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In re J.W.

District of Columbia Court of Appeals

December 21, 2000


Before Steadman, Farrell and Glickman, Associate Judges.

The opinion of the court was delivered by: Steadman, Associate Judge

Appeal from the Superior Court of the District of Columbia

(Hon. Hiram E. Puig-Lugo, Trial Judge)

Argued September 21, 2000

This pretrial government appeal stems from a juvenile proceeding in which J.W. was charged with possession with intent to distribute marijuana. The trial court order suppressed any testimony about drug testing by the Drug Enforcement Agency when the chemist refused to submit to pretrial questioning by defense counsel except in the presence of government counsel. We reverse.


We must first address a challenge to the jurisdiction of this court to hear this appeal. A pretrial appeal by the government of a motion suppressing evidence is authorized by D.C. Code § 23-104(a)(1) "if the United States attorney or the Corporation Counsel conducting the prosecution for such violation certifies to the judge who granted such motion that the appeal is not taken for purpose of delay and the evidence is a substantial proof of the charge pending against the defendant." In the case before us, oral argument was heard by this court on September 21, 2000. A fully conforming certificate was not filed until September 26, 2000. *fn1

Although compliance with this statutory language may appear to be mandatory, the federal courts of appeal, in construing the very similar statute governing pretrial appeals of suppression orders by federal district courts, *fn2 have declined to treat the certification requirement as jurisdictional. Rather, the failure to certify prior to filing the notice of appeal is treated as a filing irregularity which may, but need not mandatorily, warrant dismissal of the appeal under Fed. R. App. P. 3(a)(2). *fn3 See United States v. Salisbury, 158 F.3d 1204, 1206 (11th Cir. 1998) (citing cases).

We conclude that D.C. Code § 23-104(a)(1) should be given the same construction. We have previously noted the similarity between the District and the federal statutes governing this type of pretrial criminal appeal. District of Columbia v. McConnell, 464 A.2d 126, 128 (D.C. 1983). Although our appellate rules do not contain the same provision as Fed R. App. P. 3(a)(2), we have declined to treat as jurisdictional prerequisites the failure to pay a filing fee and to provide a stated number of copies of the notice of appeal as required by our appellate rules. Montgomery v. Docter, Docter & Salus, 578 A.2d 176 (D.C. 1990). However, we pointedly observed in that case that "our holding today `does not leave [these rules] without other sanctions.'" Id. at 178 n.6 (quoting Parissi v. Telechron, Inc., 349 U.S. 46, 47 (1955) (per curiam)). *fn4

In United States v. Salisbury, supra, the government did not file the required certificate until one month after it filed the notice of appeal. The court observed that the certification requirement "serves the very important purpose of ensuring that the prosecutor carefully analyzes the case before deciding to appeal," and "furthers the vital underlying goal of preventing needless delay and prolonged worry in criminal proceedings." Id. at 1207. Since the record contained no indication that the decision to appeal "was based on a conscientious preappeal analysis," the court dismissed the appeal.

We share the concern that the certificate requirement be carefully observed. The certificate, when filed, is conclusive and not subject to substantive review by the appellate court. United States v. Jackson, 441 A.2d 937 (D.C. 1982). Every effort should be made by the government to carefully follow the precise statutory requirements, including that the certification be made by the attorney "conducting the prosecution" and that it be made "to the judge who granted such motion." *fn5

Although we shall expect such compliance and are prepared to impose "other sanctions," such as dismissal, in appropriate circumstances, *fn6 we will not do so in this particular case. The record before us reflects that the government made a considered decision. The original order of the trial court dismissed the case outright. The government asked the trial court to vacate the dismissal and enter the lesser sanction of precluding the government from entering any evidence resulting from the DEA analysis so that the government could take an expedited pretrial appeal. The trial court did change its order. The notice of appeal itself contained a statement that the appeal was not taken for purposes of delay, and the statute has since been fully complied with. We turn to the merits.


In November 1999, respondent J.W. was charged with possession with intent to distribute marijuana. On December 3, 1999, he requested documents and information regarding testing procedures and evidence-handling practices of the Drug Enforcement Agency Mid-Atlantic Laboratory ("DEA"). At a hearing on J.W.'s motion to compel discovery regarding DEA practice and procedure, the trial court ruled that Superior Court Criminal Rule 16 disclosure had been satisfied, and therefore did not order production of documents. However, the court did state that under D.C. Code § 33-556, *fn7 J.W. had the right to subpoena a DEA chemist, Lance Kvetko, for examination. The court stated that "[the chemist] has to be available to defense lawyers so that defense lawyers can privately interview [him] . . . regarding calibration of equipment."

