United States District Court
for the District of Massachusetts

UNITED STATES,)

- vs - )               Criminal Docket
  )               #98-10079-REK
JOHN F. SWEENEY, JR.)
Defendant.        )


MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO DISMISS FOR LOSS OR DESTRUCTION
OF AND FAILURE TO PRODUCE EXCULPATORY EVIDENCE


I. FACTS AND PROCEDURAL HISTORY
RELEVANT TO THIS MOTION:

        The Defendant incorporates by reference as if fully set forth, the facts and history set out in the AFFIDAVIT OF LINDA THOMPSON IN SUPPORT OF MOTION FOR RETURN OF PROPERTY AND TO SUPPRESS EVIDENCE AND MOTION TO DISMISS FOR LOSS AND DESTRUCTION OF AND FAILURE TO PRODUCE EXCULPATORY EVIDENCE, filed contemporaneously herewith, together with supporting Exhibits in Support of Motions filed by the Defendant on February 19, 1999 and in Support of the Defendant's Motion to Dismiss for Loss and Destruction of and Failure to Produce Exculpatory Evidence.

II. ARGUMENT

        
The indictment in this cause must be dismissed, because as the facts demonstrate, in this case, the government
        (1) Made knowingly false and misleading statements to the Court and to John Sweeney's attorney claiming that the government had not had control of two semi-trailers full of John and Rhetta Sweeney's personal belongings which were removed from their homes after Marshalls seized the homes on February 27 and 28; AUSA Timothy Feeley and AUSA Sheila Sawyer also falsely claimed that the government had no duty to preserve this property (including the material that on its face would be exculpatory or possibly exculpatory and relevant), when that claim was knowingly false;
        (2) Released the goods to a third-party storage company, when the government had a known duty to preserve all evidence in this case and when there were dozens of boxes of court records, files, computers, computer records, and material that even a simple-minded individual could readily tell might have some value to Mr. Sweeney in this case.
        (3) Falsely claimed that no record of what goods were seized or stored was ever made, when in fact, the government had made a videotape of the inside and outside of both houses on March 1, 1998, the day after John Sweeney was arrested.
        (4) Actively encouraged the moving and storage company to get rid of the goods, when the government knew John Sweeney and his counsel were trying to view them and get them released, by telling the moving and storage company that the goods "had no relevance whatsoever" to this case.
        At Exhibit 5, Excerpts from Transcript of April 20, 1998 hearing in USDC Mass. Crim. Docket #98-10079-REK, United States v. Sweeney, Pages 12-20, page 12, lines 10-12, referring to John McBride's request for access to the exculpatory material in the two semi-trailers, AUSA Timothy Feeley says:
        "Your Honor, the Department of Justice never took possession, control or exercised any dominion or control over those items."
        The government made the same representations in its response to the Defendant's Motion to Preserve Exculpatory Evidence (Docket Entries 23 and 24) and this is reflected in the Court's Order denying the Motion. Not only was this "lack of dominion and control" a knowingly false statement, the only way the US Marshals could not have known that probative, relevant, likely exculpatory and provably exculpatory material, mountains of it, existed, was to selectively and purposefully pretend not to notice it while they were working, searching, and standing in the middle of it, and filming it. This much is evident from the government's videotape that was finally produced the end of January, 1999.
        As shown by a letter of November 9, 1998 from AUSA Sheila Sawyer to William Korman (an associate of Defendant's counsel John McBride), Sheila Sawyer again represented that the government never "seized" (nor had control of) these household goods, which she knew was a false statement.
        This is contradicted by the U.S. Marshals return of service in this case which reads:
"Seizure completed 2/28/98, property turned over to FDIC 3/1/98 11:00 a.m. to John Gilpatrick."
See Exhibits 13 and 14, Returns of Service filed by the US Marshals; see also Exhibit 7, Suffolk County Storage Non-Commercial Storage - Notice of Claim, dated 7/24/98 which states that the goods were left with the storage company by a Deputy U.S. Marshal on March 1, 1998.]
        As shown in the Affidavit of Deputy U.S. Marshal Anthony Visalli, the siege on the Sweeney property began on February 27, 1998, when the Marshals seized several cars, and occupied all the land and the house at 776 Bay Road and its contents. [Affidavit of Anthony Visalli, para. 9]. The U.S. Marshals occupied the Bay Road house until the following day, using the furniture, TV, and telephones and toilets, until the following day, when they also seized the 24 Meyer Lane house by breaking into it, where they found John Sweeney and arrested him at approximately 5:15 p.m.
        In other words, the US Marshal's Service had possession and control of the Bay Road house, its contents, all the grounds, and several cars on the grounds, from February 27, 1998 to March 1, 1998.
