Petition for Writ of Certiorari — Martinez v. United States

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1) Supreme Court U.S.

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No.__Q924473 4/2 3 2003

In The

Supreme Court of the Anited States

VINCENT MARTINEZ,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

BRIAN K. GALLIK

Counsel of Record

GOETZ, GALLIK, BALDWIN &

DOLAN, P.C.

Attorneys at Law

35 North Grand Avenue

Bozeman, MT 59715

(406) 587-0618

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

—

QUESTIONS PRESENTED

Whether the District Court's Denial of Petitioner’s

Motion to Sever Denied Petitioner of His Right to Due

Process of Law and His Right to Confront Witnesses

Against Him?

Whether the District Court's Order Denying Peti-

tioner’s Motion to Dismiss for the Loss/Destruction of

Critical Evidence Violated Petitioner’s Right to Due

Process of Law and Brady v. Maryland?

<< Ue

LIST OF PARTIES TO THE PROCEEDINGS BELOW

United States of America;

Mariano Pimentel-Tafolla, aka Mariano Pimentel;

Randy James;

Donald Frank Printz, aka Griz;

Carlos Salazar Lopez, aka Carlos Salazar;

William Lanter, aka Wild Bill; and

Joshua Springfield.

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TABLE OF CONTENTS

Page

Questions Presented.............:ssssessseeeseseteeetettnneeeeeeess i

List of Parties to the Proceedings Below .................. il

Table of Contents. ............ccscsscccrsercccescccvcsccsosscossccosers ili

Table uf Authorities ..............ccssccccsscssccecsscssccsscsceeeees iv

Citations of Reports of Opinions and Orders En-

Ec cicasercvevanssncosvenpsarsvessseventssesassnsases 1

Be PHRRRE DN CIB ORE non ccssssesoscccesvnscccccecsessccvencesencossee 1

B. US. District Court for the District of Mon-

tana, Billings Division ................:ssssesseeeeeeeeees 1

Basis Of JULISGICtION ..............c.ceccsececsecececsecsseseeseeees 1

Constitutional Provisions and Rules Involved in the

Statement of the Case ............ccscessccsccsccescsscssescsoeseees 3

A. Basis for Federal Jurisdiction in the Court of

I NE iccasacissseenseneassouesenvesnsesservecss

B. Statement of the Case................ccceccessersceeeeee

ALBUMEN ..........cseeeeeceeccecceeceeeeeecseceeeeeeeeeeeeeeeeeeeeesn ses

A. The District Court’s Exclusion of Exculpatory

Evidence and Refusal to Sever Martinez De-

nied Him the Right to Present a Defense and

To Fully Cross-Examine Witnesses Against

B. The Destruction of Brady Material Denied

Martinez the Right to Present a Defense and

His Right to Due Process of Law................+++ 11

I . ccauhnsusessdsbensensxiberssnnsasceesvevsuetonssays 16

TABLE OF AUTHORITIES

Page

CASES

Arizona v. Youngblood, 488 U.S. 51 (1988)... 13, 15

Brady v. Maryland, 373 U.S. 83 CR icinescsnicinnrecsensens 7,12

Bruton v. United States, 391 U.S. 123 (1968)..........++ 7,9

California v. Trombetta, 467 U.S. 479 (1984).......cccccccreees 13

Chambers v. Mississippi, 410 U.S. 284 (1973) ........-..sseee 10

Giglio v. United States, 405 U.S. 150 (1972) .........ccccrrreeee 12

Kastigar v. United States, 406 U.S. 441 (1972)..........0esee00 7

United States v. Blum, 62 F.3d 63 (2nd Cie, FERED cvsevecsers 10

United States v. Carrasco, 537 F.2d 372 (9th Cir.

197G).....cccceccccsccssossccsssssscessssscccnsssossssenscssnssenssnssensooeresses 14

United States v. Hill, 976 F.2d 132 (9th Cir. 1992) ........... 12

United States v. Marsh, 144 F.3d 1229 (9th Cir.

1QBB).......cccsccccsccsscrerssssssosssesersnssensesosesossenesenssoenencsonscenes 10

United States v. Mayfield, 189 F.3d 895 (9th Cir.

1999) .....csescsecceesscsescessrsenseoosesssenseseresevonsesssconssnesrosossaserees 9

United States v. Pollack, 417 F.Supp. 1332 (D.