Upon arrival, however, Mr. Kvetko declined to speak to defense counsel alone. The following exchange took place during the trial court proceeding:

THE COURT: Are you speaking with Ms. Flaum and Ms. Agorney [both defense counsel] are (sic) you choosing not to speak with her?

MR. KVETKO: I will speak --- I will speak with them under oath. That is my job.

THE COURT: I'm sorry.

MR. KVETKO: I will speak with them under oath. That is my job.

THE COURT: No. You will interview-- they want to interview you outside. Will you answer their questions?

MR. KVETKO: May I have both attorneys present, prosecution and [indiscernible].

THE COURT: Ms. Agorney, Ms. Flaum. [Pause]

MS. AGORNEY: Respectfully, Your Honor, we feel that having Mr. Rubenstien [government counsel] present will change the nature of the interview and will allow Mr. Rubenstien the scope of our cross and the basis for some of our defense. And, also, we just -- just want to make clear that we're not -- Mr. Rubenstien -- we're not [indiscernible] wrongdoing here at all. No Gregory issues or anything like that.

THE COURT: Case dismissed.

The trial court subsequently encapsulated its ruling as follows: "So this case was dismissed as a sanction for the Government because DEAs are governmental law enforcement agents, via chemists, infringing upon the respondent's Sixth Amendment right to present a defense and Fifth Amendment right to receive the process that he is due in this courtroom." *fn8 Although he initially concluded that the refusal justified dismissal of the prosecution, the trial court as already indicated subsequently granted the government's request to modify the ruling to simply exclude any evidence with respect to the DEA testing. *fn9


As we understand the trial court's ruling, it turns at bottom on the court's conclusion that the chemist was acting pursuant to orders by his superiors. *fn10 However, a trial court finding cannot stand if it is "without evidence to support it." D.C Code § 17-305(a). We can find no such evidence in the record before us. The chemist never asserted that he was acting under orders nor was he asked any questions in that regard. Respondent's counsel made no assertions to the trial court to that effect nor was he able to do so before us. To the contrary, government counsel informed the trial court that it had made every effort to produce such witnesses for defense counsel to examine. *fn11 Defense counsel acknowledged that government counsel had been as forthcoming as possible. *fn12

We are therefore unable to sustain the trial court ruling insofar as it rested on an unsupported factual basis. *fn13 However, we are left with the question whether such evidence must constitutionally or by statute be excluded where a chemist, acting on his own but as a DEA employee, refuses to be interviewed privately by defense counsel by way of pretrial discovery, but insists instead that government counsel be present. *fn14 We turn to that issue.


We start with some basic principles. The law is clear that the Sixth and Fifth Amendments are not violated when a prospective witness on his or her own initiative refuses to speak to defense counsel. Defense counsel does not have a right to interview a witness privately if the witness chooses independently not to be interviewed or to do so only on conditions. This court has repeatedly held that "the law does not require . . . access where witnesses for private reasons and absent government interference refuse to discuss the case with defense counsel." In re B.L.B., 432 A.2d 722, 725 (D.C. 1981); Khaalis v. United States, 408 A.2d 313, 336-39 (D.C. 1979) (upholding trial court ruling that witness could not be cross-examined about his personal decision not to speak with defense counsel); United States v. McDougald, 350 A.2d 375, 378 (1976) (due process not violated where "witnesses for private reasons and absent government interference refuse to discuss the case with defense counsel.") *fn15

A corollary to this principle, however, is that it is improper for the prosecution to interfere and affirmatively take steps to block such private interviews. This was the holding in Gregory v. United States, 125 U.S. App. D.C. 140, 369 F.2d 185 (1966). *fn16 In that case, a prosecutor instructed two eyewitnesses not to speak to the defense attorney unless he were present. The court stated:

Witnesses . . . are the property of neither the prosecution nor the defense. Both sides have an equal right, and should have an equal opportunity, to interview them. Here the defendant was denied that opportunity which . . . elemental fairness and due process required that he have . . . .[W]e know of nothing in the law which gives the prosecutor the right to interfere with the preparation of the defense by effectively denying defense counsel access to the witnesses except in his presence. Presumably the prosecutor, in interviewing the witnesses, was unencumbered by the presence of defense counsel, and there seems to be no reason why defense counsel should not have an equal opportunity to determine, through interviews with the witnesses, what they know about the case and what they will testify to . . . . We cannot indulge the assumption that this tactic on the part of the prosecution is necessary . . . . [The quest for truth] will more often be successful if both sides have an equal opportunity to interview the persons who have the information from which the truth may be determined. Id. at 188.

