1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY 2 LONDON 3 4 UNITED STATES OF AMERICA, CRIMINAL #96-00060 5 PLAINTIFF, 6 VERSUS LONDON, KENTUCKY APRIL 10, 1997 7 10:03 A.M. 8 CHALMER C. HAYES, 9 DEFENDANT. 10 11 TRANSCRIPT OF HEARING PROCEEDINGS 12 BEFORE THE HONORABLE JENNIFER B. COFFMAN UNITED STATES DISTRICT JUDGE, and a jury 13 14 APPEARANCES: 15 FOR THE PLAINTIFF: MR. PATRICK MOLLOY 16 MR. MARTIN HATFIELD ASSISTANT U.S. ATTORNEYS 17 110 WEST VINE ST. LEXINGTON, KY 40507 18 FOR THE DEFENDANT: MR. MARVIN MILLER 19 ATTORNEY AT LAW [ 20 [ 21 NATHAN F. PERKINS 22 OFFICIAL COURT REPORTER P.O. BOX 5161 23 LONDON, KY 40745 (606) 878-8450 24 PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY, TRANSCRIPT 25 PRODUCED BY COMPUTER. Page 1
2 APRIL 10, 1997
3 10:03 A.M.
4 THE CLERK: London Criminal Number 96-60, United
5 States of America versus Chalmer C. Hayes.
6 THE COURT: All right. Let the record reflect
7 that the defendant is present. His attorney is Mike Dean,
8 and his additional attorney - would you stand and introduce
10 MR. MILLER: Yes, Your Honor, I'm Marvin Miller,
11 I'm from Alexandria, Virginia. I understand you have
12 allowed me to appear pro hoc vice, and appreciate that very
14 THE COURT: Thank you. Good morning, Mr. Miller,
15 and welcome.
16 And the United States is represented by Martin Hatfield
17 and Pat Molloy, Assistant United States Attorneys.
18 Mr. Miller and Mr. Dean, you have filed some motions and
19 you have asked for a hearing. And I granted your request
20 for a hearing. And I will let you argue your motions.
21 MR. MILLER: All right. Your Honor, as I
22 understand it, if I might, the issues today are the
23 discovery matter and the matters related to that, and then
24 we were to schedule a remaining hearing after the conclusion
25 of today's proceedings. Am I correct?
1 THE COURT: No, this is a hearing - you asked for
2 a motion - asked for a hearing on --
3 MR. MILLER: Discovery.
4 THE COURT: On discovery and that's what this
5 hearing is about.
6 MR. MILLER: All right. Your Honor.
7 THE COURT: As far as I know, you haven't asked
8 for a hearing on any other motions and I haven't seen
9 reference to having a hearing on them.
10 MR. MILLER: All right. If I might do a
11 housekeeping matter before we get to the discovery issue.
12 We had filed a request for return of various property
13 that was taken at the time of his arrest. It's not evidence
14 in the case. I understand it's not being used for anything
15 else. I sent a draft order to the U.S. Attorney's office
16 listing specifically the items at issue. My understanding
17 is they have no problem with that. If I'm wrong, I'm sure
18 they will correct me right now. If I'm not wrong, may I
19 tender that to the Court so that that that may be done as a
20 housekeeping matter, Your Honor?
21 THE COURT: All right.
22 MR. MILLER: Thank you.
23 THE COURT: Give it to the marshal and he can give
24 it to me and I can let Mr. Hatfield or Mr. Molloy address
25 that when they have time to respond.
1 (A document was shown to the Court)
2 MR. MILLER: All right. Your Honor, I would like
3 to call Agent Brannan, if I might, in support of the
4 discovery motion for the defense.
5 THE COURT: All right. Agent Brannan, if you will
6 take the stand, please.
8 STEPHEN BRANNAN, DEFENDANT'S WITNESS, SWORN.
10 THE COURT: Agent Brannan, please use that
11 microphone so that everyone can hear you. And go ahead and
12 state your name and spell your last name for the record.
13 THE WITNESS: Stephen Brannan, S-T-E-P-H-E-N,
15 THE COURT: All right. Thank you.
16 Mr. Miller, if you would, use the microhone as well so
17 that you can be heard.
18 MR. MILLER: Yes, I will, Your Honor.
19 THE COURT: All right.
20 MR. MILLER: Thank you.
21 DIRECT EXAMINATION
22 BY MR. MILLER:
23 Q. All right. Agent Brannan, now, where is your office?
24 A. Birmingham, Alabama.
25 Q. All right. How long have you been in the Birmingham
2 A. Since January 1984.
3 Q. All right. And have you been stationed elsewhere prior
4 to that?
5 A. Yes.
6 Q. All right. How long have you been with the FBI?
7 A. Next month is my 25th anniversary.
8 Q. All right. And would you please for the record indicate
9 whether or not you hold any particular title or position
10 within the office, within the bureau's bureaucracy?
11 A. I'm a Special Agent and I am coordinator for crisis
12 negotiations. I'm a police instructor.
13 Q. All right. Now, during the years you have been with
14 the - with that agency, there have come occasions, I take
15 it, where you may yourself have had the to engage in
16 undercover operations as an undercover person yourself?
17 A. Yes.
18 Q. And that spanned various times and various types of
19 cases during your 25 years of experience; is that right?
20 A. Yes.
21 Q. All right. Now, during the time that you have been in
22 that situation, you have also had situations, I take it,
23 where you have taken an individual who was a subject of that
24 investigative activity and turned them to work with the
25 federal government as a cooperating person; isn't that
2 A. Yes.
3 Q. And in doing that, you have also had an occasion to have
4 them continue without revealing that they are cooperating,
5 so they are, in a sense, if I might use the term, acting
6 undercover for the agency in an investigation.
7 A. Yes.
8 Q. Now, have you ever had had an occasion as well, sir, to
9 be involved in circumstances where an individual who was a
10 charged defendant, and maybe it wasn't so well known that
11 they had been arrested and charged, turned out to be a
12 cooperating individual and was - and worked with other
13 people that were targets of the investigation?
14 A. Possibly. I don't recall any such instance off the top
15 of my head, but I think that's - it's possible that that
16 might have happened a few times in my 25 years.
17 Q. All right. Now, when people act as informants, whether
18 they are charged or uncharged, but are working in some sort
19 of undercover capacity as opposed to someone who just
20 provides information, they generally have what's called a
21 control agent, don't they?
22 A. Yes.
23 Q. I might not be using exactly the precise term, but
24 something to that effect, who is sort of in charge of that
25 individual to see that they get directions to what they are
1 supposed to do, investigate information and so on; is that
3 A. Yes.
4 Q. All right. Now, you are an instructor, so I'm sure that
5 you are aware there has been a fair amount of study into how
6 you proceed to handle people in that circumstance and how
7 you develop them and get them to work for the agency and
8 help advance investigations; isn't that fair to say?
9 A. Yes.
10 Q. All right. And you not only teach, but before you were
11 teaching, when you went to the FBI academy and refresher
12 courses and so on, it's something that agents are taught how
13 to do on a regular basis so that they are updated on more
14 up-to-date tactics and techniques and also on bureau policy.
15 Isn't that fair to say?
16 A. Yes.
17 Q. Now, when dealing with an individual in that capacity,
18 that is as an undercover operative, informant or whatever,
19 depending on the give case - everything I'm sure is
20 different, there is no ironclad way it - it has to be
21 flexible, but there are general rules and policies, aren't
23 A. Yes.
24 Q. Now, an individual in that capacity is generally given a
25 sort of a written document where they have to agree that
1 they are not going to commit crimes, they are going to keep
2 their control person informed of what they are doing, they
3 are going to cooperate and agree to take direction from
4 their control and so on, and they are not going to reveal
5 their status to the outside world so that the investigation
6 is compromised, et cetera; isn't that right?
