1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-23-1994

United States of America v. Ramos

Precedential or Non-Precedential:

Docket 93-1220

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UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

Nos. 93-1220 and 93-1222 

___________ 

UNITED STATES OF AMERICA 

 vs. 

ELIZABETH RAMOS, a/k/a Lisi 

 Elizabeth Ramos, 

 Appellant No. 93-1220

___________ 

 UNITED STATES OF AMERICA 

 vs. 

 MARIA RAMOS, a/k/a "Donita" 

 Maria Ramos, 

 Appellant No. 93-1222

___________ 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

(D.C. Criminal Nos. 90-00431-41 and 90-00431-40) 

___________ 

ARGUED OCTOBER 25, 1993 

BEFORE: BECKER, ROTH and LEWIS, Circuit Judges. 

(Filed June 23, 1994) 
___________ 

Thomas Q. Ciccone, Jr. (ARGUED) 

1004 Sorrel Road 

Huntingdon Valley, PA 19006 

 Attorney for Appellant Elizabeth Ramos

Robert E. Madden (ARGUED) 

Law Offices of Robert E. Madden 

1401 Walnut Street 

Suite 300 

Philadelphia, PA 19102 

 Attorney for Appellant Maria Ramos

Kristin R. Hayes 

Robert A. Zauzmer (ARGUED) 

Office of United States Attorney 

615 Chestnut Street 

Suite 1250 

Philadelphia, PA 19106 

 Attorneys for Appellee

___________ 

OPINION OF THE COURT 

___________ 

LEWIS, Circuit Judge. 

 We confront, once again, a problem which no court, 

trial or appellate, should have to face in this circuit. Although 

we have unequivocally required since 1977 that government agents 

preserve rough notes of interviews with prospective trial 

witnesses, see United States v. Vella, 562 F.2d 275 (3d Cir. 

1977) (per curiam), this case presents yet another instance in 

which notes were destroyed. We do not reverse here because it is 
apparent to us that the destroyed notes did not constitute Jencks 

Act1 or Brady2 material and that the officers who destroyed them 

acted in good faith. Nonetheless, we take this opportunity to 

emphasize that the fortuitous mix of legal and factual 

circumstances which might excuse the destruction of notes, and 

thus constrain us to leave a conviction undisturbed, are few and 

far between. We should not encounter such cases in the future. 

I. 

 Appellants Maria and Elizabeth Ramos, mother and 

daughter, were convicted of conspiracy to distribute cocaine and 

cocaine base, possession of cocaine with intent to distribute and 

related charges arising out of their involvement in a 

family-operated drug ring. The original indictment targeting the 

Ramos family conspiracy charged 39 defendants, including three of 

Maria Ramos's sons, with various drug distribution and possession 

charges. The majority of those charged began to cooperate, and a 

superseding indictment followed. Maria Ramos and Elizabeth Ramos 

were first charged in the superseding indictment. 

 At trial, the government's case against the Ramoses was 

supported by the testimony of 13 co-conspirators who cooperated 

pursuant to plea agreements. The government agrees that "the 

testimony of co-conspirators was the cornerstone of the evidence 

against the defendants." Government's brief at 12 n.2. 

 Detective James Moffit and his partner, Sergeant Gerald 

Logan, interviewed the cooperating witnesses and took notes 

 

1 18 U.S.C. § 3500. 

2 Brady v. Maryland, 373 U.S. 83 (1963). 
during their initial debriefings, or "proffers," in late 1990 or 

early 1991. Both were long-time Philadelphia police officers who 

began working with the federal government on this investigation 

in the fall of 1989 in association with the federal Drug 

Enforcement Administration ("DEA"). Logan described himself as 

being "assigned" to the DEA; Moffit termed his position as one in 

which he was "detailed" or "cross-designated" to the DEA. App. 

at 1060, 1277, 2263. Both had been "sworn in" by the DEA and 

were issued DEA credentials. See app. at 1278. 