A strong showing of government interference is required: "While it is true that witnesses to a crime are the property of neither the prosecution nor the defense and that both sides have an equal right and should have an equal opportunity to interview them, it is equally true that reversal on this ground requires a clear showing that the government instructed the witness not to cooperate with the defendant." McDougald, 350 A.2d at 377, quoting United States v. White, 454 F.2d 435, 438-39 (7th Cir. 1971) (emphasis in original). The McDougald court further stated, "[T]he proper focus in Gregory should be the source of the directive, [as opposed to the witness's employment position] namely, the prosecutor." Id., at 377; see also Khaalis v. United States, 408 A.2d 313, 336-39 (D.C. 1979).

Since there was no showing here of any interference by the prosecution, much less any orders from the chemist's DEA superiors, the question then becomes whether the chemist's status as a DEA employee, standing alone, brings his personal decision not to speak to defense counsel except with government counsel present within the Gregory principle. *fn17 This was answered by In re B.L.B., 432 A.2d 722 (D.C. 1981), in which a police officer refused to speak to defense counsel, noting that "he relied on a written Special Order granting officers full discretion in determining whether to talk with defense counsel." Id. at 724. The court made clear that "[t]he status of the witness as a government employee is immaterial. Stated otherwise, police officers and other government law enforcement agents have the same right as private citizens to discuss or refuse to discuss pending cases with defense attorneys." Id. at 725. *fn18 See also United States v. Caldwell, 750 F.2d 341 (5th Cir. 1984) (no defense right to talk to federal correction officials who were acting as government witnesses and refused for personal reasons to be interviewed.) Since the chemist, without constitutional consequence, could have refused to speak with defense counsel at all, a fortiori he was entitled to condition such an interview on the presence of government counsel.


Even if, as a constitutional matter, no pretrial private interview of the chemist by defense counsel may be mandated, the possibility exists that such a right exists from other sources. *fn19

We first address the issue whether, even absent constitutional constraints, a right to a private interview of the chemist by defense counsel stems from D.C. Code § 33-556. In the language of the trial court:

D.C. Code § 33-556 discusses chemist reports and the procedures that surround their use before trial. That section of the Code gives the defense the right to cross-examine the chemist. Implicit in that right to cross-examine the chemist is access to the chemist. No cautious defense attorney will put on a witness without having spoken to the witness first.

Even if this view of the statute's effect may be correct (an issue we do not here need to address), it does not follow that defense counsel has the right to a private interview without the presence of counsel that the chemist might choose to insist upon. A party to a civil case does not have such a right to a private deposition, *fn20 and we are aware of no comparable defense right in the criminal area where, if anything, pretrial discovery is more limited. *fn21 We think such a departure from the normal procedure would be far more clearly spelled out in the statute if the legislature intended to confer any such right.


Finally, we address the argument that under standard principles of law relating to expert witnesses, the trial court had the right to condition the introduction of expert testimony on a private interview. It is, of course, true that the trial court has broad discretion over the admission of expert testimony, including the right "to production of the basis of an expert opinion, including reports prepared by others, before the expert testifies." Clifford v. United States, 532 A.2d 628, 634 (D.C. 1987); see also Coates v. United States, 558 A.2d 1148 (D.C. 1989). *fn22 Respondent's argument misconceives the procedural posture presented here. D.C. Code § 33-556 establishes the admissibility of the official report as a matter of right. The defendant may attempt to impeach that report through the testimony of the chemist. While it is true that the statute permits such examination to be "as on cross-examination," we see no basis upon which the trial court's control over the introduction of expert testimony can be expanded to the extent that respondent argues here: the exclusion of a report that the statute expressly states is admissible. We conclude that it would be an abuse of discretion for the trial court to exclude any evidence of the DEA drug testing simply because the chemist conditions the pretrial interview on the presence of government counsel.

The order suppressing evidence of the DEA tests is vacated and the case is remanded for further proceedings consistent with this opinion.

So ordered.

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