UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
Criminal No. 84-255
Judge Joyce Hens Green
Motions Hearing and Trial: 9/17/84
ELLEN B. THOMAS
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS INFORMATION FOR DESTRUCTION OF EVIDENCE
In United States v. Bryant, 142 U.S.App.D.C. 132, 143, 439 F.2d 642, 653, Affirmed after remand, 145 U.S.App.D.C. 259, 448 F.2d 1182 (January 29, 1971), the United States Court of Appeals for the District of Columbia Circuit, relying on United States v. Augenblick, 393 U.S. 348 (1969), formulated a test for the imposition of sanctions in a case where the government had failed to preserve a tape recording of a narcotics transaction for which defendant was subsequently convicted. The Bryant test determination of the appropriate sanction requires the Court to "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." Id.
The government's discovery obligation includes a duty to preserve evidence for examination by the defense. United States v. Augenblick, 393 U.S. 348, 355-356 (1969) (government bears burden of producing discoverable Jencks Act material or explaining its inability to do so, and the government must make an nearness effort" to locate discoverable evidence). The duty of disclosure under Rule 16 is equally operative as a duty of preservation and the duty of preservation extends to investigative agencies. United States v. Bryant, 142 U.S.App.D.C. 132, 141, 439 F.2d 642, affirmed after remand, 145 U.S.App.D.C. 259, 448 F.2d 1182 (1971) citing United States v. Augenblick, supra.
Turning to instant government conduct, the government not only failed to take any action to preserve the camera and film intact for defense examination pursuant to lawful discovery, there is every indication of purposeful destruction of material evidence discoverable under Rule 16(a)(1)(C) of the Federal Rules of Criminal Procedure. The camera and film are lost despite repeated requests for preservation.
Wilful destruction of discoverable evidence requires the imposition of full sanctions. Certainly, such a finding is consistent with the direction of the United States Supreme Court which teaches, "In the face of a specific request, failure by the prosecutor to respond is seldom, if ever, excusable. United States v. Agurs, 427 U.S. 97, 106 (1976).
/s/Stephen G. Millliken
STEPHEN G. MILLIKEN
Milliken & Van Susteren, P.C.
511 E Street, N.W.
Washington, D.C. 20001
I hereby certify that a true copy of the foregoing was mailed, postage prepaid, to Assistant U.S. Attorney Pamela Stuart, U.S. Courthouse, Constitution Avenue and John Marshall Place, N.W., Washington, D.C. 20001; to Phyllis B. Tatik, Esquire, Juvenile Justice Clinic, 605 G Street, N.W., Third Floor, Washington, D.C. 20001; to Robert DeBerardinis, Esquire, 1534 16th Street, N.W., Washington, D.C. 20036; to Mark Venuti, Esquire, 2001 S Street, N.W., Suite 630, Washington, D.C. 20009; and to Richard Seligman, 2001 S Street, N.W., Suite 630, Washington, D.C. 20009; this 31ST day of July, 1984.
__/S/Stephen G. Milliken__
STEPHEN G. MILLIKEN