The opinion of the court was delivered by: Matthew F. Kennelly United States District Judge
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge
Pernorris Brownridge was tried on narcotics charges arising from his alleged involvement with a narcotics-dealing ring controlled by a street gang. At trial, Mr. Brownridge was represented by appointed counsel, David Neely. See Order of July 17, 2006 (docket no. 256, appointing counsel). He testified in his own defense. The thrust of the defense case, presented in significant part via Mr. Brownridge's own testimony, was that he had been coerced by violent members of the street gang to engage in narcotics-related activity.
During his direct examination, Mr. Brownridge testified regarding numerous incidents in which he had been the victim of violence, threats, and intimidation from gang members, including some of the cooperating witnesses who had testified against him during the government's case-in-chief. Mr. Brownridge also testified that at an earlier point in time (following the filing of a criminal complaint but before return of the indictment), he had cooperated with the government's investigation and to that end had participated in debriefing sessions with a prosecutor and law enforcement agents. On inquiry by his lawyer, Mr. Brownridge testified that he had attempted to discuss the coercion-related issues at his initial meeting with the prosecution team, but was told (by a law enforcement agent, it appears), that they were not interested in hearing about those matters, but only about the narcotics-related activities of Mr. Brownridge and various members of the street gang. Mr. Brownridge also testified that the government representatives had promised to put him in a witness protection program but had not followed up on that promise; he testified that since then, he had been the subject of further threats and intimidation from street gang members.
On cross examination, the prosecution sought to establish, as one of its primary lines of inquiry, that Mr. Brownridge had never mentioned the alleged coercion, threats, or intimidation during his meetings with a federal prosecutor and law enforcement agents. The prosecution also sought to elicit that despite his claims of living in fear, Mr. Brownridge had not sought assistance or help from the government (including from the prosecutor with whom he had met) during the period he was cooperating with the government.
The government called as a rebuttal witness Monika Bickert, the former prosecutor who had conducted the meetings with Brownridge during the period when he was cooperating with law enforcement. Before Ms. Bickert testified, defense counsel objected, saying that the government had not produced her notes of her interviews of Mr. Brownridge. The trial prosecutors reported that Ms. Bickert said she had not taken notes. Mr. Neely advised the Court that he had been at the meeting and "[s]he took notes right in front of me . . . . I can't testify, but she did take notes, and the agents took notes as well." Tr. 885. He further stated that "[w]e met with her on several occasions, and I recall her taking notes. I recall everyone in that room taking notes."
The Court conducted a short hearing outside the jury's presence at which Ms. Bickert testified that she had not taken notes during the first meeting with Mr. Brownridge and his lawyer, referred to as a "proffer" meeting. Tr. 888. She testified that at a second meeting a few days later, she prepared a statement for Mr. Brownridge to read before the grand jury, by typing the draft statement directly into her computer. Tr. 889-91. Ms. Bickert denied typing anything during the course of the initial proffer meeting. Tr. 889-90. She stated that prior to the second meeting at which the grand jury statement was prepared, she had "typed into my computer before the defendant arrived the beginning framework of that grand jury statement, and then it was a work in progress." Tr. 891. She printed out the first draft for Mr. Brownridge and Mr. Neely, "and then we worked on it together." Id. A law enforcement agent, whose name Ms. Bickert did not recall, was present during the session with Mr. Brownridge and Mr. Neely when the grand jury statement was prepared. Id. When asked whether the law enforcement agent(s) took notes, she said, "I think that the one agent was taking notes, yes." Tr. 892. She stated that at the initial proffer meeting, she did not take notes, but an agent did. Id.
The Court asked the trial prosecutors whether they had the agents' notes, and one of the prosecutors stated, "we have looked for them. We don't know who was there and where they are." Tr. 893. Ms. Bickert, asked by the Court what agent was there, said, "I am not positive, I should say, but I think the agent who was sitting by the door was Billy Warren, and I think the other one was probably one of the task force officers, and there are a number of them it could have bene." Id. She mentioned two other names of officers / agents who might have been there: Todd Smith or Will Svilar. Id. The Court asked the trial prosecutors to describe what they had done to locate the notes. One of the prosecutors stated that they were unable to identify the agents or officers who were present at the meetings. The prosecutor said that they had asked all of the DEA agents and "main task force officers" working on the case to go through their notes; no notes of the meetings with Mr. Brownridge were located. Tr. 894. The Court then asked Ms. Bickert, "When you were typing up the original draft of the proffer, did you use the notes?" Ms. Bickert replied, "I don't recall. Occasionally if I am writing up a draft of the grand jury statement, I will ask whichever agent took notes if they can fax it over, and then I will work off of that, but I don't specifically recall." Id. (emphasis added). Asked by the Court, the trial prosecutors responded that they had searched the files of the US Attorney's office and had found no notes of the meetings -- fax copies or otherwise. Tr. 894-95.
The defense renewed its objection to Ms. Bickert's testimony. During the argument, Mr. Neely stated that "I can't testify, but I was -- and as an officer of this Court, I can state that when Mr. Brownridge began to tell the agent what the gangs were doing to him, they cut him off." Tr. 902. Both sides' counsel agreed that Mr. Brownridge had testified that this incident had occurred at a meeting at which a prosecutor was present. Tr. 903. Mr. Neely again confirmed that he was in the room, as was Ms. Bickert, when this occurred. Id.
The Court noted to counsel that the discussion suggested that Mr. Neely was potentially a crucial defense witness, because he could confirm Mr. Brownridge's version of the events and contradict Ms. Bickert's expected version. Tr. 904. Mr. Neely said, "Yes, your Honor, but I am moving to strike this witness." Id. In discussing the alternatives, the Court indicated the possibility of a mistrial if Ms. Bickert testified, because Mr. Neely might have to testify as a surrebuttal witness. Tr. 905.
After further argument, the Court overruled the defense objection to Ms. Bickert's testimony. The Court said, however, that it would permit the defense to elicit that the government was unable to identify what agent was in the room, that no notes of the meetings could be located, and that the Court had entered an order on December 28, 2006 directing the preservation of agents' and attorneys' notes. The Court also stated that it would allow argument about this topic during the closing arguments. Tr. 906-08. The Court also intended (though it did not say so at the time) to seriously consider giving the jury a spoliation instruction.
After the jury returned, Ms. Bickert testified as a rebuttal witness for the government. The prosecution elicited that she had been present for a proffer meeting with Mr. Brownridge and his lawyer as well as a meeting a few days later at which a statement was prepared for Mr. Brownridge to read to the grand jury. She testified that two law enforcement officers were present at the proffer meeting. Ms. Bickert described in general terms what Mr. Brownridge had said regarding his narcotics activities and those of various members of the street gang. In response to specific questions on direct examination, Ms. Bickert testified that Mr. Brownridge had expressed no concerns or worries about any of the street gang members; he had not asked for protection; he had said nothing about being the victim of acts of violence or about observing violent acts by gang members (including the specific incidents about which Mr. Brownridge had testified); and he had described one gang member -- a person Mr. Brownridge had testified was extremely violent -- as merely a "pest."
Ms. Bickert also testified regarding the preparation of the grand jury statement. She testified that she had not left out of the statement any topic that Mr. Brownridge had discussed. Ms. Bickert also gave some testimony that appeared to the Court to be at odds with her ...