United States v. Martin Jonassen

In the

United States Court of Appeals

For the Seventh Circuit

No. 13-1410

UNITED STATES OF AMERICA ,

Plaintiff-Appellee,

v.

MARTIN J. JONASSEN ,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 2:11cr163-001 — James T. M oody, Judge.

ARGUED FEBRUARY 20, 2014 — DECIDED JULY 16, 2014

Before EASTERBROOK , MANION , and SYKES, Circuit Judges.

SYKES, Circuit Judge. Martin Jonassen kidnapped his

21-year-old daughter E.J.1 from her home in Missouri and took

her to a motel in Indiana, where he held her against her will

1

A pseudonym.

2 No. 13-1410

and sexually assaulted her. On the third day of her captivity,

E.J. managed to escape and was seen fleeing naked from the

motel, rope still tied around her leg, desperately screaming for

help. Jonassen chased her through the street and into a nearby

liquor store, and after a violent struggle, recaptured her. Police

responding to the scene arrested him in the liquor store

parking lot. E.J. described the ordeal to police, and Jonassen

faced serious federal felony charges.

Almost immediately after he was arrested, Jonassen began

a concerted effort to get E.J. to recant. She did not do so, but

the intimidation was successful in the sense that it made her

unavailable as a witness. Although she had cooperated with

the government when Jonassen was indicted and throughout

the pretrial period, she suddenly clammed up when called to

testify at trial, saying “I don’t remember” (or something

equivalent) in response to all of the prosecutor’s questions. The

government moved to admit her statements to police under

Rule 804(b)(6) of the Federal Rules of Evidence, which allows

admission of hearsay against a party who wrongfully procures

a witness’s unavailability. The district court granted the

motion. The jury convicted Jonassen of kidnapping, see

18 U.S.C. § 1201(a)(1), and obstruction of justice, see id.

§ 1512(b)(1), and the court imposed a lengthy prison sentence.

Jonassen raises three issues on appeal. First, he argues that

the district court should have conducted a competency hearing

under 18 U.S.C. § 4241. Second, he challenges the court’s

decision to admit E.J.’s prior statements under Rule 804(b)(6).

Finally, he argues that the court erred in denying his posttrial

motion regarding Jencks Act material. See 18 U.S.C. § 3500.

No. 13-1410 3

We reject these arguments and affirm. The district court

properly declined to conduct a competency hearing. Although

Jonassen asserted bizarre legal theories based on his claim of

“sovereign citizenship,” that alone does not provide a reason

to doubt his competence to stand trial, and the record does not

otherwise suggest that he lacked the ability to understand the

proceedings. The court’s evidentiary ruling also was sound.

The government laid an ample foundation for admission of the

hearsay statements under Rule 804(b)(6); the evidence estab-

lished that Jonassen used bribery, guilt, and various forms of

psychological intimidation to procure E.J.’s unavailability.

Finally, because Jonassen did not request Jencks Act material

before the close of trial, his claim for relief under the Act

necessarily fails.

I. Background

E.J. was born in November 1989 to Martin and Alice

Jonassen in the back of their family van. She led what appears

to have been an isolated life; she was homeschooled and had

only once seen a doctor before her kidnapping. The record

suggests that Martin subjected the family to harsh discipline

and physical, emotional, and sexual abuse. Her parents

separated when E.J. was young, and she thereafter lived with

her mother and three of her brothers on a farm near Jameson,

Missouri. Martin Jonassen also lived in the area.

On Saturday, September 10, 2011, Jonassen picked up E.J.

from the farm ostensibly to take her shopping. When E.J. did

not return as planned for her brother’s birthday celebration,

her mother began to worry and tried unsuccessfully to contact

4 No. 13-1410

her. Jonassen had driven her to Portage, Indiana, where he

checked into a motel on Sunday evening. At around ten-thirty

on Monday morning, two motel employees saw E.J. running

naked down the motel service road with a rope tied to her leg.

Jonassen emerged from the motel room and chased her on foot,

pulling up his pants as he ran (he was wearing nothing else)

before getting into his car to follow her. A witness would later

testify that E.J. looked like she was “running for her life,”

frantically darting through traffic on a very busy road.