        Since it was too dark to videotape anything at by the time Marshals broke into the 24 Meyer Lane house and arrested John Sweeney (5:15 p.m.), the government's videotape could not have been made until (at the earliest) the next day, March 1, since it was made during daylight hours.
        Very plainly (and directly in contradiction of the US Attorneys representation to the Court in this case) the US Marshals did in fact exercise dominion and control over all the personal property within the Bay Road house, and the 14 acres of land surrounding the Bay Road house and the Meyer Lane house, continuously from February 27, 1998 at approximately 9:30 p.m. until at least 11:30 a.m. on March 1, 1998, see also Exhibit 7, Suffolk County Storage Non-Commercial Storage - Notice of Claim, dated 7/24/98 which states that the goods were left with the storage company by a Deputy U.S. Marshal on March 1, 1998.]
        The US Attorney's office had represented to Defendant's counsel and to the court, e.g., see government's response to the Defendant's Motion to Preserve Exculpatory Evidence (Docket Entries 23 and 24) that no inventory of the household goods had been made. This was bolstered by the government's knowingly false assertion that the US Marshals never had dominion and control over the property or contents (household goods).
        Also at the April 20, 1998 hearing, AUSA Timothy Feeley gave the Court and the Defendant's counsel the run-around about who actually had possession of the two semi-trailers full of the Defendant's goods, as can be noted at pages 16-17. Mr. Feeley ultimately agreed to allow Mr. McBride and Mr. Sweeney to view items in the trailers, but in the meantime, the government frustrated those efforts.
        In September, 1998, unbeknownst to the Defendant, AUSA Sheila Sawyer advised the storage company's attorney by letter that she understood the storage company intended to dispose of all the property immediately and that it was "of no relevance whatsoever to the pending criminal contempt case." The US attorney's office did not merely "fail to produce" or "fail to look for" evidence that was in the government's control from February 27, 1998 to March 1, 1998, when it had a clear, known legal duty to preserve this evidence, but it then took the position of "it's out of our hands" for months when it turned the property over to a government-contracted storage company, and then actively promoted the destruction of these goods! [See the September 8, 1998 letter from AUSA Sheila Sawyer to Richard Connors, Exh. 9, appended as an exhibit to the Defendant's Motion to Dismiss for Loss and Destruction of, and Failure to Produce Exculpatory Evidence, and incorporated by reference herein as if fully set forth.]
        AUSA Sheila Sawyer, in a subsequent letter on Nov. 9, 1998 letter [Exh. 10], represented that US Marshal Anthony Visalli had informed her that a videotape inventory that had been made by "an independent contractor" would be forthcoming. Nearly 3 months later, it was produced. From viewing the videotape, it is obvious this was not an inventory videotape (no drawers or cupboards are ever opened, no valuables are viewed up close) but instead, it was a search for incriminating or at least "sensational" evidence against Mr. Sweeney. The cameraman zooms in on a radio, to view the channel it is set to, it zooms in on a pair of field glasses (binoculars) sitting on a sink and then to the adjacent window to capture the "view" the binoculars could have been used to see. As the letter from Sheila Sawyer of Nov. 9, indicates, the government was intent on coming up with some sort of line to claim John Sweeney was "dangerous," when he is not. The cameraman spends an extraordinary amount of time filming radio antennas and wires to the cable TV, radios, and the antennas, and then films two propane tanks that were used to heat the homes fireplaces (as shown by the nozzles above them). Two smoke signals (used by hikers in the woods) were found somewhere in the three-story house and all its belongings. Now, from this, Sheila Sawyer claims John Sweeney had "rigged" up the propane tanks to spray gas. Propane tanks won't "spray" gas, and as the video shows, nothing was "rigged" to the propane tanks whatsoever. However, the cameraman was very obviously hoping to find something, given the time he spent filming wires in the basement. Since the government obviously hoped, as Sheila Sawyer's letter indicates, to use this "evidence" in some manner, whether to inflame the passions of the jury or to try to bulk up the level 4 sentencing level in this case, Sawyer claims the two smoke sticks were seized, however, they have never been produced.
        The government had a duty to preserve the gas tanks and wires and gas nozzles and connections to the fireplaces to show that the claims by Sheila Sawyer in her letter of November 9, were just simply absurd and false.
        In Deputy U.S. Marshal Anthony Visalli's affidavit [Docket Entry #1], at paragraph 12, he claims to have seen a "faxed copy of the February 26, 1998, letter from the U.S. Attorney to John Sweeney's attorney . . . on the counter in the kitchen." As the government's video shows, there were a lot of papers on the kitchen counter, and these papers, including the one Visalli claims to have seen, should have been preserved to show that Visalli simply made this claim up, and what the papers on the counter really were.