 It is undisputed that Moffit and, apparently, Logan3

destroyed their notes after they prepared summary reports 

("DEA-6s"). Appellants contend that this destruction mandated 

suppression of the officers' testimony or a mistrial, both of 

which the district court denied. (Elizabeth Ramos had moved for 

production of the notes prior to trial, while Maria Ramos first 

raised the issue of the destruction of the notes during Moffit's 

cross-examination at trial; it was her counsel who initially 

moved for a mistrial and for suppression of Moffit's testimony. 

See generally app. at 1285-96.) 

 

3Though not disputed, whether both officers or only Moffit 

destroyed notes remains unclear. Appellants focus on 

Moffit, but the government speaks in the plural, discussing 

the "officers' destruction of notes." Because both Moffit 

and Logan took notes, we will presume for purposes of this 

appeal that they were both involved in or at least aware of 

their destruction. The issue becomes material only when 

discussing their prior training, a point at which both 

appellants and the government seem content to rest on a 

discussion of Moffit's experience in any event. See infra

note 7. 
 The district court exercised jurisdiction over this 

case pursuant to 18 U.S.C. § 3231, and we do so pursuant to 28 

U.S.C. § 1291. To the extent appellants contend that the 

government's actions violated the rule set forth in Brady v. 

Maryland, 373 U.S. 83 (1963), we review the district court's 

legal conclusions de novo and its factual findings for clear 

error. United States v. Thornton, 1 F.3d 149, 158 (3d Cir. 

1993); United States v. Hill, 976 F.2d 132, 134 (3d Cir. 1992). 

We review the district court's denial of the appellants' motion 

based on a claim of Jencks error for abuse of discretion. Hill, 

976 F.2d at 139.4

II. 

 Criminal pretrial discovery is, of course, vastly 

different from discovery in civil cases. In contrast to the 

wide-ranging discovery permitted in civil cases, Rule 16 of the 

Federal Rules of Criminal Procedure delineates the categories of 

information to which defendants are entitled in pretrial 

discovery in criminal cases, with some additional material being 

 

4 In addition to the destruction of notes issue, appellants 

contend that their trial was marred by impermissible 

vouching because the government (1) referred to the 

truthfulness provisions of the cooperating witnesses' plea 

agreements, (2) elicited certain testimony from Moffit about 

accomplices who had not testified and referred to those 

persons in its closing argument, and (3) referred to nontestifying family members in its closing argument. The 

Ramoses also argue that in describing the plea agreements 

during its charge to the jury, the trial court improperly 

instructed that "it is up to the government to decide 

whether the defendant has cooperated and provided truthful 

information," thus buttressing the government's effort to 

bolster those witnesses' credibility. We find no merit to 

these contentions. 
discoverable in accordance with statutory pronouncements and the 

due process clause of the Constitution. The Jencks Act requires 

that after each government witness has testified on direct 

examination, the government must produce to the defense "any 

statement" made by the witness which relates to his or her 

testimony. In Brady, the Supreme Court held that due process 

required that the government produce all "exculpatory" evidence, 

which includes both "[m]aterials . . . that go to the heart of 

the defendant's guilt or innocence and materials that might 

affect the jury's judgment of the credibility of a crucial 

prosecution witness." United States v. Hill, 976 F.2d 132, 

134-35 (3d Cir. 1992). See Giglio v. United States, 405 U.S. 

150, 154 (1972); United States v. Perdomo, 929 F.2d 967, 970 (3d 

Cir. 1991) (citing Moore v. Illinois, 408 U.S. 786 (1972) ("[a] 

valid Brady complaint contains three elements: (1) the 

prosecution must suppress or withhold evidence, (2) which is 

favorable, and (3) material to the defense")). See generally

United States v. Starusko, 729 F.2d 256, 260 (3d Cir. 1984). 

 In United States v. Vella, 562 F.2d 275 (3d Cir. 1977) 

(per curiam), we held that "the rough interview notes of F.B.I. 

agents should be kept and produced so that the trial court can 

determine whether the notes should be made available to the 

[defendant] under the rule of Brady . . . or the Jencks Act." 