Mas. 1976) ........0.sssescsecccceeeesccessssssessseseccseessnsaeoneneees 14, 15

Zafiro v. United States, 506 U.S. 534 (1993)...........06 7,8,9

CONSTITUTION

Amend. V........cccccecccsssccscsssscsssccccscceresssevsosscsenscssssesoonsoscees 1

TABLE OF AUTHORITIES -— Continued

STATUTES AND RULES

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, Gib Cam |: Tne enneenner enn. cree shinsddgademcnasieumiin

Rules of Criminal Procedure

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DN Wi vinssssestcisaninmicccimmmaaviiinamnnnmiia

CITATIONS OF REPORTS OF OPINIONS

AND ORDERS ENTERED IN CASE

A. Ninth Circuit.

1. The Opinion of the United States Court of Ap-

peals is an unpublished opinion with a docket

number of No. 99-30330, located at 2003 WL

42274 (9th Cir. (Mont.)).

B. U.S. District Court for the District of Montana,

Billings Division.

1. The District Court Orders were also unpub-

lished, and are set forth in. No. CR-97-00037-

JDS.

BASIS OF JURISDICTION

1. The date of the Ninth Circuit Memorandum sought to

be reviewed is January 6, 2003.

2. The statutory provision believed to confer on this

Court jurisdiction to review on a writ of certiorari the

judgment in question is 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND

RULES INVOLVED IN THE CASE

1. Amendment V to the United States Consti-

tution.

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service in

time of War or public danger; nor shall any person be

subject for the same offense to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal case to

be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for public use, without just

compensation.

2. Amendment VI to the United States Consti-

tution.

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the

withesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the Assis-

tance of Counsel for his defence.

3. Rule 14 of the Federal Rules of Criminal

Procedure.

If it appears that a defendant or the government is preju-

diced by a joinder of offenses or of defendants in an in-

dictment or information or by such joinder for trial

together, the court may order an election or separate trials

of counts, grant a severance of defendants or provide

whatever other relief justice requires. In ruling on a

motion by a defendant for severance the court may order

the attorney for the government to deliver to the court for

inspection in camera any statements or confessions made

by the defendants which the government intends to

introduce in evidence at trial.

4. Rule 16(a)(1)(A) & (C) -f the Federal Rules

of Criminal Procedure.

Due to its length, the pertinent text is set forth in the

appendix.

STATEMENT OF THE CASE

A. Basis for Federal Jurisdiction in the Court of

First Instance.

The district court had jurisdiction over this matter

pursuant to 18 U.S.C. § 3231. The Ninth Circuit had

jurisdiction over appeals from final judgments of the

district court under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

B. Statement of the Case.

The United States charged the Petitioner, Vincent

Martinez, with conspiracy, three counts of possession with

intent to distribute methamphetamine, and three counts

of use of a firearm in relation to a drug crime. Martinez

pled not guilty.

In Count I of the Indictment, the government alleged,

and the jury found, that Martinez and six other defen-

dants participated in a single overarching drug conspiracy

that began before May, 1995, and ended on April 17, 1997,

when government agents executed a search warrant on

the home of Sherry Bishop. Although the conspiracy, as

alleged, spanned over two years, the evidence with respect

nheoncnaabiiiestitamciia: hous tes, te,

to Martinez concerned only the seven-month period

between May, 1995 and January, 1996.

On December 30, 1995, Martinez was arrested on

unrelated state court charges. He remained incarcerated

for the majority of the remaining fourteen months of the

alleged conspiracy. The government acknowledged that

there was no evidence that Mr. Martinez had any further

contact, let alone involvement, with any of the other

alleged co-conspirators after late January, 1996.

In April, 1996, while Martinez was in state custody, he

contacted the joint federal-state drug task force, head-

quartered in the Billings, Montana office of the federal

Drug Enforcement Agency. App. 9. On April 26, 1996, Task

Force Officers Lueck and Cummins went to the Detention

Center and, with the permission of Martinez’s state court

lawyer, debriefed Martinez. Martinez made a statement

implicating various people, including co-conspirators

Sherry Bishop, William Lanter, Carlos Salazar and unin-

dicted co-conspirators Eddie Donnes, Doug Brandon and

Michael Holliday, as being involved in methamphetamine.

App. 47-49.

Martinez testified by affidavit in the district court

that Agents Lueck and Cummins promised that the

information he provided the agents would not be used

against him by the government. App. 42-46. The govern-

ment agents disputed this claim. However, the AUSA

asked DEA Agent Williams to investigate. Agent Lueck

advised Agent Williams that he “[cJould not recall what

motivated Martinez to discuss the dope other than Marti-

nez wanted to make a clean break.” App. 10.