        The government removed cameras and videotapes that can be seen at the doorways to the 24 Meyer Lane home and at the 776 Bay Road home on the government's videotape which were filming the Marshals' unlawful breaking and entering and which are clearly exculpatory. These have never been produced. The government also took an audio tape off John Sweeney that was a recording of the days events and it was exculpatory on the issue of his state of mind and the lawlessness of the US Marshals, since the breaking glass and doors can be heard on the audio tape. All of these items are unique and irreplaceable, clearly relevant and clearly exculpatory.
        As can be seen on the videotape, the Sweeneys had 10 years worth of evidence, contemporaneous notes, court files, court records, computers and computer records, faxes and letters to and from persons with information concerning the underlying corruption surrounding this case involving attorneys, judges, and congressmen, much of which was clearly exculpatory on the issue of the underlying lawfulness of the orders in this case, and to impeach probable witnesses. There were also videotapes of the days before the siege that go to the state of mind of the occupants of the property and are definitely exculpatory on the issue of notice and scienter.
         The cameramen making the governments' videotape themselves studiously stay out of the picture, to the point that in one picture, a person can be seen hiding behind a door, while operating the lighting stick for the camera, yet the movers, who were in the process of moving furniture out of the house while the filming took place, were plainly seen on camera. At one point, the person making the film can be seen in a mirror, however, and on information and belief, he is an agent of the government. The persons hiding from the camera are believed to be US Marshals, and at the least to be government employees.
        Until this video tape was mentioned by Sheila Sawyer in November, 1998, the government had represented repeatedly that there was no inventory; [see, e.g., government's response to Defendant's Motion to Preserve Exculpatory Evidence, entry #24]. The government also failed to produce any inventory in response to standard discovery. Sawyer carefully fails to disclose when she or Visalli learned of the existence of the videotape or who filmed it in her letter of November 9, and to this day, the government has yet to disclose this information, yet it is very likely exculpatory because it will show that the government knew this tape existed and kept it back until all of the Sweeney's belongings had been sold for $500.00.
        As can be seen from the Affidavit of James Granitsas [Exh. 6], September 15, 1998, the owner of the storage company to whom the US Marshals released Mr. Sweeney's household goods and all the evidence, Granitsas himself asserts that the US Marshals and FDIC made the videotape. (As also shown by the September 8, 1998 letter mentioned above from AUSA Sawyer to Granitsas' attorney, telling them, in writing, that the government says the property has no relevance whatsoever to this case, the government and Granitsas were in close contact with one another).
        Granitsas' affidavit is appended as Exhibit 6 to the Defendant's Motion to Dismiss for Loss and Destruction of, and Failure to Produce Exculpatory Evidence, and incorporated by reference herein as if fully set forth.
        All of the exculpatory and possibly exculpatory evidence in this case was sold for $500.00 at auction and John Sweeney never got to see it. The U.S. Attorneys office directly and falsely represented it knew nothing about any of this evidence (all the household goods and earthly belongings of the Sweeney family, two three-story houses worth).
        This "lack of knowledge" could only have come from a purposeful ignorance and refusal to do his/her legal job as an AUSA, which requires that the AUSA find out what evidence exists and is known, in this case, to the US Marshals and the FDIC, both of which are government agencies who did in fact have control and possession of all the Sweeneys' property.
         And after learning that the U.S. Marshals had turned this property over to a storage company, the AUSA and the US Marshals continued to have a legal duty to preserve the evidence. Instead, AUSA Sawyer wrote to the lawyer for the persons holding those goods and said the goods had "no relevance to this case" directly encouraging the loss and destruction of these goods. Note that in the same letter Sawyer acknowledges that she knows the moving/storage company is in the process of planning to sell off these goods when she makes this statement. IT was as good as saying, "Yes, please go on and sell them off. We don't care (and you won't be prosecuted).."
        The AUSA clearly knew that John Sweeney's attorney had been mislead by the misrepresentations of the AUSA and that John Sweeney and his attorney were trying desperately to get in to see those goods and had asserted that they contained exculpatory evidence.Sawyer claims not to "know" what goods were exculpatory, but again, she can only not know because she purposely did not ask. However, the duty was hers to ask, and to preserve that evidence.