Vella, 562 F.2d at 276. See also United States v. Ammar, 714 

F.2d 238, 259 (3d Cir. 1983) (extending rule to require 

preservation of rough drafts of agents' reports); United States 

v. Harris, 543 F.2d 1247 (9th Cir. 1976); United States v. 
Harrison, 524 F.2d 421, 428-29 (D.C. Cir. 1975). Since then, the 

DEA has apparently adopted an internal policy requiring such 

retention. See government's brief at 34. But we need not decide 

whether our holding in Vella or the DEA's policy was followed in 

this case; there is simply no question that they were not. 

Instead, the only question before us is: what should be done 

about a clear failure to follow established rules and policy? 

 In Vella and Ammar, we explained the requirement for 

retaining rough notes of interviews in such unambiguous terms 

that it would be futile to try to elucidate further here, for 

what we meant cannot be stated more clearly. See Ammar, 714 F.2d 

at 259 ("the government must retain and, upon motion, make 

available to the district court both the rough notes and the 

drafts of reports of its agents to facilitate the district 

court's determination whether they should be produced"); Vella, 

562 F.2d at 276 ("rough interview notes should be kept and 

produced"). Though we did not address the point directly, 

arguably a case could be made that the unequivocal tone of our 

decisions in these cases implied that we would reverse a 

conviction where the government failed to abide its 

responsibility (indeed, its legal obligation), no matter what 

factors might have contributed to the destruction of notes or 

drafts of reports. Cf. United States v. Parker, 549 F.2d 1217 

(9th Cir. 1977) (violation of Harris rule "might arguably" have 

required reversal but for court's decision not to apply it 

retroactively). We have not previously stated explicitly whether 
our holding in Vella established a per se rule or one which is 

subject to a "good faith exception" or harmless error analysis. 

 A careful reading of both Vella and Ammar, however, 

suggests that we did not imply a rule which would automatically 

preclude evidence based upon destroyed rough notes, without 

regard for other considerations. In Vella, without elaboration, 

we stated that "in light of the other evidence in the record, as 

well as the apparent good faith administrative decision which led 

to the destruction of the notes, the error must be considered 

harmless." Vella, 562 F.2d at 276. Similarly, in Ammar, we 

refused to find an alleged Jencks Act violation in the 

destruction of rough drafts because (1) the handwritten drafts 

had not been shown to the agent's supervisor for adoption or 

approval, and (2) the agent had testified that the rough drafts 

and final reports were "substantially identical," so that even if 

the drafts were Jencks Act material their destruction was 

harmless. Ammar, 714 F.2d at 259-60. We see no reason not to 

undertake a similar analysis in this case; the mere fact that 

Vella and Ammar each established rules for the government to 

follow does not suggest that we intended the automatic 

suppression of evidence when those rules are violated. 

 Our decision is informed by Arizona v. Youngblood, 488 

U.S. 51 (1988), a case in which the Arizona police had failed to 

preserve semen samples from the body and clothing of a victim of 

a sexual assault. The defendant contended that the failure to 

preserve the evidence had deprived him of due process. The 

Supreme Court disagreed. It concluded that although Brady "makes 
the good or bad faith of the State irrelevant when [it] fails to 

disclose to the defendant material exculpatory evidence[,] the 

due process clause requires a different result when we deal with 

the failure of the State to preserve evidentiary material of 

which no more can be said than that it could have been subjected 

to tests, the results of which might have exonerated the 

defendant." Youngblood, 488 U.S. at 57. Thus, "unless a 

criminal defendant can show bad faith on the part of the police, 

failure to preserve potentially useful evidence does not 

constitute a denial of due process of law." Id. at 58. See also

California v. Trombetta, 467 U.S. 479 (1984) (police officers' 

failure to preserve breath samples which had been subjected to 

Intoxilyzer testing did not violate the Constitution when (1) the 

officers were acting "in good faith and in accord with their 

normal practice," (2) the chances that preserved samples would 

have been exculpatory were "extremely low," and (3) the 

defendants had other means of challenging the Intoxilyzer 

results); United States v. Deaner, 1 F.3d 192, 199-201 (3d Cir. 

