The opinion of the court was delivered by: J. Skelly Wright, Circuit Judge
Before WRIGHT and McGOWAN, Circuit Judges, and JOHNSON,*fn1 Chief Judge, United States District Court for the Middle District of Alabama.
These cases point up an anomaly of our criminal process: controlled by rules of law protecting adversary rights and procedures at some stages, the process at other stages is thoroughly unstructured. Beside the carefully safeguarded fairness of the courtroom is a dark no-man's-land of unreviewed bureaucratic and discretionary decision making. Too often, what the process purports to secure in its formal stages can be subverted or diluted in its more informal stages. That, we are told, is what happened here.
The right at stake in the cases before us is defendant's discovery of evidence gathered by the Government, evidence whose disclosure to defense counsel would make the trial more a 'quest for truth' than a 'sporting event.'*fn2 This safeguard of a fair trial is surely an important one; but here it was undercut at the pretrial period by bureaucratic procedures and/or discretionary decisions of Government investigative agents who made no effort to preserve discoverable material. When defense motions for discovery were made, it turned out that the material was unaccountably 'lost.' The issue presented is whether intentional non-preservation by investigators— as opposed to bad faith destruction or prosecutorial withholding— of discoverable evidence amounts to its illegal suppression.*fn3 Although we remand these cases for a further hearing on the investigators' conduct, we require rigorous procedures to govern preservation of such evidence by federal investigative agencies, including the District of Columbia police, in the future.
Appellants Bryant and Turner, with Herbert Johnson whose case is not now on appeal, were convicted of offenses involving the sale of a substantial quantity of heroin. The sale was negotiated and concluded with John Pope, an undercover agent of the Bureau of Narcotics and Dangerous Drugs normally stationed in Detroit but flown to Washington, D.C. for the occasion. At appellants' trial Agent Pope was the principal witness for the prosecution. His testimony was largely an account of conversations with the three defendants leading up to and following the actual transfer of the drug.
Agent Pope's story, in its bare essentials, was as follows: After arriving in Washington, he took a room at a Holiday Inn and contacted Johnson who expressed an interest in doing 'some business.' Later that evening Johnson, accompanied by others not indicted as codefendants, visited the motel room. A general discussion of prices and quantities of heroin ensued; and Johnson said he would return the next day with 'his man,' 'his source os supply,' in order to make more specific arrangements. Around noon on the following day, Johnson and appellant Bryant came to see Agent Pope at the motel. Bryant and Agent Pope immediately commenced negotiations. After several minutes' discussion, Bryant 'okayed' the sale of a particular quantity of heroin at a particular price and left. Johnson lingered to tell Agent Pope that he would return later to make the transfer. Again true to his word, Johnson came to the motel room that evening, accompanied this time by appellant Turner whom he introduced as his 'runner.' The trio had a general conversation about the narcotics business in which Turner took active part. They then left for Johnson's house to pick up the heroin. Johnson and Turner measured out a quantity of the drug and then the three men again returned to the motel room. There, Agent Pope paid for the heroin and, after another general conversation among the three about future narcotics business they might transact, Johnson and Turner left for the last time.
Without Agent Pope's account of the motel room conversations, the Government would have had almost no evidence against appellant Bryant and a much weaker case against appellant Turner. Its theory was that the appellants aided and abetted in the sale of heroin by Johnson, and the testimony as to the motel conversations was necessary to clarify their roles as active participants. See Bailey v. United States, 135 U.S.App.D.C. 95, 416 F.2d 1110 (1969). Besides Agent Pope, the Government presented only two other witnesses: A surveillance agent who had observed the comings and goings outside the motel but knew nothing of where appellants went or what they did once inside, and a chemist who identified the heroin that had been transferred. Appellants did not testify. Thus it was that the credibility of Agent Pope's story became the key to conviction.
Such need not have been the case. For this was no shoestring investigative operation on the part of the Bureau; it was a major effort involving many agents and careful precautions. Agent Pope was not alone in the Holiday Inn. In the room next to his were other agents who had bored a hole in the connecting wall and were not only listening in on the crucial conversations, but were also recording them on a tape recorder. There can be little if any doubt that that tape would have been more reliable than Agent Pope's recollection as evidence of what appellants' roles in the heroin sale actually were. Agent Pope testified that he took no notes on the conversations until after they were over, and even then he made only very sketchy notes on his hand and on scraps of paper. He did not prepare a full report until he had returned to Detroit as much as one to four days later. The trial occurred a full year after the conversations and sale took place. Even assuming absolute good faith on Agent Pope's part, there was amply sufficient occasion to forget or inaccurately reconstruct what went on. Although the agent's report was turned over to appellants at trial, it could hardly substitute for the tape and eliminate the possibility of serious prejudice. It is possible, after all, that the tapes might have revealed that there was no discussion whatever of a narcotics deal while appellants were in the motel room or that they in no way participated in the conversations. More probably, the tape might have clarified the context in which certain remarks were made or corrected other matters of emphasis and degree in Agent Pope's testimony.
When defense counsel heard rumors of the tape's existence, they recognized its obvious importance and made repeated efforts to discover it. At each juncture their efforts were frustrated. At the preliminary hearing, almost seven months before trial, the Assistant United States Attorney objected to a question concerning the possible existence of a tape recording, and his objection was sustained. And at a discovery conference three months later he stated that he knew of no tape, but would inform defense counsel if one came to his attention. Indeed, although the prosecution had long been on notice of defendants' interest in the tape, it was not until a few days before the trial that the Assistant United States Attorney told defense counsel that a tape had been made but that it had apparently been 'lost' somewhere at the Bureau of Narcotics and Dangerous Drugs and had never been turned over to the prosecution. Finally, just before the beginning of the trial, a hearing was held on a defense motion to discover the tape or, alternatively, to dismiss the indictment. At that hearing, Agent Warden— the Bureau agent in charge of the taping— testified as to the circumstances of the tape's recording and loss. The motion was denied by the trial judge, but Agent Warden's testimony set the stage for this appeal.
Warden's recollection of most relevant matters was extraordinarily vague. He constantly qualified his statements with 'possibly' or 'probably' or simply settled for 'I don't know.' He was clear on only a few facts. After the agents left the Holiday Inn, Agent Warden brought the tape to his office at the Bureau and some time soon thereafter played it back. Apparently the quality of the recording was adequate, since Warden testified that he could hear the conversation and could identify the speakers. Yet he was unsure whether he asked any of his colleagues— even Agent Pope— to listen to the tape. And it was not long before the tape seems to have disappeared; Agent Warden did not recall when he last saw it. He did not inform the Assistant United States Attorney about the tape until approximately ten months later, two months before the trial. When he was asked to look for it, he checked his desk and his personal safe, but to no avail.
The agent was unequivocal on one other matter— indeed, the most crucial matter to this appeal. He made no pretense of having had any intention to preserve the tape. Rather, he stated flatly that he made no effort to preserve it. He testified that when Bureau agents make a tape which they intend to save for use in prosecution they take the following steps to see that it is preserved: 'It would have been marked in the front of the tape, the nature of the conversations. There would have been my name placed on there, the date, time, and if it was to be used as evidence of some kind, it would have been kept in a locked safe.' But in this case:
Q You didn't mark, at all, the place, the time, the occurrence?
Q Well, above and beyond the use in court, isn't this just standard operating procedure, to at least mark a tape of conversation, with the date, the time, the people involved?
A If you want to keep the tape, you do. There wasn't a need to keep the tape, and it wasn't ...