Filed: Sep. 18, 1996
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FIFTH CIRCUIT _ No. 91-8583 No. 91-8610 No. 94-50789 _ UNITED STATES OF AMERICA, Appellee, versus ROY LEE HODGKISS, Appellant. Appeal from the United States District Court For the Western District of Texas (W-90-CR-121-1) September 16, 1996 Before WIENER, EMILIO M. GARZA, Circuit Judges, and LITTLE,* District Judge. PER CURIAM:** In United States v. Thomas, 12 F.3d 1350 (5th Cir.), cert. denied, _ U.S. _, 114 S. Ct. 1861 , _ L. Ed. 2d (1994), we affirmed the convic
Summary: UNITED STATES COURT OF APPEALS FIFTH CIRCUIT _ No. 91-8583 No. 91-8610 No. 94-50789 _ UNITED STATES OF AMERICA, Appellee, versus ROY LEE HODGKISS, Appellant. Appeal from the United States District Court For the Western District of Texas (W-90-CR-121-1) September 16, 1996 Before WIENER, EMILIO M. GARZA, Circuit Judges, and LITTLE,* District Judge. PER CURIAM:** In United States v. Thomas, 12 F.3d 1350 (5th Cir.), cert. denied, _ U.S. _, 114 S. Ct. 1861 , _ L. Ed. 2d (1994), we affirmed the convict..
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UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 91-8583
No. 91-8610
No. 94-50789
____________
UNITED STATES OF AMERICA,
Appellee,
versus
ROY LEE HODGKISS,
Appellant.
Appeal from the United States District Court
For the Western District of Texas
(W-90-CR-121-1)
September 16, 1996
Before WIENER, EMILIO M. GARZA, Circuit Judges, and LITTLE,*
District Judge.
PER CURIAM:**
In United States v. Thomas, 12 F.3d 1350 (5th Cir.), cert.
denied, __ U.S. __,
114 S. Ct. 1861, __ L. Ed. 2d (1994), we
affirmed the convictions and sentences of Roy Lee Hodgkiss and his
*
District Judge of the Western District of Louisiana, sitting by
designation.
**
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in Local Rule 47.5.4.
co-defendants, but we remanded “to permit the district court to
determine in the first instance whether the notes described herein
constitute either Jencks Act or Brady material.” 12 F.3d at 1373.
The Government submitted debriefing notes written by the
investigating agents as to twenty-two individuals, some of whom
were plea bargaining co-defendants. Of this material, the district
court, believing that it was only directed to examine the “rough
notes,” reviewed only a single set of handwritten notes and
concluded that they constituted neither Jencks Act nor Brady
material. Pursuant to an order by the district court, the
Government subsequently destroyed all the trial exhibits and
evidence utilized in the case, including the original files
pertaining to the twenty-two individuals. Copies of the files,
however, were retained, and this Court issued an order remanding
the case once again to the district court to allow it to review all
of the notes submitted by the Government. The district court
issued an order stating that it had reviewed all of the submitted
documents and found no Jencks Act or Brady material.1 Hodgkiss now
challenges the district court’s order as not containing
sufficiently detailed findings. Hodgkiss also contends that we
should remand a third time because the Government did not provide
the district court with all of its debriefing materials for the
1
The documents were transmitted under seal to this Court for purposes
of review on appeal.
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plea bargaining defendants, contrary to this Court’s instructions.
Finally, Hodgkiss requests that we remand in order to allow the
district court to determine whether the Government destroyed some
of its debriefing material.