7 A. There is no document that they are shown or asked to
8 sign to that effect, but they are advised orally by the
9 agent of those type - of that type information.
10 Q. All right. Now, when an individual is reporting to an
11 agent and they are having a meeting and say, okay, what did
12 you learn last weekend when you were out with these folks,
13 the agent generally prepares what's called an FBI - in the
14 FBI a 302 report, so that if there is a trial two or three
15 years down the road, six or eight months down the road, that
16 contacts with the witness, you will have a record of it for
17 use by the prosecutors, other agents and the like; isn't
18 that true?
19 A. If the agent feels that what is being reported might be
20 testimony in court, a 302 is done.
21 THE COURT: Mr. Miller, excuse me. Had we not
22 already had a trial in this case, I might permit a more
23 broad ranging hearing such as the one apparently which you
24 are developing. You have a motion for additional discovery
25 at the trial, which is a highly unusual motion. Get to the
1 point, please.
2 MR. MILLER: I am, Your Honor. Thank you.
3 BY MR. MILLER:
4 Q. Now, you indicated in your testimony at the trial,
5 though I couldn't find a specific request for it made at
6 trial, that you had had prior contact with Mr. Myers in
7 three or four other cases where he had provided information;
8 do you recall that testimony?
9 A. Yes.
10 Q. And that was correct, wasn't it?
11 A. Yes.
12 Q. Now, in some of those other cases where he provided
13 information to you, were 302's generated?
14 A. Yes.
15 Q. Did he ever actually turn out to be a witness in any of
16 those three or four other cases?
17 A. No.
18 Q. Were cases generated as a result of those three or four
19 other cases, other instances?
20 A. He was reporting on information - information on cases
21 that were already opened except for, I believe, one other
22 case where a case was opened based on what he had furnished.
23 Q. Now, so the record is clear, that's separate and apart
24 from this case?
25 A. Yes.
1 Q. So - so there was one that was opened as a consequence
2 and there were maybe three others where there was
3 information about ongoing existing investigations?
4 A. Yes.
5 Q. And 302's were generated there?
6 A. Yes.
7 Q. All right. Have those cases reached a point where the
8 decision has been made as to whether he would or would not
9 be a witness? Maybe there had been a trial and the trial is
10 over and he wasn't used, for example.
11 A. Some of each, you know.
12 Q. Okay.
13 A. Some of them have --
14 THE COURT: Mr. Miller, again, this is not the
15 discovery which you seek.
16 MR. MILLER: Yes, it is, Your Honor.
17 THE COURT: No, this is not. This is not your
18 opportunity for discovery. You have a motion here for
19 additional discovery.
20 MR. MILLER: Yes, Your Honor.
21 THE COURT: This is not your opportunity for
22 discovery. We're not here for a discovery deposition.
23 Now, apparently you have some points to make through
24 testimony that additional evidence exists, not - not that
25 you are here asking whether it exists. You have some points
1 to make that additional evidence exists that you wish to
2 persuade the Court to give to you. So let's ask a few
3 leading questions. You establish the existence of that
4 additional evidence, and then we'll go forward from there.
5 But I'm not going to permit you to take a discovery
6 deposition of Agent Brannan right now.
7 MR. MILLER: Your Honor, if I might, I know the
8 answers to every question I have asked but I need to put the
9 answers in the record, and I need to do it through a witness
10 rather than through my testimony.
11 THE COURT: All right. Let's pause here just a
12 moment then and you make an offer of proof right now as to
13 what it is you are trying to establish.
14 MR. MILLER: Well, I just established, I hope,
15 that there are 302's about other cases that exist relative
16 to Mr. Myers where he gave statements about other
17 individuals. And when we get to my argument, I'm going to
18 be arguing --
19 THE COURT: Well, you are giving me your argument
20 right now. That's not what I am asking for. I want to know
21 what other evidence exists that you think you should be able
22 do discovery. Now you say there are 302's in other cases in
23 which Mr. Myers was used. What other evidence is there?
24 MR. MILLER: He'll testify that there was an
25 effort to do an initial inquiry or suitability inquiry into
1 Myers as a potential, regular, on-line informant. He'll
2 explain what that is.
3 THE COURT: We've already had that testimony and I
4 already know what it is because I have seen the documents.
5 MR. MILLER: All right. I have not --
6 THE COURT: New evidence is what I am interested
8 MR. MILLER: I have not seen the documents of that
9 suitability inquiry. I think he will testify that Mr. Myers
10 was not accepted as a suitable --
11 THE COURT: He's already testified to at the
13 MR. MILLER: I did not see that testimony in the
14 record, Your Honor. I saw --
15 THE COURT: Am I mistaken?
16 MR. MILLER: I read the transcript and all I saw
17 was questions about this was gun begun and the subject was
18 dropped and was not followed up. Why I wanted him here
19 today, because it needed to be followed up to build a
20 factual predicate for my request. If it's in the record, I
21 did not see it. I apologize.
22 THE COURT: Let me set the stage for you just a
23 bit. It's my recollection, and maybe I'm wrong, that we had
24 a newspaper reporter, I believe, from Morristown, Tennessee,
25 who even handedly sent the prosecution and defense a large
1 packet of information. The day on which that was received,
2 I think the parties reviewed it and the next morning
3 promptly advised me that it had been received. It was on
4 that day that I granted a continuance of some eight to 10
5 days to review that material and for the defense to conduct
6 any necessary information that might stem from having
7 reviewed that material.
8 Toward the end of that continuance period, I think it
9 was on a Friday, maybe a Thursday, the government filed an
10 ex parte motion asking me to look at certain documents and
11 decide whether they had to turn those documents over. The
12 next day, on Friday, I believe, all afternoon I had
13 Mr. Molloy and Mr. Hatfield in chambers going through those
14 documents, and I ruled that those documents needed to be
15 given to the defense attorney either that evening or the
16 next morning. I got the defense attorney into the hearing
17 by phone. I advised the defense attorney that I had gone
18 over certain documents and that they were being given to him
19 and he chose to get them the next morning rather than that
20 evening. Part of those documents involved this suitability
21 inquiry. And it is my recollection that one of the things
22 which are I told the government that - that the defendant
23 had to be advised was that the United States - the FBI had
24 looked at Mr. Myers in the suitability inquiry and had
25 rejected him because they couldn't control him. And I seem
1 to be to recall that that was testimony at trial.
2 Maybe I'm wrong. But so far, I - I do hear that there
3 are 302's in other cases in which Mr. Myers was used, but I
4 don't hear anything new in your suitability inquiry.
5 Now, let me ask Mr. Molloy, is my memory correct on, on
6 both the continuance and when we had the hearing and the
7 nature of the testimony that came out later?
8 MR. MOLLOY: I believe so, yes, Your Honor.
9 THE COURT: Okay.
10 MR. MILLER: Your Honor, I have looked at the
11 record, and that he was rejected was not in there that I
12 saw. And in what I received from former defense counsel, I
13 saw nothing --
14 THE COURT: It was in there. It was in there.
15 That's - he's already testified to this at trial.
16 MR. MILLER: Your Honor, I have seen no records or
17 documents that --
18 THE COURT: You will just have to look at the
19 record again, Mr. Miller.
20 Now, tell me what else that you believe is new evidence
21 that you think you can adduce from Agent Brannan.