During the debriefing, agents Lueck and Cummins

took notes of Martinez’ statement and returned to their

office. Several months later, Agent Lueck prepared a DEA

6, “Report of Investigation,” concerning this debriefing.

App. 47-49. Lueck testified that the DEA provided him the

DEA 6 form and instructed him on how to comylete it.

After he completed the report, he submitted it to a DEA

supervisor for review and approval. It then became part of

the DEA drug trafficking database and was cross-

referenced to several existing files. The agents’ contempo-

raneous notes of the Martinez debriefing (and other

subsequent Rule 16(a)(1)(A) statements of Mr. Martinez),

however, disappeared and were never produced in the case

below. App. 15.

Agent Lueck testified that he did not know what

happened to the notes and letters from Martinez, although

he was sure he did not destroy or throw them away. He

then testified: “You know, to my knowledge, I turned

everything over to Special Agent Williams. It was his case,

and I gave him the information that was given to me.”

Although Agent Williams acknowledged seeing at least one

letter from Martinez after the 1997 raid on Sherry

Bishop’s home, the government argued it was not respon-

sible for the lost statements because Agents Lueck and

Cummins “were not cross-deputized.”

The information Martinez provided to the DEA played

a pivotal role in the ultimate demise of the alleged con-

spiracy. On April 16, 1997, nearly one year after the

Martinez debriefing, Agent Cwalinski, working under the

direction of DEA Agent Williams, prepared an Application

for a warrant to search the home of Sherry Bishop for

methamphetamine and related items. App. 50-51. His

statement of probable cause relied primarily upon three

“sources of information.” One of the sources, and the only

source identified by name, was Martinez. App. 51.

Cwalinski testified that he found Martinez’ statement to

be reliable, pertinent and that it “corroborated some of the

information in the majority of the warrant.” For those

reasons, he used Martinez’ statement to obtain a warrant,

advising the judge:

On April 29, 1996, Billings ... Detective Rick

Lueck, who is assigned to the City/County Spe-

cial Investigations Unit, interviewed Vincent

Martinez. Martinez provided the names of sev-

eral subjects in Billings, MT that were involved

in methamphetamine sales and distribution.

Sherry Bishop was a person identified by Marti-

nez who sells methamphetamine.

App. 51.

Based upon Martinez’s statement and corroborating

information, the state court issued the search warrant and

the police, working under the direction of the DEA, found

drugs, guns and other items. Williams admitted that all of

the evidence later used to prosecute the defendants,

_including Martinez, was the direct or indirect result of the

search of Bishop’s home and that all of the defendants in

the courtroom, including Martinez, were present as a

direct or indirect result of the search of the Bishop home.

Williams thus admitted that the search warrant, issued in

part upon information provided by Martinez, was very

important to his investigation.

Following the April 17 search, the agents worked

backwards in their investigation that led to the indict-

ments of ten people, including, eventually, Martinez. Prior

to trial, Martinez filed several motions, including a motion

to dismiss five of the seven counts against him, on the

grounds that he withdrew, as a matter of law from the

conspiracy when he provided law enforcement with the

information about meth distributors, that was later used

by law enforcement to obtain a search warrant that in

turn led to the discovery of drugs and the indictment in

this case. App. 53-78.

He further moved to dismiss all counts on the basis

that Agents Cummins and Lueck granted Martinez infor-

mal immunity when they debriefed him while in state

custody. Kastigar v. United States, 406 U.S. 441 (1972).

When the notes of the debriefing and other statements

made by him to government agents were not produced

as required by Federal Rule of Criminal Procedure

16(a)(1)(A), although the government admitted their

existence, Martinez moved to dismiss for loss of eritical-

evidence. Brady v. Maryland, 373 U.S. 83 (1963).

Finally, Martinez moved to sever his trial from the

others, pursuant to Rule 14, because he intended to use

the DEA 6, which formed the basis for the search warrant,

as evidence of withdrawal from the alleged conspiracy.

App. 53-78. Because the DEA 6 incriminated co-

defendants at trial, and Martinez had a right against self-

incrimination, Martinez’s use of the DEA 6 for his own

defense would violate Bruton v. United States, 391 U.S.