E.J. ran into a nearby liquor store screaming “help me, help

me, please help me” to the store clerk. Jonassen followed her

into the store and told the clerk that his daughter was on

drugs. He struggled violently to recapture her, and they fell to

the ground, knocking over merchandise in the process.

Jonassen succeeded in overpowering his daughter, and he

dragged her back to his car.

Portage police officers responding to a 911 call about the

incident arrived at the scene and arrested Jonassen in the liquor

store parking lot before he was able to leave with E.J. He told

police that he was taking his daughter to Michigan to prevent

her from dating a 60-year-old man, whom he later referred to

as “some Hugh Hefner.” After securing Jonassen, officers then

sought to assist E.J., who was huddled in the back of the car

crying. E.J. told Officer Flora Ryan that Jonassen had taken her

to Indiana against her will because he thought she was going

to have sex with an older man. When asked if she was raped,

she first shook her head no. But she told the officer that she

had been tied up in the motel room and nodded when asked

if her father had sex with her, and the officer observed the rope

No. 13-1410 5

still around her ankle. After the on-scene interview with the

police, E.J. was taken to the hospital where she was examined

by nurse Janice Ault, who observed abrasions, cuts, a rash, and

bruises all over her body. E.J. also told Ault that Jonassen had

taken her from her home in Missouri against her will.

The police searched the motel room, which was in total

disarray. There was rope around a chair, and more rope was

found in Jonassen’s car. A table had been moved to a location

consistent with it being used to block the door. Near the table

was a toilet-tank cover, also apparently used as a door block.

The bedding was submitted to the Indiana State Crime Lab for

testing. Jonassen’s semen was found on the sheets, and one

stain contained both Jonassen’s and E.J.’s DNA.

The day after his arrest, Jonassen began what would be an

extended campaign to get E.J. to retract her statements to the

police. Ignoring a no-contact order prohibiting any communi-

cation with E.J.—including by letter, phone, or intermediary—

Jonassen contacted her both directly and through several

family members. Over a seven-month period, Jonassen made

more than 75 calls and sent 20 letters attempting to dissuade

E.J. from testifying. As the district judge characterized the calls

and letters, Jonassen variously used guilt, bribery, veiled

threats, and other forms of psychological intimidation in a

persistent effort to get E.J. to recant. For example, when

speaking directly with E.J. on the phone, Jonassen told her that

he loved her and did not want to spend years in prison.

Through multiple channels he offered her money (up to

$14,000), a moped, and part of his property in Michigan. His

letters reiterated these offers, promised to stay out of her life,

6 No. 13-1410

and claimed he was being mistreated in jail. He characterized

the whole episode as nothing more than a family spat and

suggested that she would be blessed for lying to the police like

the Jewish midwives who lied to Pharaoh to save newborn

children and Rahab who lied to soldiers in Jericho to protect

Jewish spies. He also offered to pay his sons Michael and Elijah

if they could persuade E.J. to sign a statement—dictated word

for word by Jonassen—indicating that she freely accompanied

him to Indiana.

The United States Attorney in Northern Indiana indicted

Jonassen on one count of kidnapping, see 18 U.S.C. § 1201(a)(1),

and one count of obstruction of justice, see id. § 1512(b)(1).

Jonassen waived his right to counsel and represented himself,

although the court appointed attorney John Martin to serve as

standby counsel. Jonassen attempted to mount a “sovereign

citizen” defense, filing many motions asserting variations on

this frivolous legal theory.2 Attorney Martin moved for a

competency hearing, advising the court that “[a]lthough

[Jonassen] at times appears to have rational thoughts concern-

ing this matter, more often than not his thoughts are irrational

and his thought process appears to be scrambled.” Martin also

stated that Jonassen “continues to advance irrelevant and

inconsequential theories of defense instead of understanding

2

Defendants claiming to be “sovereign citizens” assert that the federal

government is illegitimate and insist that they are not subject to its

jurisdiction. The defense has “no conceivable validity in American law.”

United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990).

No. 13-1410 7

and comprehending the true nature of the allegations and

appears to lack interest in rational defenses.”

