compelling the
Government to produce these materials. The magistrate judge, concluding that
counsel’s requests had no support in the law, denied their motions, and the district
court summarily affirmed his decisions.
83
As the Government’s July 31, 2000 response to Jordan’s Request for Disclosure
correctly stated, “the government’s Discovery Notice proffers practically all the materials and
information gathered and developed in the investigtation . . . [and] provides all the material the
defen[se] is entitled to under the law.” The Government reiterated this in its August 8 response
to Jordan’s Motion to Compel Specific Production: “The defendants have been given practically
all the evidence gathered in this investigation.”
69
The defendants complain that the Government’s discovery was so
voluminous that it hindered their pretrial preparation. The discovery was indeed
voluminous – because the Government gave the defense access to far more
information and materials than the law required. The defendants could hardly
complain about that. If they had insufficient time to sort things out, they should
have asked for a continuance.84
The defendants also contend that the Government attempted to avoid its
Brady obligation by requiring them to search the discovered materials for
exculpatory material. Their request for Brady material was nothing more than a
general request for favorable information. As far as we can tell, the defendants
never told Rasmussen or anyone else on the prosecution team what their “defense”
would be. As Rasmussen said to the magistrate judge at the September 5th hearing
on the defendants’ motions to compel further discovery, “I don’t know what
[Clark’s] theories are. I don’t think there is a defense in this case. And I don’t
know exactly what he’s going to say or not say.”
The defendants may have had a defense, but, given the court’s dismissal of
84
As noted supra, the court gave the defendants an eight-day continuance – from
October 2 to October 10, and there is nothing in the record which would lead us to believe that
the court would not have granted an additional continuance had they asked for one. See also 18
U.S.C. § 3500(c) (“Whenever any statement is delivered to a defendant pursuant to this section,
the court in its discretion, upon application of said defendant, may recess proceedings in the trial
for such time as it may determine to be reasonably required”).
70
the indictment, there was no need to disclose it. Whatever their defense may have
been, the defendants apparently needed far more help than the Government’s Rule
16(a) discovery provided; hence, their blanket demands for everything the
Government, the Alabama Attorney General’s office, and anyone else who had
investigated the case may have uncovered. They were obviously searching for
anything that might persuade a jury to acquit.85 In sum, the defendants’ discovery
requests went far beyond what the law, as we have expounded it, requires. As the
Supreme Court observed, in reversing the D.C. Circuit in Agurs:
The Court of Appeals appears to have assumed that the prosecutor has
a constitutional obligation to disclose any information that might
affect the jury’s verdict. That statement of a constitutional standard of
materiality approaches the ‘sporting theory of justice’ which the Court
expressly rejected in Brady. For a jury’s appraisal of a case ‘might’
be affected by an improper or trivial consideration as well as by
evidence giving rise to a legitimate doubt on the issue of guilt. If
everything that might influence a jury must be disclosed, the only way
a prosecutor could discharge his constitutional duty would be to allow
complete discovery of his files as a matter of routine practice.
Whether or not procedural rules authorizing such broad discovery
might be desirable, the Constitution surely does not demand that
much.
427 U.S. at 108-09, 96 S. Ct. at 2400 (footnotes omitted). We cannot tell from
what the district court stated on the record on October 24, or what it wrote in its
order the next day, whether the court thought the dismissal of the indictment was
85
At the September 5 hearing before the magistrate judge, Rasmussen expressed this
thought when he told the court that the defendants were on a “fishing expedition.”
71
warranted because of the manner in which the prosecution discharged its pretrial
discovery obligations. If the court believed that the prosecution was derelict in
discharging those obligations, the belief was unfounded.
ii.
At trial, the items the prosecutor failed to produce – the items that appear to
have concerned the court the most – fell into two categories: Jencks Act statements
and Brady materials – more specifically, materials that, under Giglio, amounted to
“impeaching evidence.” We discuss these categories in order.
a.