22 MR. MILLER: Well, Your Honor, just on this issue,
23 Your Honor, on page 173, when Mr. Hatfield made --
24 THE COURT: Mr. Miller, I'm sorry, but I am not
25 going to go through the transcript with you. I will tell
1 you there were certain reasons I believed those documents
2 should come in, and one of the reasons was that I thought
3 this jury that heard this trial was entitled to know that
4 the FBI had considered making Mr. Myers a confidential
5 informant and had done a suitability inquiry and had
6 rejected him. And so that testimony, I thought I
7 remembered, was - was adduced at trial. And Mr. Molloy says
8 I'm correct in that. So you will just have to look at the
9 transcript again. I'm not going to go through it page by
10 page with you now.
11 Now, tell me what other evidence that is new that this
12 jury did not hear is out there that you think you should
14 MR. MILLER: I do not know that the defense,
15 however, received those records. I - I don't know - see the
16 testimony in the record. It may be. I read it and didn't
17 find it. And I have never seen the records. So I think the
18 records are producible. I know that part --
19 THE COURT: We have been through the records. You
20 should be given - you should have been given a set of
21 documents which had been redacted to eliminate reference to
22 other cases, and if you haven't, that's a transition problem
23 on the defense team.
24 However, I will tell Mr. Hatfield that I would like for
25 him to look and see if he can make another copy of that
1 packet of information and give it to you so as to - so as to
2 bring you up to speed. But I will tell you that the defense
3 was advised that he had been considered and was rejected,
4 and defense was not entitled, in my estimation, to
5 references about other cases. And if you disagree, you will
6 just have to ask the Court of Appeals to look at that.
7 MR. MILLER: I understand.
8 THE COURT: Let's move on to the next issue --
9 MR. MILLER: Your Honor --
10 THE COURT: The next issue is what other documents
11 are out there or what other information is out there that is
12 new that you think you are entitled to discover.
13 MR. MILLER: There is an indication in Myers'
14 military record, a portion of it which was provided, that
15 there - that in his 201 file - and the agent would testify
16 that a 201 file is a military personnel record file that
17 contains the whole military life of anybody who serves in
18 the armed services.
19 He would further testify that such 201 files as to Myers
20 are sometimes available to the FBI when they are doing
21 investigations, such as if Myers was a suspect in a bombing
22 case or other sort of criminal activity; and that they have
23 not looked at his 201 file; and that in the initial
24 information they did receive, there was an indicia that he
25 had had psychiatric evaluations in the military that
1 established a permanent, current, ongoing psychiatric
2 problem and that there was a consideration of - and I do not
3 know because do not have the records - of an administrative
4 discharge from the military.
5 That is inconsistent with Myers' testimony and I
6 believe, from my exploration with psychiatrists, might lead
7 to the use of expert testimony to impeach Myers'
8 credibility. And for other reasons. I'll get to the legal
9 argument why. But those records exist. They have not been
11 THE COURT: All right. Let me - let me just stop
12 there for a minute. With regard to Mr. Myers' military
13 records, I will admit my memory is not as specific and I'm
14 going to ask either Mr. Hatfield or Mr. Molloy, remind me
15 what documents you did give to defense counsel and what
16 testimony came in about that.
17 MR. HATFIELD: All right, Your Honor. We turned
18 over a letter dated February 14th, 1980, that had comments
19 on it concerning Mr. Myers about what his diagnosis was, I
20 suppose, would be the simplest way to put it. And we filed
21 all of this in the record, as the Court will recall. There
22 should be a sealed file that was a - a copy of all of this
23 prior to being redacted. And then there also should be
24 redacted copies.
25 THE COURT: All right. In the redacted copy, what
1 references were - just generally, what references were --
2 MR. HATFIELD: I don't think we redacted documents
3 1 and 2, as I've got them marked, and they should be marked
4 the same way in the record.
5 THE COURT: You don't think that those were
7 MR. HATFIELD: I don't think that those were
9 THE COURT: The military documents were given over
10 in full, in other words?
11 MR. HATFIELD: I think so, Your Honor, is to the
12 best of my --
13 THE COURT: All right, sir.
14 MR. HATFIELD: And I've got them right here. One
15 is this letter from a William F. Shivers, S-H-I-V-E-R-S.
16 And then there was another document attached to - two more
17 pages attached to that. And that was pretty much it on the
18 military history.
19 THE COURT: All right.
20 MR. MILLER: Your Honor, he --
21 THE COURT: Just a minute, let me ask a question.
22 MR. MILLER: Sorry.
23 THE COURT: Didn't one of those documents
24 indicate -- Well, I have them right here in front of me.
25 MR. HATFIELD: Mixed personality disorder.
1 Strongly recommended that this individual be considered for
2 administrative separation. Said generally these disorders
3 are lifelong and deeply ingrained maladaptive patterns of
5 THE COURT: And that document was turned over to
6 the defense?
7 MR. HATFIELD: Yes.
8 THE COURT: All right.
9 MR. HATFIELD: It's all laid out here exactly
10 what, in my opinion, what a summary would be of any records
11 that the army may have on him and his mental condition.
12 THE COURT: All right.
13 MR. HATFIELD: My recollection of trial is that
14 the defense was not able to delve into this because the
15 Court ruled - and I gave the Court a case, I think, out of
16 New York, whatever circuit that is.
17 THE COURT: Second Circuit.
18 MR. HATFIELD: Second Circuit, and it set out some
19 guidance that - like three factors that the Court should use
20 in making a determination about issues like this. And I
21 think the Court found this being back in 1980 and not - and
22 finding also that since there was no evidence that this
23 still existed at the time of the instant case some 16 years
24 later, that the defense could not get into this issue.
25 THE COURT: Okay. All right. Thank you.
1 MR. MILLER: Your Honor.
2 THE COURT: All right.
3 MR. MILLER: The witness would testify that what
4 you do have is not the complete record, it's only a partial,
5 it's the tip of the iceberg. And the witness would further
6 testify that there are a lot more records that are involved.
7 And if you recall the Ake case, Ake versus Oklahoma
8 case, where they recognized that the conclusion to which
9 they make reference here is certainly subjective, says the
10 Supreme Court, and that in those circumstances defense
11 attorneys are always entitled in that case, in an indigent
12 case, to the appointment of an expert so that they can see
13 whether or not the subjective view on which a prosecutor
14 might rely would have a countervailing view from a
15 psychiatrist of equal skill. And the Ake came before the
16 court in the context of whether or not you could get an
17 expert of that type. And they said, of course, you can,
18 because of the nature of psychiatric medicine and its
19 prevalence in criminal law. And that's been the law since I
20 think 1986, if I'm not mistaken on the date of that case.
21 The other issue is that this witness would testify that
22 you do not have and he does not have and the government
23 attorneys in this case do not have the entire record. They
24 do not have and have never gotten the 201 file, which would
25 be more complete and wouldn't be the conclusion but would be
1 the factors and dates that led to the conclusion, so that I
2 could have my man look at it and determine whether or not
3 that conclusion is correct or it might be more severe.
4 And the conclusion was that there was no proof - I don't
5 recall the argument because, you will have to forgive,
6 because I didn't try the case. But if there had been an
7 argument that the condition didn't exist at the time of
8 trial, that's belied by the statement that says it's a
9 lifelong, incurable situation. So their own records show
10 that's not true.
11 And we're not in a position to tell the trier of fact
12 and you are not in a position to decide whether or not it
13 existed unless we get the records and someone looks at it
14 and says, okay, yes, it's no longer there, and I can't say
15 it, drop the issue. If it's there forever and it affects
16 the credibility of the witness? Then you have to look at it
17 and decide what that means in the context of case. And the
18 witness's testimony would bolster that.
19 THE COURT: Okay. So if I understand you
20 correctly, you are saying then that you want the full 201
22 MR. MILLER: Yes, Your Honor.
23 THE COURT: And want me to reconsider on the - on
24 the psychiatric information, and now for the first time
25 after trial you are asking for the appointment of an expert
1 to examine these documents.