1993) (district court did not err in relying on the government's 

evidence of the weight of marijuana plants in sentencing 

defendant despite the government's destruction of the plants 

without producing them to the defendant); United States v. 

Barton, 995 F.2d 931 (9th Cir. 1993) (government's negligent 

destruction of marijuana plants which possibly could have 

disproved agents' statement in affidavit of probable cause held 

not violative of due process absent a showing of bad faith on the 

agents' part). 
 Youngblood and Trombetta indicate that we should apply 

a "good faith" test to destruction of evidence. In this case, 

since the appellants raised Brady and Jencks Act issues, we will 

first proceed to analyze whether either Brady or Jencks Act 

material might have been present in the destroyed notes. Only 

after ascertaining that it was not present will we move on to a 

good faith analysis.5

A. 

 We may quickly dispose of the Jencks Act issues. The 

Jencks Act requires a court, upon motion of the defendant and 

after direct examination of a government witness, to order the 

United States to produce to the defense "any statement . . . of 

the witness in [its] possession . . . which relates to the 

subject matter as to which the witness has testified." 18 U.S.C. 

§ 3500(b). Leaving aside "statements" which are transcriptions 

or recordings of grand jury testimony, a "statement" within the 

meaning of the Jencks Act is: 

 (1) a written statement made by said 

witness and signed or otherwise adopted or 

approved by him; [or] 

 (2) a stenographic, mechanical, 

electrical, or other recording, or a 

transcription thereof, which is a 

substantially verbatim recital of an oral 

statement made by said witness and recorded 

 

5 In one respect, the issue we address here is both simple and 

benign, for, as we discuss below, there is neither a 

reasonable possibility of the destroyed notes having 

contained Jencks Act or Brady material nor a scintilla of 

evidence tending to show that the destruction occurred in 

bad faith. 
contemporaneously with making of such oral 

statement. 

18 U.S.C. § 3500(e). 

 The destroyed rough notes fall into neither of these 

categories. They clearly do not constitute "statements" of the 

cooperating co-conspirators, for they are neither "substantially 

verbatim recitals" of what those witnesses said during their 

proffers nor writings which they signed or otherwise adopted or 

approved.6 United States v. Gross, 961 F.2d 1097, 1104-05 (3d 

Cir. 1992); United States v. Starusko, 729 F.2d 256, 263 (3d Cir. 

1984); cf. Palermo v. United States, 360 U.S. 343, 350 (1959) (it 

would be "grossly unfair" to permit defendants to attempt to 

impeach witnesses with statements "which could not fairly be said 

to be the witness' [sic] own rather than the product of the 

investigator's selections, interpretations and interpolations"). 

See United States v. Foley, 871 F.2d 235, 238-39 (1st Cir. 1989); 

United States v. Ricks, 817 F.2d 692, 698 (11th Cir. 1987). Nor 

are they "statements" of Moffit or Logan, for they are by no 

means "substantially verbatim" recitals of anything Moffit or 

Logan said. Further, unlike the DEA-6s themselves, they do not 

constitute writings which the officers later adopted in any way. 

See United States v. Griffin, 659 F.2d 932, 937-38 (9th Cir. 

 

6 See app. at 392-93, 570, 803, 1048-49, 1069, 1081, 1083, 

1491, 1530-31, 1633 (testimony of Moffit and various 

witnesses testifying pursuant to plea agreements). We may 

rely on such secondary evidence in determining whether 

missing or destroyed notes contained Jencks Act material. 

See United States v. Cole, 634 F.2d 866, 869 (5th Cir. 1981) 

(per curiam). 
1981). Accordingly, we conclude that the destroyed notes did not 

constitute Jencks Act material. 

B. 

