7. The tape was then returned to Agent Warden's desk, which remained unlocked. [at 90]. There was no thought to mention the existence of such tape until Assistant United States Attorney Rudy, in charge of the prosecution of defendants Bryant and Turner, inquired as to its possible existence [at 26, 175], after being informed of such by defense counsel Addams at a pretrial conference.
After the tape was found to be missing, Mr. Rudy requested that a diligent search of BNDD Headquarters be made [at 176]. Mr. Rudy continued to keep in touch with Agent Warden in order to keep apprised of any progress in this search. [at 177].
8. The tape was never found and since it was not in any way specially marked [at 21], it was probably considered among the stockpile of tapes available for use in subsequent surveillance intercepts. [at 27, 93].
9. The procedures in existence at the time for the recording and preservation of tapes [at 16], as well as Bureau Order 0-11,
were not followed by Agent Warden since he did not consider such a tape was a "recording" for evidentiary purposes and thus felt the above procedures were not applicable [at 25].
10. There was no deliberate destruction of the tape in question [at 28]. Agent Warden's actions in this case can be attributed to his discovery that the tapes were unintelligible. [Trial at 32, 33, 38, 39; Remand at 20, 106, 118]. Further, Agent Warden never denied the existence of such tape [at 28], and did undertake a diligent search for the tape when requested to do so.
Agent Warden did not appear to comply with Bureau procedures in existence at the time pertaining to electronic surveillance. However, such procedures, as existed at the time, were not sufficiently clear as to what, if anything, was to be done with inaudible or unintelligible tapes.
11. Agent Pope did not at any time listen to this tape, and further had no independent knowledge of its existence.
Moreover, the evidence elicited from Agent Pope at trial was uninfluenced by the tape in question as such was not used in any way to refresh the Agent's recollection, nor used in preparation of his report. [Trial Transcript, at 115].
12. The testimony of Delores Snipes Miller was not at all relevant to this remand proceeding. Mrs. Miller was never present in the motel room at the same time as the defendant Bryant, although she did participate in some of the preliminary negotiations with "Bucklejaws" Johnson [at 228, 229]. Further, Mrs. Miller had no independent knowledge of whether a tape was even made. [at 227, 228].
Mrs. Miller gave conflicting answers as to why she did not testify at trial when asked by the government [at 229, 232] as well as by the Court. [at 230].
CONCLUSIONS OF LAW
The tapes in question, if in existence, would be discoverable by appellants under either Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the Jencks Act, 18 U.S.C. 3500, and F.R. Cr. P. 16. It is clear that "before a request for discovery has been made, the duty of disclosure is operative as a duty of preservation." United States v. Bryant (United States v. Turner), 142 U.S. App. D.C. 132, 439 F.2d 642 (D.C. Cir., Jan. 29, 1971).
In this case the evidence was not preserved and thus it becomes necessary to examine the circumstances of the tape's disappearance including (1) any suggestion of possible bad faith on the part of the government agents, (2) procedures followed by the BNDD with respect to preservation of such tapes, and (3) any efforts made at the time to preserve such tape. Such is necessary to determine whether full sanctions for nondisclosure ought to be invoked absolutely or whether imposition of sanctions ought to depend upon the circumstances of the material's disappearance. In United States v. Augenblick, 393 U.S. 348, 89 S. Ct. 528, 21 L. Ed. 2d 537 (1969), the Supreme Court made clear that the circumstances of tape's disappearance is relevant to the question of proper sanctions. Thus it becomes necessary to determine whether the government has demonstrated the bad faith necessary to warrant dismissal of the indictment.
The tape, because it did not effectively preserve an intelligible conversation, never came into possession of the United States as a recording of the narcotics transaction, but was possessed only as an inaudible tape.
Agent Warden did not exhibit bad faith in his nonpreservation of the tape. He considered the tape of no apparent usefulness due to its being an unintelligible recording and thus exempt from the requirements of BNDD Order 0-11.
Although inaudible, the Government made diligent efforts to locate the tape once the request was made.
The tape recording, even if intelligible, would have had little effect on the case against defendants Bryant and Turner, as their defense was essentially that they did not participate in the transaction.
Thus, the Government's failure to produce an inaudible tape breached no duty of disclosure under either the Jencks Act, 18 U.S.C. 3500; F.R. Cr. P. 16; or Brady v. Maryland, supra, that would warrant the application of sanctions under any of the foregoing authorities in this case.