III. SUPPORTING LAW

        Fundamental error is shown when "the Government's evidentiary suppression 'undermines confidence in the outcome of the trial.'" Kyles v. Whitley, 115 S. Ct. 1555, 1566 (1995).
        A. Brady and Due Process Violations:

        It is well settled that the government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment. Pennsylvania v. Ritchie, 480 U.S. 39 (1987); United States v. Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83, 87 (1963).
        
Under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150, 153-154 (1972), the Due Process Clause is implicated when the government destroys evidence that might have proved favorable to a criminal defendant; see also, United States v. Sepulveda, 15 F.3d 1161, 1178 (1st Cir. 1993), cert. denied, 114 S. Ct. 2714 (1994); see also Fed. R. Crim. P. 16(a)(1)(C) (discovery relating to documents material to defense); 16(c) (continuing duty to disclose).
        The U.S. Supreme Court has developed a two-pronged test that turns upon whether or not the good faith of the government actors involved must be considered in determining whether failure to disclose evidence is a violation of the rights of due process or "what might loosely be called the area of constitutionally guaranteed access to evidence." United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982):
        (1) Clearly Exculpatory Evidence: If the missing evidence is shown to be exculpatory, the Defendant's rights to fundamental fairness under the due process are violated, regardless of the good or bad faith of the state actors involved. Brady v. Maryland, 373 U.S. 83 (1963). Suppression by the prosecution of evidence favorable to an accused violates the Defendant's rights of due process where the evidence has been requested by the accused and is material either to the guilt or punishment irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland (1963), 373 U.S. 83,87 83 S.Ct. 1194,__ 10 L.Ed.2d 215,__).
        In order to mount a successful Brady challenge, a defendant must establish that "the evidence is material, that is, that 'there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' United States v. Bagley, 473 U.S. 667,682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d. 481 (1985)." United States v. Marshall, 109 F.3d 94,97 (1st Cir. 1997).
        Although courts have used different terminologies to define "materiality," the U.S. Supreme Court has determined that evidence is material if there exists a "reasonable probability" that its disclosure to the defense would have changed the result of the trial. Kyles v. Whitley, __ U.S. __, __, 115 S. Ct. 1555, 1566 (1995); United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383 (1985).
A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Pennsylvania v. Ritchie, 480 U.S. -39 (1987). However, this standard does not require the defendant to prove that it is more likely than not that disclosure of the evidence would result in acquittal. Kyles, 115 S. Ct. at 1566. A reasonable probability of a changed result exists where the suppression of evidence "undermines confidence in the outcome of the trial." Id. (quoting Bagley, 473 U.S. at 678, 105 S. Ct. at 3381).
        "The 'missing evidence' must possess an exculpatory value that was apparent before the evidence was destroyed' and must be 'of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (breath alcohol test). Id. at 489, 104 S.Ct. at 2534; see also Femia, 9 F.3d at 993." United States v. Marshall, 109 F.3d 94,97 (1st Cir. 1997) [the preceding citation is to United States v. Femia, 9 F.3d 990 (1st Cir. 1993)].
