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UNITED STATES v. BENLIZAR

October 3, 1978

UNITED STATES of America, Plaintiff,
v.
Roberto BENLIZAR, Defendant



The opinion of the court was delivered by: RICHEY

MEMORANDUM OPINION

I. INTRODUCTION

 This case is presently before the Court on the defendant's motion for the expungement of the record of his arrest and conviction. The defendant, a non-resident alien who has lived in the United States with his wife and child for many years, was convicted by a jury on April 5, 1977, of one count of distributing a controlled substance in violation of 21 U.S.C. § 841(a) (1970). On July 22, 1977, the defendant was sentenced by the Court to an indeterminate term under the Youth Correction Act, 18 U.S.C. § 5010(b) (1970). On February 16, 1978, the U.S. Court of Appeals for the District of Columbia in an unpublished opinion reversed and remanded the defendant's conviction after it became apparent that the government was guilty of violating the defendant's constitutional and statutory rights. 187 U.S.App.D.C. 240, 571 F.2d 674 (1978). These violations include the following incidents: first, a Drug Enforcement Administration (DEA) agent gave misleading testimony before this Court; second, the DEA failed for over six years to comply with the Court of Appeals' mandate in United States v. Bryant, 142 U.S.App.D.C. 132, 142, 439 F.2d 642, 652, Aff'd 145 U.S.App.D.C. 259, 448 F.2d 1182 (1971) (per curiam), which required the promulgation of regulations to preserve discoverable evidence; and, third, DEA agents destroyed crucial evidence in this case.

 The Court of Appeals, in reversing the defendant's conviction, remanded the case and ordered this Court to impose "appropriate additional sanctions based on all the circumstances of this case . . .." This case presents extreme violations by the government of the defendant's rights, despite prior explicit judicial admonitions to end such behavior. Furthermore, the defendant is facing an extraordinary degree of harm which will be inflicted upon him and his family by virtue of the record of arrest and illegal conviction. Accordingly, the defendant's motion to have the record of his arrest and conviction expunged is granted. These records and all writings or records pertaining thereto or arising out of same will be turned over to the clerk of this Court as hereinafter ordered.

 A. A DEA Agent Violated The Defendant's Constitutional And Statutory Rights By Evading The Questions Of Counsel And The Court On The Existence Of Jencks Act *fn1" And Brady *fn2" Material.

 Defense counsel at trial moved for the production of all Brady and Jencks Act material. After no handwritten notes were turned over, the Court ordered an extensive Voir dire on the existence of such notes. The Court explicitly asked whether the DEA agents had "made any handwritten notes of their conversations with the accused or anybody else in this case?" Tr. 185. The DEA agent in charge of the case testified on Voir dire and failed to mention the critical notes which the Court of Appeals singled out in its decision as a basis of reversal and remand for the imposition of sanctions against the government. *fn3" The existence of these notes did not come to light until later in the trial, and the Court, relying on the earlier representations of this agent, mistakenly assumed that the notes referred to by the agent at trial were the same ones brought to the Court's attention during the Voir dire. *fn4"

 As will later be detailed, these notes were crucial to the defendant's case. The defendant's sole defense at trial was entrapment. Both sides admitted that the sale of the heroin by the defendant to the DEA agents was made by the defendant but orchestrated by the DEA paid confidential informer. This informer was present throughout the entire transaction, and provided the only government testimony at trial contradicting the defendant's defense. The only interview notes taken by the DEA agent who interviewed the informant concerning the events of the day of the sale were intentionally destroyed by the agent of the DEA.

 B. For Over Six Years The DEA Ignored The Mandate Of The Court Of Appeals In United States v. Bryant To Promulgate And Rigorously Enforce Rules Designed To Preserve All Discoverable Evidence.