Government agents’ reports of witness interviews and summaries of those
interviews are not Jencks Act statements unless they are (1) substantially verbatim,
contemporaneously recorded transcripts, or (2) signed or otherwise adopted by the
witness. See United States v. Delgado, 56 F.3d 1357, 1364 (11th Cir. 1995). The
statements at issue – those the court required Rasmussen to produce (namely, the
raw notes, summaries of interviews, FBI 302s and internal communications, and
other writings made by investigating agents, assistant U.S. attorneys, and personnel
in the Alabama Attorney General’s office) – were, according to defense counsel
72
and the court, Fields’ Jencks Act statements. We fail to see how any of the
statements qualify under either of the Jencks Act definitions.
As used in the Jencks Act, “substantially verbatim” means using the nearly
exact wording or phrasing the witness uttered during the interview; if only some of
the exact wording is used, it is not Jencks material. See United States v. Cole, 634
F.2d 866, 867 (5th Cir. Jan. 1981) (“[A]lthough the notes may have contained
phrases or isolated sentences identical to the language used by the witness, they
were not a ‘substantially verbatim report’ of the interview.”). Whether a 302, raw
notes, or other government document contains sufficiently extensive verbatim
recitation to come within the Act is a matter of fact to be decided by the trial court.
See United States v. Loyd, 743 F.2d 1555, 1566 (11th Cir. 1984). In this case, the
defense proffered nothing to show the statements were verbatim transcripts, see
Delgado, 56 F.3d at 1364, nor did the court ascertain the sufficiency of the
recitation. Moreover, our review of the statements indicates that none are probably
sufficiently verbatim. Regardless of our review, however, it is clear that the court
could not have properly dismissed the indictment based on the fact that the
Government failed to produce what obviously constituted Fields’ “substantially
verbatim” Jencks Act statements.
Nor could the court have based its dismissal on the Government’s failure to
73
produce Fields’ “adopted” Jencks Act statements. If, after reading the statements,
the court thought Fields may have “adopted” them as his own, the court should
have held an evidentiary hearing to determine if Fields had in fact done so. See
Loyd, 743 F.2d at 1566. Fields was present in the courtroom; it would have been a
simply matter to show him the statements and ask him whether he had adopted
them. But no hearing was held. Furthermore, defense counsel provided no
evidence that Fields adopted or approved the reports or that any of the government
agents “read back his notes or asked [Fields] to confirm their accuracy.” Delgado,
56 F.3d at 1364.86
That the district court misapplied the Jencks Act, however, does not end our
inquiry into whether the prosecutor engaged in misconduct justifying the dismissal of the
indictment. We must decide whether he withheld exculpatory or impeaching evidence,
in derogation of his duties under Brady and Giglio, such that he could be charged with
prosecutorial misconduct sufficient to warrant the dismissal of the indictment.
86
In our view, no reasonably competent prosecutor could have anticipated the district
court’s sudden reversal of its decision affirming the magistrate judge’s denial of the defendants’
repeated discovery demands for the investigators’ raw notes, interview summaries, and internal
agency reports (effectively the Government’s and the Alabama Attorney General’s “entire file”).
The court’s about-face put the prosecutor in an untenable position; how was he to produce
instantaneously documents he had no reason to suspect would be discoverable at the conclusion
of Fields’ direct examination? Under the circumstances, the prosecutor behaved quite
admirably, with the respect the court was entitled to receive from one of its officers.
74
b.