 The Brady issue is more complex. In Vella, we relied 

on United States v. Harrison, 524 F.2d 421 (D.C. Cir. 1975), in 

requiring preservation of rough notes. The Harrison court 

explained: 

 It seems too plain for argument that 

rough notes from any witness interview could 

prove to be Brady material. Whether or not 

the prosecution uses the witness at trial, 

the notes could contain substantive 

information or leads which would be of use to 

the defendants on the merits of the case. If 

the witness does testify, the notes might 

reveal a discrepancy between his testimony on 

the stand and his story at a time when the 

events were fresh in his mind. The 

discrepancy would obviously be important to 

use in impeaching the witness' [sic] 

credibility. The possible importance of the 

rough notes for these purposes is not 

diminished in cases where the prosecutor 

turns over to the defense the . . . reports. 

The . . . reports contain the agent's 

narrative account of the witness's statement, 

prepared partly from the rough notes and 

partly from the agent's recollection of the 

interview. Although the agents are trained 

to include all the pertinent information in 

the . . . report, there is clearly room for 

misunderstanding or outright error whenever 

there is a transfer of information in this 

manner. In the best of good faith, the 

statement . . . may, to some degree at least, 

reflect the input of the agent. In such a 

situation, the information contained in the 

rough notes taken from the witness himself 

might be more credible and more favorable to 

the defendant's position. 

Id. at 427-28 (footnote omitted). If, as some believe, our 

ability to know something is largely determined by that to which 
we have been exposed and by the varying capacities of our sensory 

perception and reasoning skills, then Harrison essentially states 

the obvious: it is impossible to know for certain whether or not 

rough notes which have been destroyed would have been 

exculpatory, or whether their exculpatory nature would have been 

apparent to the agents at the time of the destruction, because 

they are no longer here for us to see, to analyze, to interpret. 

Whatever truths might have been gleaned from them, and whatever 

contributions these truths might have offered to the doing of 

justice, were destroyed along with the notes themselves. Thus, 

if the evil sought to be eliminated by requiring preservation of 

notes was the uncertainty about whether the notes would have 

contained Brady material, then excusing their destruction as long 

as it was done in good faith would seem to undercut both the rule 

and its purpose. It is difficult to imagine, for example, how a 

court could determine whether the exculpatory nature of an 

agent's notes would have been apparent to the agent before 

destruction without first reviewing the notes. Similarly, 

without knowing what inconsistencies, if any, the notes 

contained, a court will undoubtedly find it difficult (if not 

impossible) to decide whether the defendant seeking production 

had other opportunities to make the same arguments he or she 

could have made with the notes. 

 Nevertheless, the mere possibility that the destroyed 

notes might have included Brady material, without more, is 

insufficient to implicate such concerns. We think it unwise to 

infer the existence of Brady material based upon speculation 
alone. Instead, we favor the approach taken by the United States 

Court of Appeals for the Ninth Circuit in Griffin, that "unless 

[a] defendant is able to raise at least a colorable claim that 

the investigator's discarded rough notes contained evidence 

favorable to [him] and material to his claim of innocence or to 

the applicable punishment -- and that such exculpatory evidence 

has not been included in any formal interview report provided to 

defendant -- no constitutional error of violation of due process 

will have been established." Griffin, 659 F.2d at 939. At the 

risk of pushing understatement to the brink of rationality, we 

acknowledge, as did the court in Griffin, that attempting to make 

such a showing by examining the agents and interviewees or using 

other documentary evidence is "not as ideal" as examination of 

the notes themselves would be. To conclude otherwise, however, 

would be to read Brady too broadly, requiring "the government to 

preserve all material even arguably related to the criminal 

transaction." Id. at 939 & n.7. 