A magistrate judge held a hearing on the motion and

questioned Jonassen about his understanding of the proceed-

ings. Jonassen indicated that he understood the charges against

him and acknowledged that he was facing “quite a number of

years” in prison. He explained that he was refusing the

assistance of counsel to avoid losing the ability to assert that he

was “a natural person, common law citizen” over whom the

court lacked jurisdiction. He also told the judge that he had

never been treated for any mental-health issues. The magistrate

judge found no basis for a competency hearing and denied the

motion. Martin filed an objection with the district court.

The district court addressed the attorney’s concerns about

Jonassen’s competence during a pretrial conference. After

conducting an extended colloquy with Jonassen and question-

ing Martin about his concerns, the court concluded that there

was no reasonable cause to believe that Jonassen was suffering

from a mental illness that would prevent him from under-

standing the proceedings. The court rejected the request for a

competency hearing, and the case moved forward to trial.

Up to this point in the proceedings, E.J. had been cooperat-

ing with the government and had talked to investigators and

prosecutors on several occasions. On the evening before trial,

E.J. met with Portage Police Detective Janis Regnier, FBI Agent

Matthew Chicantek, and two Assistant United States Attor-

neys. They went over her story in detail in preparation for her

testimony. E.J. confirmed that Jonassen had tied her up and

taken her from Missouri against her will. She also described for

8 No. 13-1410

the first time the events of a multiweek trip she had taken with

Jonassen to Michigan the summer before the kidnapping.

During that trip, Jonassen made sexual advances toward her

that included lying on top of her and masturbating in front of

her.

When trial began the next day, however, E.J. refused to

answer any questions put to her by the prosecutor. Instead, she

answered every question with “I don’t remember” or “not that

I know of” or “I don’t know what you are talking about” or a

similar phrase. She responded in this way even when asked

simple questions about her age, her date of birth, her nick-

name, and her parents’ names. When the prosecutor asked if

she was refusing to answer because she feared her father, she

answered, “I’m not afraid of anything or anybody.”

In light of this unusual development, at the end of the first

day of trial the judge excused the jury and heard the govern-

ment’s motion to admit E.J.’s statements to police under

Rule 804(b)(6) of the Federal Rules of Evidence, which permits

the admission of hearsay against a party who wrongfully

procures the unavailability of the declarant as a witness. The

hearing extended into the evening and continued the next

morning. The government presented evidence of Jonassen’s

elaborate effort to get E.J. to recant, including the phone calls

and letters playing on her emotions with guilt, bribery, and

various forms of intimidation. Alice Jonassen testified about

why E.J. would have reason to fear her father. Special Agent

Eric Field testified that E.J. told him that she thought her father

was facing too much time in prison and that his time served in

No. 13-1410 9

pretrial detention plus a term of probation should be sufficient

punishment.

Ruling on the government’s motion, the judge noted that

E.J.’s testimony was unlike anything he had seen in over

40 years on the bench. He concluded that E.J.’s performance on

the witness stand—professing a “total lack of recall of

anything”—made her unavailable as a witness within the

meaning of Rule 804(a). See FED . R. EVID . 804(a)(3) (stating that

a declarant is considered unavailable if she “testifies to not

remembering the subject matter”). He further concluded that

Jonassen had procured E.J.’s unavailability through wrongful

acts and with specific intent to achieve that result, satisfying

the criteria for admission of her hearsay statements under

Rule 804(b)(6).

When the jury returned to the courtroom, the government

introduced E.J.’s prior statements through Agent Chicantek

and Detective Regnier, and also introduced a signed, handwrit-

ten statement from E.J. describing her abduction. The rest of

the government’s case consisted of testimony from eyewit-

nesses, investigators, Alice Jonassen, and Janice Ault, along

with recordings of Jonassen’s phone calls from jail, surveillance

video from the liquor store, and physical evidence from the

motel.

The jury convicted Jonassen on both counts and also found

by special verdict that Jonassen’s obstructive conduct was

“intended to influence, delay, or prevent” E.J.’s testimony.

Following trial, the probation office submitted a presen-

tence report to the court. The report referred to E.J.’s meeting

with prosecutors on the night before trial. More specifically,

10 No. 13-1410

the probation office reported that E.J. “met with law enforce-

ment and government counsel the night before she was

scheduled to testify” and “gave her most detailed summary to

date” of the kidnapping. The report went on to summarize the

information she provided during that interview.

