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UNITED STATES v. DURAN

March 19, 1995

UNITED STATES OF AMERICA
v.
FRANCISCO MARTIN DURAN, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 INTRODUCTION

 Before the Court are the Defendant's Motion to Exclude Testimony of Government Witness and to Dismiss or Sever Count Four for Jencks Act Violations, along with the Government's Opposition thereto. The Court held an evidentiary hearing on said Motion on March 17, 1995, and issued an Order that day denying the same. The Order also directed counsel for both parties to file a pleading regarding whether inclusion of a limiting instruction to the jury regarding the destruction of documents is appropriate, and required counsel to submit such an instruction to the Court. This Memorandum Opinion shall set forth the Court's reasons for its ruling.

  In his Motion, the Defendant claims that certain Jencks Act material *fn1" was destroyed in bad faith by Officer Harry Tejeda of the Secret Service, whom the Government intends to call as a witness in its case-in-chief. Officer Tejeda is also the alleged victim of forcible assault on an officer of the United States, *fn2" with which the Defendant is charged in Count four of the Superseding Indictment. Moreover, the Defendant asserts that an Officer Charles Wilson, also of the Secret Service, destroyed other Jencks material and that, though Officer Wilson is not on the Government's witness list, his actions inform the Defendant's claim that Officer Tejeda's destruction of a certain document was done in bad faith. Finally, the Defendant argues that a proper remedy for these alleged Jencks Act violations is exclusion of any testimony by Officer Tejeda and dismissal of the count charging assault upon him. In the alternative, the Defendant asserts that severance of Count four is a proper, though less desirable, remedy.

 In Opposition, the Government argues that, although it would have been better practice to retain the document in question, there is no evidence that Officer Tejeda acted in bad faith. In addition, the Government asserts that sanctions are inappropriate, as the missing handwritten draft did not contain material evidence that is not already available to the defense, and nothing precludes the defense from calling the officers involved to inquire about the incident and the contents of the missing document.

 BACKGROUND

 Officer Henry Tejeda, Lt. Tommy Taylor, Inspector Pendergast and Officer Timothy Schmidt, all of the United States Secret Service Uniformed Division, testified at the March 17, 1995 hearing.

 Officer Henry Tejeda was on duty at the White House on October 29, 1994, and responded to the shooting. On November 9, 1994, Officer Tejeda prepared a handwritten summary pertaining to his actions while stationed at the White House on October 29, 1994. Officer Tejeda submitted this summary to Lt. Scott Ferguson for review, and was advised that it contained to many references to specifics. Officer Tejeda then discarded this handwritten statement.

 Officer Tejeda testified that this handwritten summary was not a complete report, but merely a draft. Moreover, the report of the October 29, 1995 shooting was the first report he had prepared as a Secret Service Officer, a position he had held for approximately three months at the time of the shooting. Previously, Officer Tejeda had served in the Marines and worked as a security guard. At no point in his prior employment had Officer Tejeda completed such an incident report.

 Officer Tejeda drafted another handwritten summary for his supervisor's review. Two typed drafts of this statement were prepared and corrected by Lt. Tommy Taylor. A final typed statement was shown to Officer Tejeda. The drafts were typed by Officer Schmidt. Lt. Taylor testified that he had advised Officer Tejeda that it would be in his best interests to delete a reference in his second handwritten statement which could subject Officer Tejeda to discipline for abandoning his post while, in Lt. Taylor's view, Officer Tejeda had not abandoned his post. Accordingly, the final typewritten version of the statement did not contain any reference to Officer Tejeda's leaving his post. Officer Tejeda signed this statement and testified that, to the best of his knowledge, it was accurate and correct.

 In addition, Michael Pendergast, Inspector with the United States Secret Service Uniformed Division, testified that the Secret Service has no requirement that handwritten drafts of reports be retained. Rather, it is within the discretion of the individual officers to determine whether to keep such drafts.

 Finally, counsel for the Government and counsel for the Defendant stipulated that Officer Harry Wilson, if called as a witness, would testify to the matters contained the report prepared by the Office of Inspection regarding an interview with Officer Wilson. Government's Opposition at Exh. A, p.5. 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 ...


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