 In 1970, the U.S. Court of Appeals for the District of Columbia held that "federal investigatory agencies must promulgate and rigorously enforce rules designed to preserve all discoverable evidence." United States v. Bryant, 145 U.S.App.D.C. at 260, 448 F.2d at 1183. In United States v. Harrison, 173 U.S.App.D.C. 260, 524 F.2d 421 (1975), a decision issued nine months before the transaction in this case, the same court stated, that "this court has several times had occasion to restate the importance of Bryant, especially as it applies to the preservation of rough interview notes." Id. 173 U.S.App.D.C. at 262, 524 F.2d at 423 n.1. The regulations called for in Bryant were not issued by the DEA until days before the destruction of the critical notes in this case and then, apparently, only in response to a recent Ninth Circuit decision which followed the Bryant decision of this Circuit. *fn5" In the opinion of this Court, the long-term refusal to comply with the Court of Appeals' order in Bryant was not only egregious conduct on the part of the government of the United States but was also in blatant disregard of the fundamental rights of the defendant in this case.

 C. Several DEA Agents Destroyed Discoverable Evidence In Violation Of Brady And The Jencks Act.

 Several DEA agents, including those who witnessed the transaction for which the defendant was tried, destroyed interview notes made in preparation of surveillance reports. Furthermore, photos used in a show-up in which the defendant was identified were destroyed. *fn6" In all, there were at least five incidents in which discoverable evidence was destroyed by DEA agents. *fn7"

 Although defendant's motion to hold the DEA and one of its agents in contempt was denied, the Court is shocked and greatly displeased by the institutionalized and systematic refusal of this government agency and its agents to respect defendant's constitutional and statutory rights and one agent's apparent attempt to perpetrate a fraud upon this Court.

 D. Due To The DEA Agents' Violations Of The Law, The Defendant Did Not Receive A Fair Trial.

 In support of his entrapment defense, the defendant testified at trial. According to this testimony, he first met the DEA confidential paid informer about a month before the alleged sale occurred. Tr. 370-71, 390. Thereafter, the defendant and the informer played baseball together, and about two weeks later, the informant sought information from the defendant on where he could obtain narcotics. Tr. 371-72. About three weeks after meeting the informer and about four days before the alleged transaction, the informer, according to the defendant, pressed him further on buying drugs and asked the defendant to put up $ 500 to enable the informer to obtain heroin to sell. Tr. 404. The defendant claimed that he thought about it for a day and then asked a friend to lend him the $ 500 to give to the informer. Tr. 374, 400. The defendant stated that the informer was supposed to sell the drugs and that he gave the informer the borrowed $ 500 earlier in the day of the sale. Tr. 375-76, 421. The defendant testified that he put up the money with the understanding that he would have no role in acquiring, selling, or delivering the drugs. Tr. 421. According to the defendant, he saw the informer at the baseball field at 8:00 p.m. and asked the informer about his share of the proceeds from the supposed sale. Tr. 376. The informer told him at this time that he, as of yet, was unable to sell the drugs. Tr. 380. About an hour later he met the informer again and the informer told him that the man who was to take the drugs to the purchaser had not been located, and the informer asked the defendant to accompany him to take the drugs with him to the purchaser to make the sale. Tr. 380. According to the defendant, the informer carried the drugs to the place where the sale was to occur and gave the defendant specific instructions on what to do, namely, who to hand the drugs to and how much money to request. Tr. 381. The defendant admitted following the informer's instructions. Tr. 212, 213, 381, 382, 384, 385, 438. The defendant testified that he gave the $ 2,000 that resulted from the sale to the informer, who split up the money by keeping $ 1200 himself. Tr. 439. Thus, the defendant admitted receiving $ 300 above the borrowed amount. Tr. 385-86. According to the defendant, two weeks later the informer asked the defendant to accompany him to another sale; this time the sale was to be for a quarter-pound of heroin, but the defendant refused. Tr. 387-88.

 The informer's testimony at trial contradicted the defendant's testimony on the entrapment issue. He testified that he had been a paid confidential informer for the DEA for three years, and that he engaged in "buying heroin or you know making investigations about heroin, and introducing agents to people who sell heroin." Tr. 234-35. He received $ 1,700 for all the cases he made in Washington during the month and a half he was here during September and October 1976. Tr. 235, 253, ...


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