cannabisnews.com: Conviction Overturned Agent Destroyed Notes!





Conviction Overturned Agent Destroyed Notes!
Posted by FoM on August 25, 1999 at 19:38:38 PT
Source: Sacramento Bee
SAN FRANCISCOA federal appeals court overturned a San Diego drug conviction Wednesday because a federal agent destroyed notes of an interview with an important prosecution witness.
Though the destruction was not malicious, it was intentional and hampered defendant Richard T. Riley's attempt to prove that he was entrapped, said the 9th U.S. Circuit Court of Appeals. The ruling entitles him to a new trial.Riley was sentenced to 2 years and 3 months in federal prison for possessing, with intent to distribute, 125 pounds of marijuana that he bought from undercover agents in 1997.Agents monitored his activities and arranged the sale with the help of James Dufriend, a former friend who cooperated in exchange for leniency. He said Riley had admitted smuggling marijuana in the past and brought up a new smuggling plan, using an experimental airplane, at a 1996 meeting.Riley countered that Dufriend proposed the smuggling and hounded him until he went along, pleading that he was broke and needed money for his wife's brain surgery.A Drug Enforcement Administration agent interviewed Dufriend twice, for several hours, prepared brief summary reports, and destroyed his notes.Dufriend testified that the notes, which the agent had read to him, were accurate, but that the reports did not fully reflect his statements.U.S. District Judge Irma Gonzalez ruled that the destruction of the notes violated the government's duty to provide the defense with all statements of prosecution witnesses. But she rejected a defense request to bar Dufriend's testimony and instead merely told the jury that the notes had been destroyed.The appeals court said federal law requires the trial judge to prevent a witness from testifying, or eliminate the testimony from the record, if an important pretrial statement is not turned over.In this case, the verdict depended on whether the jury believed Riley or Dufriend, and the defense had no way of replacing Dufriend's past statements, the court said.Although Riley may not have been able to prove entrapment, "we simply cannot tell without the notes," said Judge Pamela Rymer in the 3-0 ruling. "This is the Catch-22 caused by the destruction of the notes. But since it was of the government's doing, it must live with the consequences."Assistant U.S. Attorney Richard Cheng declined comment, saying he had not seen the ruling. Defense lawyer Joseph Tavano did not return a telephone message left at his office.The case is U.S. vs. Riley, 98-50339.Pubdate: August 25, 1999Copyright © The Sacramento Bee 
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