123 (1968) and absent a severance, Martinez would be

denied his right to present a defense and to fully cross-

examine witnesses against him. Zafiro v. United States,

506 U.S. 534 (1993). Id.

The district court denied these motions and then, to

prevent a severance, excluded all evidence of (1) Martinez’

statement about meth dealers, including the fact that he

identified several co-defendants as meth dealers; and (2)

the government’s use of the Martinez statement to crack

the conspiracy. The jury convicted Martinez of conspiracy

and two 924(c) counts, and Martinez was sentenced to 593

months in federal prison. App. 28. On appeal, the Ninth

Circuit affirmed.

RT CL aa a ae

On rehearing, the Ninth Circuit reversed Martinez’

conviction under Count VI of the Indictment, a violation of

21 U.S.C. § 924(c)(1), which concerned possession of a

firearm (under a Pinkerton theory) that came into the

alleged conspiracy over one (1) year after Mr. Martinez

was in state custody and over one (1) year after he pro-

vided law enforcement the statement about meth dealers

that was later used by law enforcement to obtain the

search warrant of Sherry Bishop’s home that in turn also

led to his own Indictment.

The Ninth Circuit found that the exclusion of Marti-

nez’s statements to the DEA and the government’s use of

his statement was evidence of withdrawal from the alleged

conspiracy and more likely than not affected the verdict on

Count VI and thus reversed that count of conviction. App.

14. In light of the reversal of Count VI, the Ninth Circuit

concluded that Martinez’s severance argument was

“moot.” App. 15. It further concluded that Martinez failed

to show that the loss of the evidence of immunity was due

to the government’s bad faith. Jd. With respect to the

Confrontation Clause issue, the Ninth Circuit concluded

that the jury had sufficient information to gauge witness

credibility. App. 14.

ARGUMENT

A. The District Court’s Exclusion of Exculpatory

Evidence and Refusal to Sever Martinez Denied

Him the Right to Present a Defense and To Fully

Cross-Examine Witnesses Against Him.

In Zafiro v. United States, 506 U.S. 534 (1993), this

Court made it clear that severance should be granted “[ilf

there is a serious risk that a joint trial would compromise

a specific trial right of one of the defendants, or prevent

the jury from making a reliable judgment about guilt or

innocence.” 506 U.S. at 539. The Court identified two

situations involving such a serious risk of prejudice.

The first is when the evidence the jury should not

consider against the defendant, and that would not be

admissible if a defendant were tried alone, is admitted

against a co-defendant. This includes situations such as

the admission of the co-defendant’s prior acts or of a co-

defendant’s statement inculpating the defendant. The

second example is when a defendant might suffer preju-

dice if exculpatory evidence that would be available to a

defendant tried alone is unavailable in a joint trial. 506

U.S. at 539.

In this case, Martinez’ co-defendants, Lanter and

Salazar, enjoyed a constitutional right of confrontation.

Bruton v. United States, 391 U.S. 123 (1968) holds that a

defendant’s Sixth Amendment right to confrontation is

violated when the confession of a non-testifying co-

defendant implicates the defendant as a participant in a

crime and that statement is admitted in a joint trial. 391

U.S. 135.

Martinez, on the other hand, enjoyed the fundamental ~

right to defend himself against the charges against him,

including presenting evidence of withdrawal, immunity

and confronting other witnesses with the evidence. “Con-

frontation Clause violations can require a court to sever

trials.” United States v. Mayfield, 189 F.3d 895, 901 (9th

Cir. 1999).

The district court, as the Ninth Circuit observed,

“faced two equally undesirable choices — admit Martinez’s

statements to law enforcement and risk a possible mistrial

on Bruton grounds, or order Martinez’ case severed on the

Sei are

eve of trial. But however unsavory the choice, it had to be

made. Because the exclusion ruling was clearly erroneous,

and because this error more likely than not affected the

verdict against Martinez on Count VI, we reverse as to

that count.” App. 12. Thus, the Ninth Circuit admitted,

implicitly, that the district court’s order excluding evidence

of Martinez’s statement and refusing to sever “compro-

mised a specific trial right,” the right to present a defense

and to cross-examine witnesses. App. 13-14. The Ninth

Circuit further held that the district court erred by deny-

ing the motion to sever, but because it reversed on Court

VI, found the severance issue “moot.” App. 15. This does

not comport with Martinez’s right to present a defense and

fully cross-examine witnesses against him.