After reviewing the presentence report, Jonassen filed a

“motion” objecting that he had not received any report or

notes about this meeting. The motion is captioned “Gov.

Admits To Withholding Evidence” and is vague about the

grounds for relief, but it does clearly request a new trial or

judgment of acquittal. The court ordered a response from the

government.

The government interpreted the “motion” as a Jencks Act

request for a copy of any written statement provided or

adopted by E.J. during the meeting. See 18 U.S.C. § 3500. The

government advised the court that E.J. “did not provide, and

no one else created, a written document constituting a state-

ment by her.” The government also noted that the Assistant

United States Attorney in charge of the case was “the only

person present who took notes during the meeting,” and her

notes were recorded on a “draft direct examination outline”

prepared for use at trial. These notes, the government ex-

plained, were “privileged attorney work product rather than

a discoverable witness statement.” Finally, the government

explained that the information E.J. provided during the

meeting was neither exculpatory nor inconsistent with her

prior statements and thus was not subject to disclosure under

Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States,

405 U.S. 150 (1972).

No. 13-1410 11

After receiving the government’s response, the judge

concluded that the notes were not subject to disclosure and

denied Jonassen’s motion for a new trial or judgment of

acquittal. Sentencing proceeded, and the judge imposed a

sentence of 480 months on the kidnapping conviction and a

concurrent term of 240 months on the conviction for obstruc-

tion of justice. This appeal followed.3

II. Discussion

A. Competency Hearing

When presented with a motion requesting a competency

hearing, a district court

shall grant the motion … if there is reasonable

cause to believe that the defendant may pres-

ently be suffering from a mental disease or defect

rendering him mentally incompetent to the

extent that he is unable to understand the nature

and consequences of the proceedings against him

or to assist properly in his defense.

18 U.S.C. § 4241(a); see also United States v. Woodard, 744 F.3d

488, 493 (7th Cir. 2014) (“A district court is not required to

order an examination or a competency hearing unless there is

a bona fide doubt that arises as to a defendant’s competency

before trial.”).

3

Jonassen accepted the assistance of counsel on appeal. Thomas L. Shriner,

M ichael A. Bowen, and Kate E. Gehl, of Foley & Lardner LLP, accepted the

appointment. They have ably discharged their duties.

12 No. 13-1410

The district judge denied Attorney Martin’s motion for a

competency hearing and did not order one sua sponte at any

point in the proceedings. Jonassen argues that the district

court’s treatment of Jonassen’s competency was both procedur-

ally and substantively flawed. Because the district court is in

the best position to assess the mental status of a defendant, we

review for abuse of discretion. United States v. Alden, 527 F.3d

653, 659 (7th Cir. 2008).

Jonassen’s procedural argument is that Martin’s motion for

a competency hearing was denied without sufficient findings

stated on the record. We disagree. Although the magistrate

judge’s ruling was cursory, the district judge adequately

explained his conclusion that a competency hearing was not

necessary. After a colloquy with Jonassen, the judge turned to

Martin, Jonassen’s standby counsel, and questioned him about

the basis for the motion and Jonassen’s relevant personal

history. During this discussion, it became clear that Jonassen

had no known history of mental illness, and Martin was

primarily concerned about Jonassen’s insistence on pursuing

idiosyncratic and frivolous legal theories. The judge remarked

that Jonassen’s behavior did not suggest that he was suffering

from a mental-health problem that would require a full

competency evaluation; instead, his conduct was more likely

rooted in obstructionism. Although the judge did not make

formal “findings” as such, he referred back to the colloquy

with Jonassen and the exploration of standby counsel’s

concerns, and stated that the facts did not show that Jonassen

was incapable of understanding the proceedings against him.

A more formal ruling may have been preferable, but the

judge’s ruling is not procedurally insufficient.