2 MR. MILLER: No, I'm not. I am saying that if we
3 get this information, then I will - I am not asking for
4 appointment, I'm saying the law would authorize it if he
5 were an indigent. We're not in that circumstance.
6 THE COURT: Right.
7 MR. MILLER: We would retain one to review it and
8 then tell us what it, if anything comes of it. I can't sit
9 here and presage it, as you well know, and don't deign to do
10 that before this Court.
11 THE COURT: And you would concede that no such
12 request was made at trial.
13 MR. MILLER: I see - I see none made at trial. I
14 recall reading in the transcript that, at the adjournment
15 that occurred during the midst of trial, one of the issues
16 raised was an evaluation of Myers' suitability as a witness.
17 You raised that, sua sponte.
18 THE COURT: Yes.
19 MR. MILLER: All of the -- the conclusion was
20 provided, I guess, on the Friday before the reconvening of
21 court or maybe the Saturday morning before the reconvening
22 of court, which is in the fifth paragraph of document number
23 2 of the military records just referenced by the
24 prosecution. But in the fifth numbered paragraph, the bases
25 for the conclusion is not provided. And in those records
1 that that were provided, the bases is unavailable. And so
2 the defense was not able to have their own expert look at it
3 and say, not only is this true but there is more.
4 I don't want to promise you that it's there because that
5 wouldn't be fair to anybody.
6 THE COURT: I understand. My point is no such
7 request was made at trial.
8 MR. MILLER: There was a --
9 THE COURT: But I will, I will look at this. I
10 will look at your Ake case and I will look at that.
11 Now, let's move on to whatever other evidence you think
13 MR. MILLER: All right, Your Honor, if you will
14 look at the NCIC record that was provided, you will note
15 that there was - it was - and the witness would testify that
16 it's a multi-state record. He'll further testify that
17 multi-state records are not uncommon.
18 In addition, his testimony would reveal that when you
19 get multi-state records, you will have, as this record has
20 in the bottom, I believe, of the first or second page state
21 ID numbers. And you will recall from trial, that at the
22 trial the prosecution provided you with a North Carolina, I
23 believe it was, criminal record of a case involving
24 Mr. Myers. And they obtained that, he would testify, by
25 taking the North Carolina ID number on the NCIC report,
1 tracking it into North Carolina, into their criminal justice
2 system and pulling out the information which was provided to
3 the prosecutors, provided to the Court, and used during
5 He would further testify that they did not take the
6 report, which on its face says its incomplete, is without a
7 complete state record check, and go into the California
8 record number that was provided. He would testify that
9 California is a system that's computerized. He'll testify
10 that they did not investigate that case. He would testify
11 that during the trial, and I believe after Myers had been
12 completed as a witness for both sides, that a reporter gave
13 them partial information regarding the California case and
14 that even as of today they have not pulled the full record
15 of the California case.
16 He would further testify that if Myers was, for example,
17 a suspect in a criminal case here or in Alabama where his
18 office is located, he would be able to apply to the local
19 law enforcement in California that were involved in that
20 case and that local law enforcement, though not always, of
21 course - people have their personality quirks in the law
22 enforcement like in any other endeavor in the world - but
23 generally they cooperate and try to help the FBI; and that
24 they would have made the entire investigative file
25 available; and that in that investigative file there is an
1 indicia that Mr. Myers had been in the Highland Psychiatric
2 Hospital in Oakland, California; and that there may be in
3 that file, which they do not have and cannot tell you about
4 right now, and that is available to them and not available
5 to me, whether or not they got any reports from that
6 hospital, whether or not they made a recommendation either
7 sua sponte, ex parte, or otherwise, to the prosecutor or to
8 the Court based on the totality of the circumstances, which
9 I don't know and they can't tell you, that he be evaluated
10 for psychiatric purposes.
11 And what that psychiatric diagnosis was - I think they
12 may have access, and I can't swear to this, this is an area
13 where I would be making an inquiry, whether or not they
14 would have access to those psychiatric records. If it is an
15 institution where he was there under some sort of court
16 order in sort of a penal psychiatric facility - and I can't
17 address that, Your Honor - but were that the case then their
18 exploration into that record would give them access to those
20 And you take those records and add them to the
21 psychiatric review and testing in the military and give them
22 to us, then we're in a position to give a very full picture
23 available to our expert that will assist in determination as
24 to whether or not it is a tool that could be useful for the
25 defense. Then we can have that information available and
1 present that to you so that you can decide whether or not in
2 your view it would give us relief or not. But we're in a
3 blind corner and can't do that.
4 This witness would further testify that there is
5 availability to the FBI to information from individuals who
6 are and have cooperated with other federal law enforcement
7 agencies. The most common everybody knows about is the ATF
8 and DEA. They are more in the news now than any other. But
9 there are a series of agencies, and that there was no
10 exploration into other agencies to determine things about
11 Mr. Myers.
12 He would further testify to you that there is another
13 system called the NADIS system, and that a NADIS number is a
14 federal FBI type law enforcement number for internal federal
15 information. And I will, quite frankly, tell you that I
16 don't know whether they did a NADIS check on him or not.
17 Whether or not he even has an a NADIS number, I was going to
18 ask that question, because nobody seems to have made inquiry
19 about it before. And whatever he says would be his answer,
20 I can't tell you that. I know the system exists. I don't
21 see anything that shows me that there was an inquiry into
23 THE COURT: All right. So your point there is
24 that your client - really, is that the FBI did not explore
25 information that might be possessed by other federal
1 agencies and that you feel that other agencies would have
2 cooperated with the FBI.
3 MR. MILLER: Yes, I do. And - and that is a
4 factual predicate for a case law issue. In other words, I
5 want to make a legal argument, but I want to establish a
6 factual predicate prior to making the argument.
7 THE COURT: All right. What other evidence do you
8 believe is out there which should be discovered at this
10 MR. MILLER: Excuse me just a minute, Your Honor.
11 (A pause was had in the proceedings)
12 MR. MILLER: Pretty much, that is the sum and
13 substance. But I can't give you chapter and verse on that
14 right now, because I will tell you I was really fishing on
15 that one, I didn't see it anywhere, and I shouldn't have
16 seen, but I thought he will say either I have one or I
17 didn't have one. Other than that, that's it.
18 THE COURT: Let me suppose for you that I accept
19 as true your factual predicate that the FBI did not get and
20 could have, as you say, sometimes gotten the full 201 file
21 from the Army; let me - let me accept your factual predicate
22 that they could have explored more fully the California
23 prosecution and the California hospitalization; and let me
24 accept for a moment your factual predicate most recently
25 made that the FBI did not explore into other agencies in
1 order to get other additional information, and that those
2 agencies would have cooperated.
3 If I accept all of those factual predicates, do you need
4 any other testimony this morning?
5 MR. MILLER: I do not. There is one other area of
6 inquiry that I neglected on my list, Your Honor, very
8 THE COURT: All right.
9 MR. MILLER: Mr. Myers is the author of a series
10 of publications on various subjects from Paladin Press. And
11 if I can, there are not that many titles, take a moment and
12 read them to you and then tell you the question I would ask
13 the witness as a result of that, and what I think his answer
14 would be, if that's all right with the Court.
15 All right. Four books, with is improvised Radio
16 Detonation Techniques - referencing the radio detonation of
17 explosives -
18 Improvised Radio Jamming Techniques: Electronic Gerilla
20 One titled Smart bombs -- I will give you a copy.
21 THE COURT: Slow down a little bit and read those
22 into the record and then you may give him a copy if you
24 MR. MILLER: All right. Improvised Radio
25 Detonation Techniques.
1 Improvised Radio Jamming Techniques: Electronic Gurilla
3 Smart booms: Improvised Sensory Detonation Techniques
4 and Advanced Weapons Systems.
