Split Noted: Must Government Agents Always Preserve Rough Interview Notes When Those Notes Are Incorporated Into a Formal Report?

Per United States v. Colón-Díaz, 2008 WL 787389, *22 n. 8 (1st Cir. Mar. 26, 2008)

Edwin Colón-Díaz was convicted of running a drug business near his small grocery store in a housing project in Puerto Rico. Part of the evidence introduced at trial was the fact that there was nothing on this “grocery store’s” shelves besides police scanners and surveillance cameras. Wanda Romero, a DEA informant, testified that she purchased crack from a dealer who said that the location was owned by Colón-Díaz. She also testified that she had been interviewed by DEA agents more than twenty times. During these interviews, the federal agents made rough notes, showed them to Romero, and she agreed with them.

The Jencks Act requires the government to turn over, upon request, any prior statement of government witnesses relating to their trial testimony. If Romero did agree with those notes, precedent suggests that she then adopted them as her own statement. The District Court found that the notes were Jencks material and asked the government to turn them over. The government informed the court that the notes had been destroyed after a formal interview report was filled out. The question is whether the Jencks Act requires the government to preserve rough interview notes subsequent to the preparation of a formal report.

The First Circuit reviews the Jencks Act violation, if any, in this case for plain error, as Colón-Díaz did not object at trial. The lack of any indication of whether the notes existed, were actually adopted, or what they contained – in addition to the other substantial evidence of Colón-Díaz’s guilt – makes the resolution of the Jencks Act question unnecessary. In the course of so holding, however, the panel notes a circuit split on this issue. Although the panel cites a case for its discussion of the split, that case actually discusses whether government agents are required to preserve rough surveillance (not interview) notes. A brief bit of my own research suggests a different split on the issue of interview notes, with the CAs 2,4,5,6,7,8,10 not requiring preservation and the CAs 3,9,DC so requiring. I do not, however, have the time to confirm this initial research today.

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