According to said report, Officer Wilson stated that significant changes were made to his report of the October 29, 1994 shooting, and that he signed the final statement under duress.
The Government turned over to the defense copies of all of the versions of both Officers' reports as Jencks material, and has supplied the Defendant with the entire report of the Secret Service Inspection Division with respect to the incident as possible Brady material.
"The Jencks Act does not contemplate automatic sanctions even when the material has been rendered completely unavailable through loss or destruction." United States v. Rippy, 196 U.S. App. D.C. 243, 606 F.2d 1150, 1154 (D.C. Cir. 1979). Rather, in determining whether sanctions should be imposed for an alleged Jencks Act violation, the trial court must "weigh the degree of negligence or bad faith involved, the importance of the evidence lost, and the evidence of guilt adduced at trial, in order to come to a determination that will serve the ends of justice." United States v. Bryant, 142 U.S. App. D.C. 132, 439 F.2d 642, 653 (D.C. Cir. 1971). Accord United States v. Lam Kwong-Wah, 288 U.S. App. D.C. 54, 924 F.2d 298, 310 (D.C. Cir. 1991). "The trial judge's effort must be to see that the defendant has access to previous statements of a witness to the fullest extent possible . . . . Whether the testimony is stricken or barred in advance, however, is in the discretion of the trial judge if eliminating the witness' testimony would restrict the search for truth rather than assist it in the instant and future cases." United States v. Perry, 153 U.S. App. D.C. 89, 471 F.2d 1057, 1063 (D.C. Cir. 1972).
Here, in the exercise of its discretion, the Court finds that ends of justice would best be served by allowing Officer Tejeda to testify, and by allowing the Government to go forward with Count Four of the Superseding Indictment charging the Defendant with assault against Officer Tejeda.
First, the Court finds that the obligations mandated by the Jencks Act have been satisfied in major part in this case, as the Defendant learned of the alleged Jencks Act violations because of the discovery made available to him by the Government pursuant to that statute.
Second, the Court finds that the extent of non-compliance is in no way tantamount to bad faith, as Officer Tejeda and Lt. Taylor were highly credible witnesses who supported their accounts under vigorous cross-examination. In contrast, Officer Schmidt, who testified on direct examination that he kept drafts of both Officers' statements because he was uncomfortable with the changes made by Lt. Taylor, impressed the Court as both self-contradictory and incredible.
Although it is undisputed that Officer Tejeda's first handwritten draft report of the White House shooting incident on October 29, 1994 was not saved, it is clear from his testimony that Officer Tejeda was wholly inexperienced in the preparation of such reports and acted purely in good faith. Moreover, according Inspector Pendergast's testimony, the modifications suggested by Lt. Taylor were not inconsistent with any Secret Service policy which, at least at that time, left the decision regarding whether to retain a draft report to the individual officer's discretion. Finally, the Court has reviewed the proffered testimony of Officer Wilson pursuant to counsel's stipulation, and finds that Officer Wilson's statement does nothing to change the Court's finding that no bad faith has been shown.
Third, the Court cannot find that the absence of Officer Tejeda's first handwritten draft report in any way jeopardizes the Defendant's case. Rather, the documents at issue "were of such 'marginal utility' to the defense, that the failure to disclose them cannot be said to have prejudiced [the Defendant]." UnitedStates v. Lam Kwong-Wah, 288 U.S. App. D.C. 54, 924 F.2d 298, 310 (D.C. Cir. 1991) (citation omitted). The documents merely demonstrate a dispute among the officers involved over technicalities having nothing to do with the merits of whether the Defendant attempted to murder the President of the United States, forcibly assaulted officers of the United States, possessed a firearm, injured property of the United States, carried and used a firearm during a crime of violence, or transported a firearm in interstate commerce. At best, the Defendant has been deprived of cumulative impeachment evidence. Indeed, as lead counsel for the Government stated, all of this has inured for the benefit of the Defendant in that his attorneys may now cross-examine Government witnesses on the basis of these technical violations.
In sum, based upon the information presented to the Court by the Defendant and the Government, as well as the testimony adduced at the hearing, the Court is compelled to conclude that, while it would have been better to have saved every attempted draft of these incident reports, the alleged Jencks Act violations are tantamount to nothing more that a technical violation of 18 U.S.C. § 3500 for which neither the exclusion of Officer Tejeda's testimony, nor the dismissal or severance of Count four, is warranted.
The Bryant Court did emphasize, however, that the Government must show that it has "promulgated, enforced and attempted in good faith to follow rigorous and systematic procedures designed to preserve all discoverable evidence gathered in the course of a criminal investigation." Bryant, 439 F.2d at 652. It appearing that the Secret Service Uniformed Division, at least at the time of the destruction of the draft reports in question, did not follow such critical procedures, the Court has directed counsel for the Government and counsel for the Defendant to submit pleadings regarding whether a missing evidence instruction to the jury is appropriate. At the March 17, 1994 hearing, counsel for the Government suggested such a remedy, and represented that the Government would be agreeable to it.
March 19Th, 1995
CHARLES R. RICHEY
UNITED STATES DISTRICT COURT