 In this case the defendants have offered nothing beyond 

their speculation that the agents' notes might have contained 

Brady material. In response, the government indicated that 

Moffit had incorporated everything contained within the notes 

into the DEA-6s. App. at 1448, 1452. Cf. app. at 1282. There 

was no suggestion by anyone in a position to know (that is, the 

witnesses or the officers) that the DEA-6s differed in any way 

from the oral proffers that would have been reflected in the 

destroyed notes. Further, at trial the district court examined 

all the notes that had been preserved from later witness proffers 
and ordered production of about 20 pages. These pages did not 

reveal any Brady material and defense counsel chose not even to 

cross-examine Moffit with regard to them. (While we draw no firm 

conclusion here, this at least tends to indicate that the chances 

of damaging material existing in the destroyed notes were 

somewhat remote, assuming the officers were consistent 

throughout, both in their method and practice of transcribing 

their written notes.) Appellants have not raised a colorable 

claim that the destroyed notes contained exculpatory material 

that was material to their defense and was not included within 

the DEA-6s. Therefore, we conclude that the destruction of the 

notes did not constitute a Brady violation. Cf. United States v. 

Michaels, 796 F.2d 1112, 1116 (9th Cir. 1986); United States v. 

American Radiator & Standard Sanitary Corp., 433 F.2d 174, 202 

(3d Cir. 1970) (both holding that defendants' mere speculation 

that Brady material might be present is insufficient to permit 

perusal of government files). 
C. 

 It is undisputed that Moffit and Logan destroyed their 

notes in good faith. They are Philadelphia police officers, not 

DEA agents, and Moffit testified that the federal practice of 

retaining records of a cooperating-witness interview is 

"completely different" from the Philadelphia police department's. 

App. at 1065-66. In the Philadelphia police department, at least 

at the time the events with which we are concerned took place, 

the officers "consider [notes] sensitive material" that they 

"don't leave . . . around at all." Id. at 1106. Philadelphia 

police officers retain the reports they draft based upon their 

notes but destroy the notes. Id. at 1108-09. 

 Moreover, Moffit received no special training and no 

orientation for his work with the DEA. App. at 1278.7 He was 

instructed as to the "general mechanics" of DEA-6s but was not 

told to preserve the notes he used in compiling the DEA-6s. Id. 

at 1280-83, 1285. Moffit testified that he believed he was 

following office procedure because he saw others destroying 

notes. Id. at 1283. 

 We are well aware of the critical contribution the DEA 

and its agents make to the national effort to control illegal 

drug trafficking and to combat illegal drug use. Indeed, we have 

not lost sight of the fact that the issue before us is derived 

 

7The initial Ramos indictment was the first federal indictment 

Moffit had assisted in procuring. App. at 1064. As noted 

previously, both appellants and the government have 

generally relied on Moffit's testimony regarding the 

training he received as representing the training both 

officers received. See supra note 3. 
precisely from that laudable and important campaign. But we 

cannot approve of the way in which Moffit and, presumably, Logan 

were trained. It is regrettable that the DEA failed to instruct 

officers affiliated with it to preserve the rough notes taken at 

proffer sessions, particularly after we have made it abundantly 

clear that it is required to do so and its own internal 

guidelines mandate that it do so. Our affirmance in this case is 

in no way intended to encourage or to permit lax compliance with 

the dictates of due process under the guise of good-faith 

ignorance. To the contrary, we expect more of the government. 

And if there were evidence indicating a deliberate or, under 

circumstances not present here, even a negligent contravention of 

the Vella rule, we would very likely reach a different 

conclusion. 

 As we have noted, however, in this case it seems clear 

that the officers (who, significantly, were only loosely 

connected to the DEA) were entirely unaware that they should 

preserve their notes, and that their past experience indicated 

that they were to destroy them. The defense has produced no 

evidence to the contrary, relying instead on speculation and the 

argument that contravention of the Vella rule automatically 

constitutes bad faith. See E. Ramos's brief at 18-23. We cannot 

rest our decision in this case on such conclusory allegations, 

and for the reasons discussed above, we decline the invitation to 

fashion a per se rule in this area. 

III. 
 In conclusion, because the destroyed notes did not 

constitute Jencks Act materials, there is nothing beyond 

speculation to indicate that they contained Brady material, and 

the officers clearly acted in good faith in destroying them, we 

will affirm the district court's denial of appellants' motion for 

suppression or, in the alternative, a mistrial. The judgment of 

conviction is affirmed.