No. 13-1410 13

On the merits the district court did not abuse its discretion

in declining to order a competency hearing. Appellate counsel

argues that Martin’s observations, Jonassen’s actions at trial,

and the district judge’s own statements during trial created

reasonable cause to believe Jonassen was incompetent to stand

trial, necessitating a hearing. This argument, like Martin’s

argument below, relies heavily on Jonassen’s persistent

assertion of a sovereign-citizen defense. But we have held that

adherence to bizarre legal theories, whether they are “sincerely

held” or “advanced only to annoy the other side,” does not

“imply mental instability or concrete intellect … so deficient

that trial is impossible.” United States v. James, 328 F.3d 953, 955

(7th Cir. 2003); see also Alden, 527 F.3d at 659–60 (holding that

the defendant’s “obsession with irrelevant issues and his

paranoia and distrust of the criminal justice system” did not

require a district court to sua sponte order a competency

hearing). Criminal defendants often insist on asserting defenses

with little basis in the law, particularly where, as here, there is

substantial evidence of their guilt.

And standby counsel’s assertions turned out to be much

more equivocal than they originally seemed. For example,

Martin acknowledged when questioned by the judge that

Jonassen’s behavior could show “that he is just being obstruc-

tionist to some degree and that he is just intentionally not

directly answering questions and refusing to cooperate … . I

think it’s … possible that he completely understands every-

thing and his actions are simply to be obstructionist and

therefore he does understand.”

14 No. 13-1410

As for Jonassen’s performance at trial, it’s true that he often

struggled to effectively question witnesses and parts of his

closing argument were stricken. But these problems often arise

when someone without legal training represents himself; the

rules of evidence and criminal procedure are not always

straightforward. See Gideon v. Wainwright, 372 U.S. 335, 344–45

(1963). Considered as a whole, and in light of his pro se status,

Jonassen’s conduct at trial demonstrates that he grasped the

key elements of the charges against him. For example, he

frequently asked witnesses whether they had seen his daughter

cross state lines, a necessary element of the kidnapping charge.

See 18 U.S.C. § 1201(a)(1). He also lodged relevant objections to

hearsay and testimony implicating marital privilege. More-

over, his intense effort before trial to get E.J. to sign a statement

saying that she had willingly accompanied him to Indiana

demonstrates that he understood the central elements of the

kidnapping charge.

Finally, appellate counsel points to two statements by the

trial judge as evidence suggesting the need for a competency

hearing. First, after Jonassen made a flippant remark, the judge

chastised him by saying, “I still don’t know that you know

how serious this case is.” Considered against the backdrop of

Jonassen’s other obstructionist behavior, this statement is more

likely the product of the judge’s frustration that Jonassen was

choosing not to take the proceedings seriously, and not evi-

dence that Jonassen lacked the mental capacity to understand

them. Second, the judge suggested mid-trial that Jonassen

could benefit from letting Martin step in to conduct the

defense: “You sure you don’t want [standby counsel] to take

over for you? He’s competent. He’s skilled. He knows what

No. 13-1410 15

he’s doing. You have none of those attributes.” This statement

shows only that the judge thought Jonassen would benefit

from the help of trained counsel—an unremarkable proposi-

tion—and not that he thought Jonassen was incapable of

understanding the proceedings.

These snippets from the record do not establish that the

judge abused his discretion in declining to conduct a compe-

tency hearing. Jonassen had no history of mental illness, and

substantial evidence supports the judge’s conclusion that he

was competent to stand trial. As Jonassen explicitly told the

court: “I’m well aware of the charges and the nature of the

charges and the consequences.” The record does not establish

reasonable cause to believe that Jonassen was suffering from a

mental disease or defect that rendered him incompetent to

stand trial.4

4

Jonassen’s opening brief obliquely suggests that even if Jonassen was

competent to stand trial, he was not competent to represent himself at trial

according to Indiana v. Edwards, 554 U.S. 164 (2008). Jonassen’s reply brief

does not return to this subject, and Jonassen’s counsel retreated from the

point at oral argument, acknowledging that Edwards does not require a judge

to override a defendant’s decision to represent himself once the defendant

is found competent to stand trial under the Dusky standard. See Dusky v.

United States, 362 U.S. 402 (1960). Rather, the case allows the judge “to insist

upon representation by counsel for those competent enough to stand trial

under Dusky but who still suffer from severe mental illness to the point

where they are not competent to conduct trial proceedings by themselves.”

Edwards, 554 U.S. at 178; see United States v. Berry, 565 F.3d 385, 391 (7th Cir.