It becomes evident from a reading of the record that, after the trial began,
defense counsel and the court sometimes referred to the documents the prosecution
produced, or was instructed to produce, as Jencks Act material; sometimes they
labeled them Brady or Giglio material. We have examined the materials marked as
court exhibits and find that none constitutes Brady material in the sense that the
material is exculpatory. The question thus becomes whether any of the material
was “impeaching” under Giglio. To answer the question, we focus on Assistant
Sheriff Fields’ testimony on direct examination and the controversy it engendered.87
Before defense counsel commenced Fields’ cross-examination, they had the
transcripts of his grand jury testimony. They also knew that he had appeared before
the grand jury under a grant of immunity. Early in the cross-examination, Fields
revealed that prior to his first grand jury appearance, he had been interviewed by
Dupuis, Posey, Biggs, and Hunneyman. At this point, counsel demanded the
interviewers’ raw notes because, as Clark put it, “[a] lot of what he said [to the
interviewers], we would contend, at least has some exculpatory information in it
87
We focus on Fields’ direct examination because there is no claim that the prosecutor
withheld any evidence that would have materially impeached any of the other witness who
testified.
75
and we would be entitled to it.”88 Of course, counsel had not seen the notes (or the
summaries or reports made from the notes), so counsel was purely speculating.
Nonetheless, the district court ordered the prosecutor to produce the notes.
Rasmussen produced those that were available, and the summaries and internal FBI
communications prepared from the notes that were thereafter discarded.89 Later, the
prosecutor obtained and gave the defense similar documents maintained in the
Alabama Attorney General’s office. According to defense counsel, this evidence
impeached Fields’ testimony. For example, Dupuis’ internal communication of
November 2, 1999 contained “details” the prosecutor failed to bring out on direct
examination. These details contradicted Fields’ testimony as follows: (1) contrary
to Fields’ testimony on direct, he obtained for Jordan an “absentee voter application
88
Earlier, in his pretrial discovery requests, Clark made the same claims in support of his
Motion . . . to Compel Production of Witness Statements and Grand Jury Testimony. There he
demanded that the Government produce “all of such statements and [grand jury] testimony on
the [] grounds all of said statements and grand jury testimony are to some degree exculpatory.”
89
During the intermittent court/counsel interchanges concerning whether the
interviewers’ raw notes, summaries of interviews, and internal communications constituted
Jencks material, the court accepted as credible defense counsel’s allegation that, in an effort to
avoid disclosure of Brady and Giglio material, the Government had Dupuis, and perhaps other
FBI agents, prepare “internal communications” and other interoffice memoranda instead of 302s.
The court apparently overlooked the fact that it matters not whether exculpatory or impeaching
material is in the form of raw notes, a 302, or an interoffice communication: if the document
contains exculpatory or impeaching information, the prosecution is duty bound to disclose it.
Nothing in the record before us indicates that the Government – in particular, the prosecutor’s
office – believed that its duty to disclose Brady or Giglio material depended on whether the
material existed in the form of raw notes or a 302, as opposed to an interoffice memorandum or
other internal communication.
76
list” (not an “absentee voter list”); (2) Fields and Jordan met on November 9, not
November 17 or 18 as Fields told Dupuis; (3) Fields told Dupuis that Woodward’s
voter fraud investigation began on November 5, not on November 19; (4) Fields
failed to reveal on direct examination (because he was not asked) that he had heard
a rumor that Woodward was going to replace him after the election; and (5) Fields
testified incorrectly that Jordan instructed him to use the NCIC.
We do not believe the omission of such details amounted to the withholding
of impeaching evidence, such that Giglio required the prosecutor to disclose it when
Fields took the stand. The first point is frivolous – there can be no doubt that Fields
retreived a list for Jordan with the names of those who intended to, or did, vote
absentee. The second point is likewise frivolous: in his opening statement to the
jury, Clark said that Fields and Jordan had met on November 9. Regarding the third
point, we note that defense counsel knew in advance of trial that, as early as
November 5, Woodward’s office was investigating voter fraud. The fourth point is
frivolous; in his grand jury testimony (a transcript of which defense counsel
possessed), Fields said that his job was on “thin ice”; Woodward contemplated
replacing him after the election. Also frivolous is the fifth point because, contrary
to counsel’s representation to the court, Fields did not testify that Jordan instructed
him to use the NCIC.