5 SPYCOMM - which is all caps, S-P-Y-C-O-M-M, with no
6 space - Covert Communication Techniques of the Underground.
7 Now, and I will tender a copy so the court can give the
8 court reporter later on, Your Honor. That in the federal
9 law enforcement bureaucracy from time to time there are
10 developed intelligence files. Not to try and impinge upon
11 anybody's rights, but there are a host of criminal and
12 domestic and international areas, files, data on people that
13 write on subjects and speak on subjects so that at some time
14 in the future, if they are either needed to consult as an
15 expert or they are needed to be used for some other reason
16 or maybe even become the subject of some kind of
17 investigation, that they have these files.
18 And, for example, if in the case of States versus Moody,
19 I know that Mr. Myers was consulted by the defense, and I
20 know Mr. Brannan personally had knowledge of that and he
21 would testify that he did. There was a correspondence from
22 the defendant's lawyer to the AG's office in that particular
23 state case - it was a bombing case - whether whether or not
24 they should contact Myers. And Mr. Myers informed the
25 defense attorney of that, and he knew Mr. Myers then at the
1 time of the Moody case.
2 Just to show a factual predicate. The agents mentioned
3 it in the defense lawyer's letters to the state prosecutor
4 that those kinds of intelligence files sometimes exist. And
5 whether or not he has access to them, they haven't really
6 explored whether or not they exist on Myers. And there may
7 be in them - and I know that it's come up in other cases I
8 have had, sometimes it's zero - but there may be in there
9 information that would be something the defense could use
10 for its purposes in this case. And there was no explanation
11 to see about them, so I'm pretty sure they do exist.
12 The other book, Your Honor, that I neglected to mention
13 is a book called counter bomb, Protecting Yourself and
14 Against Car, Mail and Area Emplacement bombs, also by
15 Mr. Myers, on Paladin Press.
16 That's the factual predicate, Your Honor. I apologize
17 that I didn't get it all in. I missed my list, but Mr. Dean
18 corrected me, and I appreciate it.
19 THE COURT: For the purpose of your motion to
20 allow additional discovery post-trial, I am going to accept
21 your factual predicates, that is accept that this
22 information may be out there, and I think you - I don't
23 think we need any further testimony on that based upon what
24 you have told me.
25 So, Agent Brannan, return to your seat. And if you have
1 other argument to make with regard to this, you may go ahead
2 and do that, Mr. Miller.
3 MR. MILLER: All right. Now by that - I have no
4 further evidence and you are requesting legal argument at
5 this time?
6 THE COURT: Yes, that's right.
7 MR. MILLER: Thank you, Your Honor. There are
8 numerous cases which we cited in our memoranda and so on.
9 But the case that sort of pulls all of this together,
10 without backing from or not relying on any of the authority,
11 Kyles versus Whitley.
12 Now, Kyles is an interesting case. He was indicted for
13 the murder of a woman in a parking lot of a super market.
14 There were eyewitnesses. He went to trial. There was a
15 hung jury. There was a second trial. He was convicted. He
16 was given the death penalty.
17 There are people that said, I was in the parking lot, I
18 saw the murder, and that's the man. The murder weapon and a
19 homemade shoulder holster that fit it was located in his
21 The state appellate courts on direct appeal said that
22 even though there had been withholding of certain
23 exculpatory evidence, that it didn't amount to enough to
24 overturn the conviction. The Supreme Court denied cert. He
25 went through state and federal habeas corpus and they said
1 the withholding of exculpatory evidence did not warrant
3 The Court of Appeals, I believe it to have been the
4 Fifth Circuit in a two to one decision, ruled that the
5 withholding of the evidence did not warrant a new trial.
6 The Supreme Court, however, went through the record and said
7 that a new trial was warranted.
8 They went back, and recapturing the issue there, and in
9 focusing on the issue there to some of their earlier
10 decisions, said, saying that they had recognized that, for
11 example, in the original Brady decision and even after
12 Gigglio for a long period of time there was a belief,
13 mistaken on the part of many prosecutors and many judges on
14 the trial and on the appellate levels, that impeachment
15 evidence was not the same as a photograph of somebody else
16 committing the crime. And so they decided a case called
17 Bagley. And in Bagley they said just like the photograph
18 that a short, bald, fat man robbed the bank would exculpate
19 a tall, thin, long haired man from being accused of robbing
20 the bank, so too in Bagley would evidence that would make a
21 jury disbelieve a witness be on the same caliber, on the
22 same level, immediately produceable.
23 Now, there has been some confusion in the law, and there
24 had been under Jencks - that Jencks, which is a statute,
25 trumped the Constitution. But of course statutory law does
1 not trump the United States'constitution, nor does it trump
2 the bill of rights which are part of the Constitution.
3 There had been some people that thought that a statement
4 such as a person's criminal record was Jencks material. Of
5 course, it's not, because Jencks material is witness's own
6 statements. Bagley clarified a lot of that.
7 Then they went on to say in Kyles, that the issues that
8 one explores are not only impeachment, but evidence that can
9 be used for the purposes of attacking the prosecutor's case.
10 They talk about how the defense in many cases were relying
11 on the lack of thoroughness in an investigation. It's a
12 standard defense tactic. It's used often in jury trials, or
13 there are more in state cases and homocides than in others,
14 but it's used in a variety of criminal times of prosecutions
15 by the defense. And they recognize that.
16 And they said in their decision that you don't look at
17 an item individually and say that this item doesn't warrant
18 anything and that item doesn't warrant anything, you look at
19 them collectively. And when you look at them, the standard
20 is not whether or not had the evidence been introduced it
21 would have been a different result. And by saying, well,
22 let's see now, there is certainly enough information for the
23 jury to have rendered the verdict that they did and convict
24 the defendant, because that's not the inquiry, whether or
25 not there is sufficient evidence which, standing alone, if
1 the jury believed it, would have resulted in a conviction.
2 That's not the proper inquiry. The proper inquiry, they
3 wrote, is whether or not this evidence, taken as a whole,
4 raises a reasonable probability that there could have been a
5 different result. And so you don't see if there is
6 sufficient evidence to convict. And if you see that
7 threshold has been achieved, then the issue is not whether
8 or not it's harmless error, because if that threshold has
9 been achieved, it is error.
10 And they took a whole lot of disparate areas of the law
11 and sort of laid them to rest in the Kyles case. And in
12 doing that, they talk about not only considering
13 collectively rather than item by item, they talk about the -
14 the duty of prosecutors as well, and they talk about the
15 fact that the word reasonable as a modifying word
16 probability was in their minds significant. And so the idea
17 of a greater likelihood or more likely than not or the
18 harmless error didn't really apply.
19 And they talk in this case about that the evidence would
20 have laid the foundation for an argument that the police had
21 been guilty of negligence. They talked about the lawyer -
22 the trial tactic of defense lawyers to discredit the caliber
23 of the investigation. And they used the word caliber of the
24 investigation, which goes not only to whether or not they
25 may have been sloppy on this, that or the other, but the
1 caliber of the investigation as a whole, and the possibility
2 of assessing a Brady violation has to look at that and the
3 lawyer's use of this material in that tactic.