        Broadening Brady: In United States v. Agurs, 427 U.S. 97 (1976), the U.S. Supreme Court extended its Brady holding to include that the prosecution had a duty to disclose some evidence of an exculpatory nature even though no requests were made for it, but at the same time, rejected the notion that a "prosecutor has a constitutional duty routinely to deliver his entire file to defense counsel." Id. at 111; see also Weatherford v. Bursey, 429 U.S. 545, 559 (1977) and Moore v. Illinois, 408 U.S. 786, 795 (1972) ("We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case").
        (2) Potentially Exculpatory Evidence: If the missing evidence is not provably exculpatory, but is merely potentially useful, the defendant must show bad faith on the part of the police, who, by their conduct, may indicate that the evidence could form a basis for exonerating the defendant, thereby violating due process. Arizona v. Youngblood, 448 U.S. 51, 58, 109 S.Ct. 333, __,102 L.Ed.2d 281,__ (1988). "Under this precedent, the initial burden is on the defendant to show the evidence existed." United States v. Marshall, 109 F.3d 94,97 (1st Cir. 1997). When the government fails to preserve potentially exculpatory evidence, the "good faith/bad faith" question regarding the government actors is dispositive. Arizona v. Youngblood, 448 U.S. 51, 58, 109 S.Ct. 333, __,102 L.Ed.2d 281,__ (1988).
        In reaching this decision, the Supreme Court in Arizona v. Youngblood, observed that when evidence that is merely potentially exculpatory is permanently lost, courts face "the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed." Arizona v. Youngblood, 488 U.S. 51, 58 (1988) citing to and discussing California v. Trombetta, 467 U.S. 479, 486 (1984).
        The case of California v. Trombetta, 467 U.S. 479 (1984) arose out of a drunk driving prosecution in which the State had introduced test results indicating the concentration of alcohol in the blood of two motorists. The defendants sought to suppress the test results on the ground that the State had failed to preserve the breath samples used in the test. The Supreme Court rejected this argument for several reasons: first, "the officers here were acting in "good faith and in accord with their normal practice," id. at 488, quoting Killian v. United States, 368 U.S. 231, 242 (1961); second, in the light of the procedures actually used, the chances that preserved samples would have exculpated the defendants were slim, 467 U.S. at 489; and, third, even if the samples might have shown inaccuracy in the tests, the defendants had "alternative means of demonstrating their innocence." Id. at 490.
        In relying upon Trombetta and several other cited cases for deciding that the issue turned upon the good or bad faith of the state actors involved, the Supreme Court in Arizona v. Youngblood explained that it was unwilling to read the fundamental fairness requirement of the Due Process Clause, see Lisenba v. California, 314 U.S. 219, 236 (1941), as imposing on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.
        The Court concluded that in order to establish a due process violation through the loss or destruction of "potentially useful" evidence (as distinguished from Brady's standard that dealt with "{clearly exculpatory" evidence), the defendant is required to show bad faith on the part of the police, limiting the finding of a due process violation resulting from the loss of merely potentially useful, but not provably exculpatory, evidence to "those cases in which the police themselves, by their conduct, indicate that the evidence could form a basis for exonerating the defendant." Arizona v. Youngblood, 488 U.S. 51 (1988).