77
The withholding of information such as the above provided the basis for
defense counsel’s allegation of prosecutorial misconduct and the defendants’
motions to dismiss the indictment. Defense counsel contend that Dupuis’ grand
jury testimony materially contradicted what Fields said on direct examination. We
have examined Dupuis testimony and find nothing that could reasonably be used to
impeach Fields’ testimony. Similarly, we find no Giglio material in any of the
other materials the prosecutor turned over at trial. The same is true with respect to
the FBI files Sinclair produced in response to Jordan’s subpoena.
IV.
We have concluded that the district court misapplied the Brady and Giglio
rules as well as the Jencks Act. The court therefore abused its discretion to the
extent that it struck Fields’ testimony,90 and then dismissed the indictment on the
90
Implicit in the court’s decision to strike Fields’ testimony is the notion that the
Government’s failure to disclose the allegedly impeaching materials – Dupuis’ internal
communications and his grand jury testimony, and the notes and summaries made by those who
interviewed Fields before he appeared before the grand jury – deprived counsel of Giglio
impeaching material so late in the game that counsel could not prepare to cross-examine Fields
effectively. Since it was apparent that none of these materials constituted Fields’ Jencks Act
statements, the only way in which defense counsel could have used the materials would be to ask
Fields whether, at a given point in time, he told Dupuis (or the other persons who interviewed
him) this or that. If Fields denied telling Dupuis this or that, the defense could call Dupuis as a
witness and attempt to elicit the inconsistent (and presumably impeaching) statement. Our
examination of the material defense counsel and the court deemed impeaching discloses that any
inconsistencies they revealed – between what Fields said on direct examination and what he told
Dupuis (and the others) – were minor, and clearly were not impeaching under the Giglio
standard. Finally, regarding the fact that the materials contained information that Fields did not
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ground that the prosecutor grievously mishandled the Government’s discovery
obligations created by those cases and the statute. There remains, however, one
other possible basis for the court’s actions. Shortly before it dismissed the case, the
court indicated that the prosecutor had engaged in highly inappropriate conduct in
examining the JCSD witnesses who took the stand after Fields’ stepped down. The
misconduct consisted of asking leading questions and eliciting hearsay, to-wit: what
Fields said to them that caused them to run the ACJIS/NCIC checks. We find no
misconduct, for several reasons.
First, the court’s ruling that the witnesses could not say what Fields told them
was erroneous because Fields made the challenged statements as a member of the
conspiracy alleged in Count One of the indictment, and he made them during and in
furtherance of the conspiracy. Fed. R. Evid. 801(d)(2)(E). Moreover, what Fields
said to the witnesses – in response to which they ran the checks – was admissible to
show the witnesses’ state of mind. See Fed. R. Evid. 801(c); 2 John W. Strong,
McCormick on Evidence § 249 (5th ed. 1999); 6 John Henry Wigmore, Wigmore
on Evidence § 1789, at 214 (Chadbourn rev. 1976).91 In addition, our review of the
disclose on direct examination (because he was not asked about them), we are unaware of any
legal authority which holds that the non-disclosure of information not elicited on direct
examination somehow warrants the striking of the witness’ testimony.
91
Once the court ruled, the prosecutor, as an officer of the court, was bound to act
accordingly.
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prosecutor’s questions – to which defense counsel objected as leading (as well as
calling for hearsay) – convinces us that most of the questions were not leading;
accordingly, the objections should have been overruled. Finally, even if the
questions were somewhat leading or elicited hearsay, we are satisfied that the
prosecutor, forced to tiptoe through a veritable minefield, was doing his best to keep
the witness from uttering anything Fields had said. We therefore find nothing in the
manner in which the prosecutor handled his direct examination of the JCSD
employees that reasonably could be labeled prosecutorial misconduct.
V.
In conclusion, because the bases for the district court’s dispositive action –
the dismissal of the indictment with prejudice – have no foundation in the law, such
action constituted an abuse of discretion. The judgment of the district court is
accordingly VACATED, the indictment is REINSTATED, and the case is
REMANDED for further proceedings.
SO ORDERED.
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