4 They used the issue also that whether or not the police
5 could have been irresponsible in that case in relying on an
6 individual who had numerous aliases, and in the case is
7 referred to as Beanie, because that is his most common
8 nickname, I take it. And this Beanie character was a key
9 source of information that led to the information which led
10 to them finding the decedent's purse in a garbage can
11 outside the premises where the defendant lived, on the
12 suggestion of Beanie, and finding the, I believe it was a
13 .32 caliber revolver in Mr. Kyles' apartment, on the
14 suggestion of Beanie. And that perhaps Beanie's suggestion
15 of where they look to find things may have been stuffed that
16 he helped set up, and that they didn't really go into
17 Beanie's background, they didn't do a proper investigation
18 of Beanie, which not only discredited some of their trial
19 testimony but also could have discredited, as they talk here
20 about the caliber of the investigation, and it could have
21 discredited the testimony of the witnesses who did testify
22 that were law enforcement. And so if - if it could have
23 done that, then it should have been produced.
24 In that particular case, there were inconsistencies by
25 Beanie, there were inconsistent statements by eyewitness -
1 eyewitnesses, and there was other evidence from other
2 individuals that in combination they thought would have cast
3 doubt on, notwithstanding the eyewitness, I saw him do it,
4 and notwithstanding the pistol that was the murder weapon in
5 his apartment.
6 And the dissent in that case argued, well, you can't say
7 this and you can't say that. And the majority opinion was
8 saying, well, look, the issue is reasonable probability.
9 So what have we here? We have another case that I
10 would - and I don't know that we cited this, so I've made
11 copies and I would like to give one, if I might, to the U.S.
12 Attorney. And you can have it available for your
13 consideration later on, Your Honor. The title is Perdomo, a
14 Third Circuit case. It's 1991. It's 929 F.2d, 967. And
15 the case at page 970 talks about the availability of the
16 government to go into other types of agency files to get
18 Excuse me just one minute, Your Honor. May I confer
19 with counsel?
20 (A pause was had in the proceedings)
21 MR. MILLER: Excuse me, Your Honor, I'm sorry.
22 Now, in that case they talked about the availability and
23 the need to go to other agencies, because the records in
24 that case were available through the Virgin Islands, the
25 federal protectorate, and they weren't readily available to
1 the investigators.
2 Kyles is very, very significant because of an issue that
3 they take on here, which is brand new in the law and not
4 just recapping the old law and trying to clarify things.
5 They talk quite clearly that the duty is on the prosecution
6 to look for and that they have to look to police sources and
7 police involved in the investigation, and that it's not as
8 Louisiana argued in this case that, well, I didn't know,
9 said the prosecutor. I'm sure he didn't. The Supreme Court
10 was sure that the state's attorney, as represented by the
11 Attorney General for Louisiana, didn't know. But they - and
12 they are saying that the issue is not whether or not they
13 acted in good or bad faith. That has nothing to do with it.
14 The issue is, is it out there and do they have a duty to
15 look for it?
16 And so where are we today with you? We're saying to
17 you, we've uncovered by what little we did get the obvious
18 existence of more. And after consulting with a psychiatric
19 expert, I wanted to get the Highland records.
20 Now, if law enforcement has them, that's easy. If they
21 don't, then I would ask the Court to enter an order that the
22 Highland Psychiatric Hospital in Oakland produce them here.
23 In other prosecutions where I have been involved before
24 trial and have learned of psychiatric records, I have
25 subpoenaed them for trial. But that's in cases where
1 everything is local.
2 There is a California case about which Mr. Myers did not
3 testify. I will take it that the agents and the prosecutor
4 did not have that information. They got what they got from
5 the news reporter after he had testified. So certainly
6 Mr. Galbraith who was representing Mr. Hayes couldn't have
7 had access to the California law enforcement records. And
8 buried in there is the reference to his hospitalization.
9 And so whether they acted in good or bad faith, we now need
10 to look at it. Because whether it was done intentionally or
11 unintentionally is not my quarrel. The quarrel is we now
12 know it's there, and if we're going to make a decision,
13 let's make an informed one.
14 The 201 file may have stuff that's totally unrelated to
15 a lot of things. Whether he was disciplined because he
16 didn't man his fire watch one night or he was late coming
17 back from leave and he got an article 15 - which is a
18 military informal disciplinary procedure for the Army - I'm
19 assuming he wasn't - he was in the army - that's not a
20 concern to me. But what's of concern to me is information
21 in there that would be useful combined with what we get from
22 California for a defense expert who is a professional - I
23 don't want to use somebody who is not really well qualified;
24 first of all, he wouldn't be of any good in a courtroom if
25 they are not - to look at and give us an assessment so that
1 we can bring it to you and say, Your Honor, had we had this,
2 it would have been a different matter and you need look at
3 this when you are making your decision. And we - and we
4 would want an opportunity so that we can do that, so they
5 can get the information.
6 If they can't get the 201 file, then the court can order
7 its production to the court for those purposes, the same as
8 with the Highland Psychiatric Hospital in Oakland,
10 I know that they have access to - and I do not, and
11 don't know whether what we got was all of it or not - the
12 criminal investigative file that's referenced in the NCIC
13 California number on the NCIC report. So as far as I
14 understand it, I don't know whether they have made a full
15 request for that or not.
16 I think they are obligated to this Court and to
17 Mr. Hayes to make a full request, and it could be, well,
18 this is it, you got the best, there is nothing else. But I
19 think they are obligated under Kyles and I think under
20 Perdomo to do a more detailed investigation and request.
21 And, Your Honor, there is also the situation where we
22 proffered - and the reason I asked the agent and would
23 proffer to the Court about the existence of intelligence
24 files based on those, is a retired FBI agent, when I asked,
25 I asked him so I wouldn't come up here and ask stupid
1 questions, he said - he told me that those files, he didn't
2 say that it does or doesn't exist, he says that it generally
3 would exist. And that's why I'm saying that they generally
4 would. And they can take a look, and maybe they are there
5 and maybe they are not.
6 The reason I went into Perdomo is because it may not be
7 an FBI file, it could be an ATF file. And so Perdomo I'm
8 offering to you as a legal justification that under that
9 scenario that he make an inquiry. And maybe through that
10 inquiry they'll come up zero or maybe through that inquiry
11 they'll come up with something.
12 It could be that when they come up with things, there
13 might be ongoing investigations and in those ongoing
14 investigations they have a legitimate interest in not
15 compromising the investigation and may need to submit it to
16 you under the Holmes decisions, which is one of the ones we
17 cited in our papers we filed earlier, for you to decide what
18 goes and doesn't go to the defense or how to redact it. It
19 may be that there would be the use of a protective order,
20 which are used sometimes.
21 I have been involved in intelligence cases where the
22 information was produced under a very strict protective
23 order so that we could then get together in very closed
24 hearings with the Court and prosecutors and argue whether or
25 not it further comes out or doesn't come out. But the
1 defense gets a chance to look at it. And in those cases I
2 don't even show it to my client. And the other lawyers that
3 looked at it, because it was - in that case it was national
4 security, it was foreign espionage and we had to be cleared
5 by the CIA to even see the stuff or else they we would have
6 to bring in a special lawyer for it.
7 This is not that kind of thing, this is criminal.
8 But there was a device where both sides were able to
9 appear before the Court and argue what it meant.
10 THE COURT: Well, I can decide on the device if I
11 do decide you are entitled to additional discovery. But I
12 would like to hear the government's argument. Do you have
13 any other substantive legal argument?
14 MR. MILLER: Yes, one other, Your Honor. And that
15 is sometimes in material that's produced, for example, often
16 prosecutors will say, well, you've got the guy's criminal
17 history, and that's all you need to impeach. Which isn't
18 true as a practical matter. And what I'm looking for in
19 these records is leads to witnesses. I have often had the
20 good fortune or dumb luck, whichever, to have gotten the
21 criminal record and gone back in the original criminal files
22 and found witnesses that were victimized by a prosecution
23 witness that I could bring to court and put on the witness
24 stand about the defendant's disposition, as a valid witness,
25 for a jury to see somebody live rather than a cold piece of
1 paper. And what may be in the 302's in the other cases that
2 I was asking the agent whether or not they existed and so
3 on, may be leads to witnesses that could do that. And
4 that's - the - that's the last piece of a legal argument
5 that we're looking for, Your Honor. Thank you.