2009) (“The Constitution may have allowed the trial judge to block [the

defendant’s] request to go it alone, but it certainly didn’t require it.”);

United States v. Bernard, 708 F.3d 583, 590 (4th Cir. 2013), cert. denied,

(continued...)

16 No. 13-1410

B. Admission of Hearsay Under Rule 804(b)(6)

Rule 804(b)(6) permits the admission of a hearsay statement

when it is “offered against a party that wrongfully caused …

the declarant’s unavailability as a witness, and did so intending

that result.” FED . R. EVID . 804(b)(6). E.J. was unavailable within

the meaning of the rule because she “testifie[d] to not remem-

bering the subject matter.” FED . R. EVID . 804(a)(3). To admit a

hearsay statement under Rule 804(b)(6), the government must

demonstrate: “(1) that the defendant engaged or acquiesced in

wrongdoing, (2) that the wrongdoing was intended to procure

the declarant’s unavailability, and (3) that the wrongdoing did

procure the unavailability.” United States v. Scott, 284 F.3d 758,

762 (7th Cir. 2002). Jonassen challenges the district court’s

conclusion that his wrongdoing procured E.J.’s unavailability.

We review for clear error. Id.

And we find no error. The record easily supports the

court’s conclusion that Jonassen successfully procured E.J.’s

unavailability by incessant pretrial manipulation. As we have

recounted, Jonassen worked tirelessly for seven months to

persuade E.J. to recant. His tactics ranged from pleas for

sympathy to bribes. He bombarded E.J. with phone calls,

4

(...continued)

134 S. Ct. 617 (2013) (“Edwards itself reaffirmed that a court may constitu-

tionally permit a defendant to represent himself so long as he is competent

to stand trial. … At bottom, Edwards does not stand for the proposition that

a state must deny the right of self-representation to a defendant of

questionable mental competence or that district courts must conduct an

additional ‘Edwards’ inquiry into the competency of every defendant who

requests to proceed pro se.”).

No. 13-1410 17

letters, and messages delivered through several family

members. All this effort was in clear violation of a court order

and directed at a young woman who was susceptible to his

manipulation: According to Alice Jonassen’s testimony at the

hearing, E.J. had long been subjected to abuse by her father.

The evidence overwhelmingly supports the judge’s conclusion.

Jonassen argues that the evidence is circumstantial and thus

inadequate to support the district court’s conclusion. True, E.J.

did not testify that her father’s actions led to her feigned

memory loss, and when asked whether she feared her father,

she responded that she did not fear anyone or anything. This

response does not undermine the judge’s ruling. The eviden-

tiary foundation for admitting hearsay under Rule 804(b)(6)

will almost always be circumstantial, and it would be odd to

expect the witness herself to corroborate it:

It seems almost certain that, in a case involving

coercion or threats, a witness who refuses to

testify at trial will not testify to the actions pro-

curing his or her unavailability. It would not

serve the goal of Rule 804(b)(6) to hold that

circumstantial evidence cannot support a finding

of coercion.

Scott, 284 F.3d at 764.

Moreover, fear was not the only tactic Jonassen used—he

also played on E.J.’s sense of guilt. He complained in graphic

detail about being sexually assaulted and malnourished in jail.

And E.J.’s statement to Agent Field that she thought her father

had spent enough time behind bars suggests that tactic was

successful. There was more than enough evidence to support

18 No. 13-1410

the judge’s conclusion that Jonassen wrongfully procured E.J.’s

unavailability.

C. Jencks Material

The Jencks Act requires, on the defendant’s motion, that

any statements of a government witness be produced after that

witness testifies on direct examination. 18 U.S.C. § 3500(b).

Jonassen asserts that he may have been denied access to

materials he was entitled to under the Act.

Before sentencing, Jonassen received a draft copy of his

presentence report, which referred to notes taken by one of the

prosecutors during the interview with E.J. the night before

trial. Jonassen filed a cryptic motion claiming that he was

denied access to the notes and should be granted a new trial,

mistrial, acquittal, dismissal, or “dissolution of this matter.”

The government responded that the notes were attorney work

product and did not constitute a statement of any witness as

defined by the Jencks Act, and were in no way exculpatory

within the meaning of Brady and Giglio. The government

offered to produce the notes for in camera inspection. The

district court declined the offer and denied Jonassen’s motion.