In Brady v. Maryland, 373 U.S. 83,
83 S. Ct. 1194,
10 L. Ed.
2d 215 (1963), the Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of
the
prosecution.” 373 U.S. at 87, 83 S. Ct. at 1196-97. The Brady
rule has been extended to cover not only exculpatory evidence, but
also evidence that might be valuable in impeaching government
witnesses. United States v. Bagley,
473 U.S. 667, 676,
105 S. Ct.
3375, 3380,
87 L. Ed. 2d 481 (1985). Furthermore, the duty to
produce such material exists even if the defense fails to make a
specific request, or any request at all. United States v. Agurs,
427 U.S. 97, 107, 111-12,
96 S. Ct. 2392, 2399, 2401,
49 L. Ed. 2d
342 (1976).2
The determination we must make at this stage in the
proceedings is whether the district court should be required to
hold an additional in camera inspection of the notes the Government
2
The Agurs Court did note, however, that whether the request was
specific or not may affect the determination of whether the nondisclosure, when
it does come to light, was “material” or not. 427 U.S. at 106-07,
110-111, 96
S. Ct. at 2399, 2401-02; see also Pennsylvania v. Ritchie,
480 U.S. 39, 58 n.15,
107 S. Ct. 989, 1002 n.15,
94 L. Ed. 2d 40 (1987) (same).
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has already submitted. We think not. While the district court's
findings on the Brady issue were rather cursory, we believe that
they were sufficiently detailed to enable us to review its
decision. See Storer Communications, Inc. v. Presser, 828 F.2d
330, 335 (6th Cir. 1987) (holding that, on remand, district court
judge should examine materials in question and "make the required
Brady determination"); U.S. v. Lehman,
756 F.2d 725, 730 (9th Cir.
1985) (holding that if, on remand, the district court found no
Brady violation, "it should transmit written findings to this court
for its further consideration"). This is especially true given
that Hodgkiss's requests for Brady and Jencks Act material were
general ones, and rather speculative. The district court could
hardly have been expected to provided more detailed findings on
these requests than it did. Indeed, our independent examination of
the debriefing notes has not disclosed any Brady material. We
therefore affirm the district court’s findings on this point.3
For similar reasons, we conclude that the district court’s
findings that the debriefing notes do not contain any Jencks Act
material should also be affirmed. The Jencks Act requires the
production of written statements by a government witness where the
written “statement” is within the scope of the direct examination,
3
We also decline to remand to have the district court conduct an in
camera inspection of any debriefing notes the Government may allegedly still have
in its possession. There is no proof that the Government failed to provide the
district court with all of the debriefing notes at issue.
-4-
and where the statement is either a substantially verbatim recital
of an oral statement by the witness, or a written statement signed
or otherwise adopted or approved by the witness. 18 U.S.C. § 3500;
United States v. Pierce, 893 F.2d 669, 675 (5th Cir. 1990), cert.
denied,
506 U.S. 1007,
113 S. Ct. 621,
121 L. Ed. 2d 554 (1992).
In Thomas, we determined that the debriefing notes were not
discoverable under the Jencks Act as “statements” of the plea
bargaining defendants because defendants had failed to produce at
trial any evidence, through cross-examination or otherwise, that
any of the Jencks Act conditions were
met. 12 F.2d at 1364. We
declined to address, however, whether the debriefing notes
constituted Jencks Act statements of the testifying agents and
instructed the district court to address this issue on remand.
Id.
at 1365 n.25; see United States v. Welch,
810 F.2d 485, 490 (5th
Cir.) (noting that government agent had done more than simply
conduct witness interviews after the fact, and holding that an
agent’s investigation report may constitute a Jencks Act statement
of the agent), cert. denied,
484 U.S. 955,
108 S. Ct. 350, 98 L.
Ed. 2d 376 (1987). In light of the circumstances of this case, we
conclude that the district court’s findings are adequate and that
remand is not required. See Goldberg v. United States,
425 U.S.
94, 111 (holding that, on remand, district court should make a
Jencks Act inquiry into certain materials and then "supplement the
record with findings"); Campbell v. United States,
365 U.S. 85, 99
-5-
(same).4
Finally, we conclude that there is no need to remand to the
district court for a determination of whether the Government has
destroyed evidence that may be discoverable under Brady or the
Jencks Act. Although the originals were destroyed, copies of the
debriefing statements as to twenty-two individuals first submitted
to the district court were retained and resubmitted pursuant to our
second remand order, as is evident from a comparison with the
district court’s first order. There is simply no evidence to
indicate that the Government destroyed any Jencks Act or Brady
material, or that the Government acted in bad faith when it
requested permission from the district court to destroy the trial
exhibits and documents in this case. See, e.g., United States v.
Cole, 634 F.2d 866, 868 (5th Cir.) (no violation of Jencks Act
where agent’s notes destroyed in good faith), cert. denied,
452
U.S. 918,
101 S. Ct. 3055,
69 L. Ed. 2d 422 (1981); United States
v. Martin,
565 F.2d 362, 363-64 (5th Cir. 1978) (holding Jencks Act
and Brady were not violated where agent’s notes were destroyed in
good faith and there was no independent showing that they might
4
On appeal, Hodgkiss contends that the Government failed to produce
the debriefing materials for one of the plea bargaining defendants who testified
for the Government, Mr. Robert Bruce Thomas. As noted above, we already
determined in Thomas that none the notes were discoverable under the Jencks Act
as statements of the plea bargaining defendants. 12 F.3d at 1364. Moreover,
Hodgkiss’s claim that a debriefing statement exists for Thomas is entirely
speculative. On cross-examination, Thomas stated that he did not make any
statement in writing and that he did not observe any of the agents taking notes
during his debriefing by the government. Accordingly, we find that remand as to
this alleged debriefing statement is also not necessary.
-6-
contain material evidence). Accordingly, because this allegation
is merely speculative in nature, we find that remand is not
required.
For the foregoing reasons, we AFFIRM the district court’s
order in No. 91-8610 and No. 94-50789. Accordingly, we also AFFIRM
the convictions and sentences in No. 91-8583.
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