6 THE COURT: Thank you. All right. On behalf of
7 the government. And I don't mean to cut you short, but I
8 have set aside an hour for this hearing because that's all I
10 MR. HATFIELD: I understand, Your Honor.
11 THE COURT: And so let's get to the point.
12 MR. HATFIELD: Well, I don't really know where to
13 begin, judge, just to be quite honest.
14 THE COURT: Well, let's begin with this, this
15 agreed order, or this order. Mr. Miller says that you don't
16 really have any problem with returning all of this property.
17 Is that true?
18 MR. HATFIELD: If that is the same order that he -
19 proposed order that he gave me, it should be credit cards,
20 credit cards and --
21 THE COURT: Is it the same order, Mr. Miller, that
22 you gave?
23 MR. MILLER: It is, Your Honor. I just reprinted
24 it on red line. It lists the same numbers, credit cards
25 that were in the jail. There was an amount of cash. I
1 can't remember the amount. If you look on the second page,
2 I believe toward the top, it will say whatever it was that
3 is in there. It is not any of the the evidence in this
4 case. It is not the large bills that were also retained,
5 and I think one of which was not put in evidence. This is a
6 separate - I will call it pocket money if I may, Your Honor.
7 THE COURT: My only question was, is this the same
9 MR. MILLER: Yes, it is.
10 THE COURT: All right. And so you agree to that?
11 MR. HATFIELD: No objection to that.
12 THE COURT: All right. I will sign this.
13 MR. MILLER: Thank you, Your Honor.
14 THE COURT: And enter this today, Mr. Hatfield.
15 All right. Now, the - as you heard me say, I'm not
16 going to allow this morning to be a discovery expedition.
17 MR. HATFIELD: Right.
18 THE COURT: I just want to know what evidence is
19 out there. And I will accept his factual predicate that -
20 and as I understand the factual predicate is there may be
21 more information out there; the FBI needed to do a more
22 detailed search with regard to Myers' 201 file, and
23 information other agencies may have, and its own files with
24 regard to exploring the expertise of Mr. Myers. And
25 Mr. Miller also wants to see the 302's in the other cases
1 which Agent Brannan admits exist. And in addition to all -
2 and Mr. Miller also wants to see the report from the
3 hospital in California and a thorough report from
4 California. And in addition to all that, he wants me to
5 reconsider my ruling on Mr. Myers' psychiatric history.
6 I will accept his factual predicate that there may be
7 more information out there for the purpose of ruling on
8 this. And I think you need to approach it that way.
9 MR. HATFIELD: Okay. There may be more out there,
10 Your Honor. I think what Mr. Miller is asking for is to
11 allow him to have an open file discovery of everything that
12 the United States has in its possession, and then decide,
13 almost like in a civil case, where you can locate material,
14 you are entitled to discover materials and what might lead
15 to other discoverable materials. That's the argument that I
16 hear him making.
17 I have no qualms with him on his - the legal requirement
18 that is put upon the United States under the Bagley case and
19 the Kyles case. And I think he correctly set out the
20 standard - let's see - reasonable probability if favorable
21 evidence could reasonably be --
22 THE COURT: I know the standard. I am familiar
23 with Kyles.
24 MR. HATFIELD: Okay. I think the bottom line is,
25 it has to have undermined the confidence of the trial.
1 Now, also these cases deal with the issue of
2 nondisclosure, where evidence was suppressed. We don't have
3 that here. There was no evidence, nothing was suppressed
4 from the defense in this particular case.
5 Now, that's not to say that there is not more out there.
6 But we turned over to the defense in time for their use to
7 effectively use to cross examine Mr. Myers, the statement
8 which Mr. Myers prepared, as well as the NCIC report. That
9 was turned over, as I recall, the day before Mr. Myers
11 Now, as we know looking back, there was - there was
12 more. And immediately upon us finding - regarding us the
13 NCIC report. Immediately upon us knowing that, and I think
14 this - the record is clear on this, we - the agents got on
15 the phones and started calling California and Tennessee and
16 other places. And as the Court will recall, what resulted
17 from that was a packet of materials. And they should be in
18 the record. And I think we even mark them as exhibits. But
19 there was a packet of materials that we received from
20 Tennessee that led us to California. We basically got the
21 same materials from California. The materials we got from
22 Tennessee were received from a reporter. Subsequently, we
23 got copies of the same materials, which were under seal in a
24 court proceeding down there.
25 So we went through law enforcement in Tennessee, we went
1 through law enforcement in California, and we got everything
2 that was - that they would release. So we went above and
3 beyond the call of duty.
4 We didn't have any of this in our possession. And
5 Mr. Galbraith had these same materials. They were turned
6 over immediately when we got them, which was prior to the
7 recess. Any additional materials that we got during the
8 process were turned over to him as well, including all
9 information from California on this - from Myers' California
10 ties and the NCIC.
11 The army materials, I think - I think Mr. Miller is
12 admitting that those aren't documents that were in our
13 possession. I don't know what access anybody has to army
14 records. I know we turned over what - what we had in our
15 possession that would, in my and Mr. Molloy's opinion, that
16 would bear on Mr. Myers' credibility, bias, impeachment. It
17 could be used for impeachment. And I don't know anything
18 much stronger you could get than what we turned over, that
19 one letter making those statements about - about him. And
20 the court ruled that wasn't - that the defense couldn't
21 delve into that. And I think that was the proper ruling.
22 But be that as it may, we turned it over and they were
23 able to utilize it and had it in time to utilize it.
24 I don't know - don't know where else to go. I mean the
25 bottom line is this is a - these issues that arise under
1 these cases are all issues, all the cases involved were
2 where evidence was in the possession of someone for the
3 government and it was not disclosed or it was suppressed.
4 That didn't happen here. The defense was able to, after
5 they received this information, they were able to to recall
6 both Lawrence Myers and Steve Brannan to the witness stand.
7 They were able to question both of them about Myers' prior
8 relationship with the FBI. They were able to question Myers
9 about certain of his conduct out in California, including a
10 prior conviction which he didn't disclose during his first
11 testimony. And I was looking back through the record very
12 hurriedly, and I know that at day five of the transcript,
13 that Mr. - that Agent Brannan at page 171 was actually asked
14 about if he was familiar with NADIS, and he explained what
15 that was. And as best I can tell from hurriedly reading it,
16 it just - that's about as far as it went on that particular
18 It was also brought up that Myers had furnished the FBI
19 information on prior occasions and about the suitability
20 inquiry. And the Court specifically brought Mr. Galbraith,
21 we went up to the bench and the Court asked Mr. Galbraith,
22 said, you have not inquired as to the reason for the
23 suitability inquiry in depth. Is that a deliberate strategy
24 or an oversight? He said it was an oversight. Came back
25 and he asked - that's at page 178 - he came back and he
1 asked Agent Brannan some questions about the suitability
3 So the court's memory was correct regarding that. It
4 was brought out.
5 I think the bottom line in all of this is, just to try
6 to conclude here, nothing was suppressed, nothing was
7 hidden. The defense was given everything in a timely
8 manner, and as a result of the Court's continuance, if there
9 was some untimeliness on some disclosures as a result of the
10 Court's continuance of seven or eight days or nine days,
11 whatever that ended up being, the defense was able to have
12 that material and utilize it and recall the two witnesses,
13 Myers and Brannan, back to the witness stand.
14 If there has not been a suppression of evidence, then
15 this line of cases is inapplicable. And that's one of the
16 threshold requirements that the defense must show, is that
17 there has been a suppression of evidence.