“Whether rooted in the Due Process Clause of the

Fifth Amendment or in the Compulsory Process Clause of

the Sixth Amendment, the constitution guarantees crimi-

nal defendants the right to present a defense.” United

States v. Blum, 62 F.3d 63, 66 (2nd Cir. 1995). See also

Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (“Few

rights are more fundamental than that of an accused to

present witnesses in his own defense.”). “The right to

cross-examine one’s accusers is fundamental in our system

of justice. Cross-examination is the principal means by

which the believability of a witness and the truth of his

testimony are tested.” United States v. Marsh, 144 F.3d

1229, 1240 (9th Cir. 1988). The exclusion of exculpatory

evidence and refusal to sever Martinez denied him his

right to present a defense and to fully cross-examine

witnesses against him, thus tainting all counts of convic-

tion.

Sherry Bishop was the principal adverse witness

against Martinez. The evidence established that Bishop

provided the DEA with multiple statements following her

SA go Sec SARE NEES Ss SP PERI I LE PBS a eto piesa waht vi

arrest in 1997. Before she was indicted, she advised agents

that Martinez did not distribute meth, although she stated

he “supervised” Salazar. After her indictment, and the

receipt of discovery, her statements about Martinez

changed significantly. She then made statements about

distributions of meth and the discharge of firearms to

collect drug debts — serious allegations — and the basis for

which the jury later convicted Martinez. Although Marti-

nez was able to impeach Bishop about the absence of such

statements in earlier debriefings, he was unable to dem-

onstrate to the jury the motive she had to fabricate her

testimony — the fact that Martinez told law enforcement

that she was a meth dealer, and that Martinez’s statement

to law enforcement was used in the search warrant appli-

cation that led to the search of her home, her indictment,

the loss of her children and her incarceration. This, in

turn, has a prejudicial effect on the two (2) counts of

conviction because it deprived the jury of key evidence

necessary to fairly evaluate Mr. Martinez’s guilt or inno-

cence with respect to distribution of meth and the use of

firearms.

Martinez respectfully submits, as the Ninth Circuit

found, that the exclusion of evidence and refusal to sever

denied Martinez certain trial rights: the right to present a

defense and to fully cross-examine witnesses against him.

The reversal on Count VI did not remove the admitted

taint on the remaining counts of conviction. |

B. The Destruction of Brady Material Denied

Martinez the Right to Present a Defense and

His Right to Due Process of Law.

The government destroyed or lost relevant documents

in its possession critical to the issue of the immunity that

Martinez testified he was offered in support of the state-

ments that he provided to the government that were later

used by the government to prosecute and advance this

conspiracy. When the defendant is precluded from admit-

ting such obvious exculpatory information because the

government has lost or destroyed that information, the

defendant is prejudiced and denied his right to present a

defense.

A defendant’s right of access to evidence obtained by

the government is protected by a variety of statutory and

constitutional safeguards. In Brady v. Maryland, 373 U.S.

83, the Court held that the government must volunteer

“evidence favorable to an accused upon request ... where

the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecu-

tion.” 373 U.S. at 87.

In Giglio v. United States, 405 U.S. 150 (1972), the

Court expanded the rule to include evidence that may be

used to impeach an important government witness. As a

result, the prosecution must disclose materials “that go to

the heart of the defendant’s guilt or innocence and materi-

als that might affect the [trier’s] judgment of the credibil-

ity of-a crucial prosecution witness.” United States v. Hill,

976 F.2d 132, 134-35 (9th Cir. 1992) (citing Giglio, 405

U.S. at 154).

In short, there is a long-established duty on the part

of the government to preserve all evidence subject to

discovery that is gathered during the course of an investi-

gation; in particular, witness statements. The DEA Special

Agents’ Manual recognizes this duty and that sanctions

will be imposed for the loss of agent notes:

6211.6 PRESERVATION OF INVESTIGATIVE

NOTES.

A. Rough notes taken by an Agent while inter-

viewing a potential government witness, an

informant, a suspect, or a subject of an in-

vestigation are subject to discovery. Failure

to produce these notes, even due to good

faith loss or destruction, could result in dis-

missal of the case. Agents will therefore pre-

serve any such notes even though their

contents have been subsequently reported

on a DEA Form 6.

B. The term “notes” includes handwritten

notes, original tapes, or other work papers

made during the interview of potential

government witnesses.

Excerpt of DEA Special Agent’s Manual, Exh. M, Tran-

script of Hearing, dated 5/27/99 at 33-36.

The government in this case “lost,” or was unable to

find, and had no explanation for its loss of, Mr. Martinez’s

statements that were used to form the basis of a search

warrant that led, in turn, to his own indictment. The

result of the loss of this evidence was devastating to Mr.