Jonassen’s argument on appeal doesn’t get out of the gate.

It’s true that a presumption arises in favor of an in camera

inspection if the defendant makes “a reasonable argument that

if the document says what he believes it says, based on the

testimony of the witness on direct examination, then it can

possibly be used to impeach that witness.” United States v.

Allen, 798 F.2d 985, 994–95 (7th Cir. 1986). But a request for

No. 13-1410 19

Jencks Act material must be made before or during trial; the

Act provides no posttrial procedure or remedy.5 In other

words, the Jencks Act does not place an independent obligation

on the government to disclose witness statements. See 18 U.S.C.

§ 3500(b) (The court shall produce witness statements “on

motion of the defendant.”). A defendant must make a timely

request to trigger an in camera inspection and, if warranted,

production of the documents. See United States v. Fragoso,

978 F.2d 896, 899 (5th Cir. 1992) (“If the defense makes a timely

request and there is some indication in the record that the

materials meet the Jencks Act’s definition of a statement, the

district court has a duty to inspect the documents in camera.”).

A request made after the jury has rendered its verdict is not

timely. See United States v. Clay, 495 F.2d 700, 709–10 (7th Cir.

1974); United States v. Petito, 671 F.2d 68, 73–74 (2d Cir. 1982).

Absent a preexisting agreement with the government concern-

ing disclosure of witness statements, see, e.g., United States v.

5

Jonassen’s appellate counsel stated at oral argument that it is “possible”

Jonassen made a broad request for Jencks material during trial. Counsel was

referring to one of 40 arguments lodged by Jonassen in an oral motion for

judgment of acquittal made at the close of the government’s case:

Per … Federal Rule of Criminal Procedure 3500(a)[,] no

statement or report made by prospective witnesses shall be

the subject of subpoena or discovery or inspection until

said witness has testified on direct examinations[] — that’s

a direct quote to all my stolen papers yesterday that we

played with for three hours.

Jonassen does (inaccurately) cite to the Jencks Act and recite some of its

text. However, he is clearly referring to papers of his own that he wanted

back, not to statements by any particular government witness.

20 No. 13-1410

McKenzie, 768 F.2d 602, 609 (5th Cir. 1985), a Jencks motion

must be made after the relevant witness testifies on direct

examination and at a minimum before the close of evidence, see

United States v. Knapp, 25 F.3d 451, 461 (7th Cir. 1994); United

States v. Carter, 613 F.2d 256, 261 (10th Cir. 1979) (holding that

defendant failed to make a timely assertion of his rights under

the Jencks Act when he requested the materials before trial,

which was too early, and again after trial, which was too late,

but not during trial after the relevant witness testified).

The Jencks Act provides for disclosure of witness state-

ments that can be used to cross-examine government witnesses

at trial. There can be no error in refusing to order their produc-

tion, much less refusing to inspect them in camera, when the

initial request is made after trial has concluded. See Clay,

495 F.2d at 709–10 (“Because the defendants could only

properly use [an alleged Jencks] statement to impeach the

testimony of [the witness] during cross-examination, the

motion for production made at the conclusion of the trial was

not timely. Therefore, we find no error in the court’s denial of

the motion.”). Nor does the Jencks Act provide a remedy of a

new trial on an untimely motion. In short, Jonassen missed his

chance to request Jencks statements by failing to do so during

trial, and the district court did not err in refusing to grant his

untimely motion.

Even if the notes qualified as Jencks Act material and had

been requested in a timely fashion, failure to disclose them at

the conclusion of E.J.’s direct examination cannot have been

prejudicial. Jonassen has not explained how he could possibly

have used any statement of hers to his advantage. It is

No. 13-1410 21

uncontested that E.J.’s story the night before trial was entirely

inculpatory and consistent with her prior statements. The

amnesiac nature of E.J.’s testimony made impeachment by

Jonassen counterproductive. Simply put, E.J.’s effective refusal

to testify was the best outcome Jonassen could have hoped for.

In sum, to raise the presumption in favor of an in camera

inspection, Jonassen had to make both a timely request for

Jencks Act material and a reasonable argument that if the notes

said what he believed they said, they could possibly have been

used to impeach E.J.’s testimony. He did neither.

AFFIRMED .