18 And here there hasn't been.
19 If I could confer with Mr. Molloy just a moment?
20 THE COURT: All right.
21 MR. HATFIELD: I'll try to sit down.
22 (A pause was had in the proceedings)
23 MR. HATFIELD: I think in all, unless the Court
24 has questions.
25 THE COURT: Okay. No, I don't really have any
2 Let me ask you both this, however. Do you have - do you
3 wish to submit anything further in writing in the nature of,
4 Mr. Miller, a reply? I don't think you filed a reply brief,
5 did you?
6 MR. MILLER: I - in our request for hearing, we
7 addressed that. We may have. I would like to so I can give
8 you the Ake cite, because I just did an amicus brief on a
9 related case in the Supreme Court and can't remember the
10 cite off the top of my head. I'm very sorry Judge.
11 THE COURT: You gave me the Ake cite, didn't?
12 MR. MILLER: No, I gave you Perdomo out the Third
14 THE COURT: Perdomo I understood was out of the
15 Second Circuit.
16 MR. MILLER: Third.
17 THE COURT: Okay.
18 MR. MILLER: 1991. Your Honor, I would like to do
19 a response on that. And I would like as the moving party, I
20 guess it's - they get to go to the jury first and last, and
21 it's my motion, I get to go first and last. Very briefly,
22 just a couple things.
23 THE COURT: We're not to going to hear any more
24 argument this morning. I just said if you wish to argue it,
25 argue it any further, I will see a reply brief if you want
1 to. Do you wish additional time to file a reply brief?
2 MR. MILLER: Yes, based on the concessions they
3 made today, I would, Your Honor. I'm wondering if the -
4 today is the 10th.
5 MR. HATFIELD: What concessons?
6 THE COURT: Wait just a minute.
7 MR. MILLER: I am sorry, Your Honor.
8 THE COURT: We're not going to get in any more
9 argument this morning. I understand what you are doing,
10 Mr. Miller. Basically you are trying to entice me to left
11 you argue it further. It won't work.
12 MR. MILLER: Fair enough.
13 THE COURT: If you want to argue anything else --
14 MR. MILLER: Yes.
15 THE COURT: -- you tell me when you could get a
16 brief done. Can you get a brief in by May the 1st?
17 MR. MILLER: Yes, ma'am.
18 THE COURT: Fine. All right. If you have any
19 reply brief that you wish to file you may do so by May 1st.
20 If the government wishes to submit anything additional, you
21 may also do so by May 1st. There will be no further
22 briefing on this issue.
23 I can't give you a ruling today because I want your
24 briefs and because I want a chance to read the Perdomo - you
25 can spell - well, you gave me the cite. I am sorry, the
1 Perdomo case.
2 MR. MILLER: I will spell it for you.
3 THE COURT: That's okay. And the Kyles case,
4 which I have not read, and I want to look at this. And you
5 will have a decision as promptly as I can pull it together.
6 MR. MILLER: Your Honor, one other issue, if I
8 THE COURT: All right.
9 MR. MILLER: All right. We have pending a motion
10 for new trial, et cetera, which is an omnibus motion
11 covering a whole lot of ground. As you may recall from what
12 we had filed, we had wanted certain issues resolved here
13 because, depending on their resolution, depended on how we
14 would further approach that.
15 And what I am wondering is, and I appreciate very much
16 your giving us today's hearing, and I thank you for letting
17 us address this further and for your consideration in it.
18 And it's a housekeeping matter, and I apologize for my
19 ignorance in not knowing whether this is appropriate. I
20 don't mean to step in the wrong direction. But depending on
21 your decision, would we then have an opportunity, because at
22 that hearing now over the last couple weeks we've developed
23 some evidence that doesn't relate to this hearing, it
24 relates to that motion that we would want to present. We're -
25 hopefully we'll develop more testimony; if we get a
1 favorable ruling here, either all or in part, we'll have yet
2 more facts. And part of that decision is a factual matter.
3 And my question to you is, what would you prefer us to do in
4 order to request that hearing more formally? We would ask
5 for it in the pleading papers themselves. In this instance
6 we filed a separate specific pleading addressing just that.
7 Is that what you would prefer? Whatever you want --
8 THE COURT: You may file a motion for a hearing on
9 those other motions if you wish.
10 MR. MILLER: Thank you.
11 THE COURT: What I will do is I will tell you now,
12 I probably won't grant it unless I grant this pending
13 motion, this discovery motion. If I rule in your favor on
14 the discovery motion, I will give you time to update your
15 other briefs on the other motions.
16 Now, if you wish, then you may update those anyway.
17 MR. MILLER: All right. On some --
18 THE COURT: Even if I rule against you on this?
19 Is that what you want?
20 MR. MILLER: Yes, because some of the facts that
21 have come in are factual things that during our
22 investigation we've uncovered that pertain to it, but we
23 didn't want to do it in a piecemeal, little dribbly drab,
24 little dribbly drab, we wanted to do it all at once.
25 THE COURT: Let's wait and see the outcome of this
1 discovery motion.
2 MR. MILLER: Yes, ma'am.
3 THE COURT: I think that makes more sense. And
4 let me just say then that - I am making notes to myself
5 now - that regardless of the discovery ruling, that is the
6 ruling on the discovery motion, I will give you some
7 additional time to file any supplemental brief which you
8 wish to file on your other post-trial motions. If you want
9 a hearing on any or all of those post-trial motions, you
10 should make that motion. Normally, I sent - when I have
11 already tried a case, normally I rule on those only from the
12 pleadings. If you can give me some reason that I should
13 depart from that practice, I will be happy to do that. But
14 you should know it's my normal practice just to look at the
15 pleadings and make the rulings.
16 MR. MILLER: Thank you very much for your
17 courtesy, Your Honor.
18 THE COURT: All right. Anything else from the
19 government? I should say that if I give him time to update
20 his brief, I will give you time to respond accordingly, time
21 to reply.
22 MR. HATFIELD: The only thing -- to update his
23 brief? You mean the one that he's going to file by May 1st?
24 THE COURT: No.
25 MR. HATFIELD: Okay.
1 THE COURT: No, his brief on May 1st is relative
2 to this discovery motion.
3 MR. HATFIELD: Right.
4 THE COURT: After my ruling on the discovery
5 motion, I am going to give him additional time to supplement
6 his other briefs.
7 MR. HATFIELD: Okay. I'm sorry.
8 THE COURT: If he wishes to do so. But if he
9 supplements, you also get a chance supplement your response.
10 And I will give him a chance to supplement his reply.
11 MR. HATFIELD: Okay.
12 THE COURT: That's what I mean.
13 MR. HATFIELD: Okay. I -- I was just concerned
14 about us not being able to respond to anything he's going to
15 file by May 1st. We're having to file them simultaneously,
16 I suppose.
17 THE COURT: Well, it's a reply brief and normally
18 you wouldn't get a chance to respond anyway. So you may
19 file it simultaneously. His would be in the nature of a
20 reply, yours would be in the nature a supplemental summons,
21 if you have anything you want to say.
22 MR. HATFIELD: Thank you, Your Honor.
23 MR. MILLER: Thank you, Your Honor.
24 THE COURT: All right. Mr. Marshal, if you would
25 announce a recess of court until court in course.
1 (A recess was had at 11:18 p.m.)
2 CERTIFICATE OF REPORTER
3 I, Nathan F. Perkins, official court reporter for the
United States District Court, do hereby certify that the
4 foregoing is a true and correct transcript of the proceedings
had in the above-described action.
Nathan F. Perkins Date
Posted April 12, 1999