Martinez’ testimony that he was advised that the evidence

he provided would not be used against him, as it was in

this case. The government agents in this case merely had

to say the notes were given to another agent, who, in turn,

said he didn’t know what happened, to avoid any possible

finding of “bad faith.” In light of this testimony, the Ninth

Circuit found no evidence of bad faith destruction, a

finding that will rarely, if ever, result for a defendant like

Martinez. Arizona v. Youngblood, 488 U.S. 51 (1988);

California v. Trombetta, 467 U.S. 479, 487 (1984).

As a matter of due process of law, the loss or destruc-

tion of exculpatory evidence, where admitted by the

government, as in this case, and even if the result of

negligence, require the imposition of sanctions against the

government. This protection is necessary because of the

inherent danger that an agent may tailor a final report

from preliminary memoranda to fit the needs of the

prosecution, United States v. Carrasco, 537 F.2d 372 (9th

Cir. 1976), and/or because of the jurys inherent bias in

favor of law enforcement testimony and against that of a

person charged with a crime.

In United States v. Pollack, 417 F.Supp. 1332 (D.

Mass. 1976), the district court dismissed an indictment

because of the loss of a deputy sheriff’s notes which

formed the basis of a report. The facts of that case are

similar to those presented here. There, the defendant

claimed he agreed to work as an undercover agent for the

government and that his work would result in “considera-

tion for favorable disposition of any charges which might

have been forthcoming from his arrest.” Notes of the

meeting were prepared and later used, in part, for a

subsequent report. The notes were then destroyed. The

government agent disagreed any favors had been granted

to defendant. The district court then stated:

In view of these conflicting versions of cru-

cial events given by [the defendant] and the gov-

ernment agents ... the importance of the

contemporaneous notes ... of that conversation

looms large. Defendant and this court, therefore,

have been deprived of relevant, and perhaps

highly exculpatory, evidence important to the

resolution of the critical factual and legal ques-

tions on which this prosecution rests.

* *

In short, the missing notes represented a poten-

tially important piece of substantive evidence as

well as a means for impeaching the testimony of

one of the agents of the DEA Task Force.

Id. at 1342-43.

In this case, the only evidence lost concerned Martinez

and his cooperation (and offer to cooperate) with the

government. The notes of the two government agents went

to a critical issue — the facts surrounding the debriefing of

Martinez and the offer of immunity from prosecution.

Martinez’s testimony before the district court makes clear

that he understood the information he provided to the

agents would not be used against him. App. 42-46. Instead,

it was used as the basis for the search warrant which in

turn led to his own indictment.

The agents’ notes, taken contemporaneously with the

debriefing, were even more critical because the DEA 6 of

the Martinez debriefing was not prepared until six months

after the debriefing. The loss of notes thus prevented

Martinez from examining the agents about (1) discrepan-

cies between the agents’ testimony and the DEA 6; (2)

discrepancies between the agents’ notes; and (3) most

importantly, establishing the existence of an agreement

that the government would not use the information

against Martinez, as it was in this case. This is critical

evidence — all relevant and highly exculpatory, that Marti-

nez was deprived of as a result of the government’s mis-

conduct. In such a situation, the requirement of a showing

of bad faith on the part of the: government under

Youngblood, does not comport with fundamental notions of

fairness and due process of law. A person charged with a

crime, and facing significant incarceration, should not be

held to such an unattainable standard. Instead, it is the

government that should be held accountable for the loss of

evidence, even if the loss is the result of negligence. Such a

result encourages accurate government investigations and

ensures that the criminal defendant is not deprived of his

right to due process of law.

In sum, the requirement that a criminal defendant

show bad faith on the part of the government agency,

when it loses exculpatory evidence, or evidence of a defen-

dant’s statements to law enforcement should be revisited

by this Court. Martinez understood he would be granted

immunity for the statements he gave to the agents —

statements that led to his indictment. Where, as here, the

government admittedly loses critical evidence, resulting in

a swearing contest between a criminal defendant and law

enforcement, it is the government that properly bears the

consequences of its own misconduct.

CONCLUSION

For the foregoing reasons, Mr. Martinez requests that

this Court grant the Petition.

Respectfully submitted,

BRIAN K. GALLIK

GOETZ, GALLIK, BALDWIN &

DOLAN, P.C.

Attorneys at Law

35 North Grand Avenue

Bozeman, MT 59715

(406) 587-0618

Attorneys for Petitioner

April, 2003

pe Py tl ge

App. 1

2003 WL 42274

United States Court of Appeals, Ninth Circuit.