        The Sixth Amendment also guarantees the right to effective assistance of counsel in criminal prosecutions. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). There is a narrow category of cases in which prejudice to the defendant's Sixth Amendment right to effective assistance of counsel is presumed. Strickland v. Washington, 466 U.S. 668 (1984). The presumption applies when there has been an "[a]ctual or constructive denial of the assistance of counsel altogether." Strickland, 466 U.S. at 692; see Rauter v. U.S., 871 F.2d 693, 697 (7th Cir. 1989) (denial of counsel at evidentiary hearing held to withdraw guilty plea prejudiced defendant); and when there are "various kinds of state interference with counsel's assistance," Strickland, 466 U.S. at 692. In this case, the misrepresentation and deliberate concealment and then destruction of evidence by the government has prevented John Sweeney's counsel from being able to adequetely prepare his defense and has deprived John Sweeney of exculpatory and possibly exculpatory, relevant and probative evidence, in clear violation of his rights to due process and to adequate assistance of counsel.
        The U.S. Supreme Court has also recognized that prosecutorial misconduct may "so infec[t] the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). To constitute a due process violation, the prosecutorial misconduct must be "of sufficient significance to result in the denial of the defendant's right to a fair trial." United States v. Bagley, 473 U.S. 667, 676 (1985) (quoting United States v. Agurs, 427 U.S. 97, 108 (1976)).
IV. DISMISSAL IS MANDATED IN THIS CASE
        In the normal course of events, a facially valid indictment returned by a duly constituted grand jury calls for a trial on the merits. See Costello v. United States, 350 U.S. 359, 363 (1956); United States v. Rodriguez, 738 F.2d 13, 16 (1st Cir. 1984). Because the public maintains an abiding interest in the administration of criminal justice, dismissing an indictment is an extraordinary step. See United States v. Morrison, 449 U.S. 361, 363-64 (1981). Even when evidence of a constitutional infraction looms, remedies ordinarily "should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests." Id. at 364. Thus, an indictment should not be dismissed with prejudice when other means exist to correct a constitutional breach. See id. at 365; cf. United States v. Hastings, 847 F.2d 920, 928-29 (1st Cir. 1988); U.S. v. Stokes, No. 97-1118 (1st Cir. 8/29/1997).
        To determine a Brady violation, the Court must first determine that a due process violation has occurred by the loss or destruction of evidence that is provably exculpatory to the defendant. If it was clearly exculpatory, then it must also be material and not cumulative. If these conditions are met, then the Court need look no further, the Defendant's rights of due process have been violated.
        If the evidence was not provably exculpatory, but merely potentially useful, it must also be material and not cumulative. If these conditions are met, the Court must determine whether the police acted in bad faith, to determine whether the defendant's due process rights are implicated under the Arizona v. Youngblood standard.
        If the Court finds a due process violation under either standard, because the evidence is missing or destroyed, there is no possibility of a fair trial or of preventing or curing the due process violation in a trial or re-trial. The only remedy is dismissal of the charge against the defendant. This dismissal is not a sanction against the government, rather, it is the preservation of the Defendant's right to fundamental fairness as articulated by the Fifth due process clause and the Sixth Amendment right to present a defense and to confront witnesses, which the Court is bound by law to uphold, pursuant to Article VI, Section 2 of the Constitution of the United States.
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        WHEREFORE JOHN F. SWEENEY, JR respectfully moves this Honorable Court to dismiss this cause on the basis that the government has lost, destroyed, and failed to produce exculpatory evidence and possibly exculpatory evidence that would have been probative, relevant and material and for all other relief just or equitable in the premises.