The Written Statement, Refreshed Recollection and Trial Testimony

After a jury convicted Lee A. Arrellano of resisting arrest and assault of a peace officer, he appealed, raising a single issue.  Arellano v. State, 2012 WL 4903044 (Texas Court of Appeals 2012).  He claimed the trial judge “erred in ordering him to produce a written statement he prepared on his computer about the events leading to his arrest.”  Arellano v. State, supra.

The issue seem to have arisen as the result of an exchange that occurred at the beginning of the prosecutor’s cross-examination of Arrellano:

Q. Did you make any written statements about what happened that night after this happened?

A. Just from my own recollection.

Q. You didn't write anything down?

A. I wrote down from my own recollection on my laptop.

Q. Did you review that before you came to testify today?

A. I review it quite frequently.

[Prosecutor]: Okay. Judge, I would like a copy of that pursuant to 615.

THE COURT: Okay.

[Defense Counsel]: I was not aware it existed Your Honor. So I know we don't have a copy here.

THE COURT: Okay. Is there any way to obtain a copy before the end of Mr. Arrellano's cross-examination?

[Defense Counsel]: He would have to go home. And his wife is here so --he would have to go home and get it and bring it back. The only way we can do that would be tomorrow morning, Your Honor. Since we're ten minutes to 4 now.

THE COURT: Okay.

[Prosecutor]: I can proceed now and then depending on time, maybe take a break. But I would like him instructed to bring that tomorrow morning.

THE COURT: Okay. Very well then. So instructed then. Please have Mr. Arrellano make a copy of it and bring it in the morning.

Arellano v. State, supra.

The next morning, Arrellano’s lawyer objected “to the production of the statement” for reasons we’ll get to in a moment.  Arellano v. State, supra.  The prosecutor, of course, disagreed, arguing that it should be produced.  Arellano v. State, supra.

After the trial court reserved its ruling on the production of the statement, the prosecutor asked Arrellano if he brought the statement with him to court. 

Arrellano responded that he brought the statement, but he did not read the statement the prior evening. After the trial court ordered the statement to be produced, the prosecutor asked Arrellano when he last reviewed the statement, and Arrellano responded a week before trial. 

Arrellano also stated that he had reviewed the statement may times over the past four years.

Arellano v. State, supra.

As Wikipedia explains, the United States and other countries have rules of evidence which “govern whether, when, how, and for what purpose, proof of a legal case may be placed before a trier of fact [i.e., a judge or a jury] for consideration.” In the Arrellano case, the prosecution argued that the production was required by either or both of two rules of the Texas Rules of Evidence.  Arellano v. State, supra.

One was Texas Rules of Evidence Rule 612, which provides as follows:

If a witness uses a writing to refresh memory for the purpose of testifying, either

(1) while testifying;

(2) before testifying, in civil cases, if the court in its discretion determines it is necessary in the interests of justice; or

(3) before testifying, in criminal cases;

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. 

(The notes of the Advisory Committee that drafted Federal Rule of Evidence 612, which is very similar to the Texas rule, explain that the

purpose of the phrase “for the purpose of testifying” is to safeguard against using the rule as a pretext for wholesale exploration of an opposing party's files and to insure that access is limited only to those writings which may fairly be said in fact to have an impact upon the testimony of the witness.

The Advisory Committee notes also explain that the “purpose of the rule is  . . . to promote the search of credibility and memory.”)

The other was Rule 615 of the Texas Rules of Evidence, which states that

[a]fter a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and defendant's attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.

Texas Rule of Evidence 615(a).

Rule 615 also states that “[i]f the entire contents of the statement relate to the subject matter concerning which the witness has testified, the court shall order that the statement be delivered to the moving party”, i.e., to the prosecutor in this case.  And Rule 615(f) defines a “statement” of a witness as:

(1) a written statement made by the witness that is signed or otherwise adopted or approved by the witness;

(2) a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof; or

(3) a statement, however taken or recorded, or a transcription thereof, made by the witness to a grand jury.

Arrellano’s first argument was that “Rule 612 is not applicable because he did not use his statement to refresh his memory.”  Arellano v. State, supra. The Court of Appeals, though, noted that

Arrellano testified . . . that he had reviewed the statement numerous times in the four years before trial and as recently as a week before trial. Accordingly, the trial court did not abuse its discretion in concluding that Arrellano used the statement to refresh his memory before testifying.

Arellano v. State, supra.

Alternatively, Arrellano argued that

the admissibility of the statement should be governed by Rule 615 and not Rule 612. Arrellano relies on the doctrine of in pari materia, arguing that the two rules pertain to the same subject matter; therefore, Rule 615, which is the more detailed rule, should control over Rule 612, the more general rule.

Arellano v. State, supra.

As Wikipedia explains, the phrase “in pari material”, when used in the context of parsing legislation and court rules, means that “[w]hen a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter.” 

So Arrellano was arguing that in order to understand which rule should properly apply here, the trial judge should have considered the relationship between these two rules and would, had he done this, have found that Rule 615 applied.  The prosecutor argued that this canon of statutory interpretation did not apply here “because Rule 612 and Rule 615 do not have the same purpose and apply in different situations.”  Arellano v. State, supra. 

The Court of Appeals began its analysis of Arrellano’s second argument by noting that

Rule 612 is intended to enable an adverse party to inspect any writing used by a witness to refresh his or her memory for purposes of cross-examining the witness and introducing into evidence those portions of the writing that relate to the testimony of the witness. Texas Rule of Evidence 612. Thus, Rule 612 applies only if a writing is used by a witness to refresh his memory. . . .

The purpose of allowing an adverse party to inspect any writing used by a witness to refresh his or her memory is to test the credibility of the testifying witness or for impeachment. . . .  Similarly, the purpose for requiring the production of a statement under Rule 615 is `for the purpose of impeachment or discovering prior inconsistent statements made by witnesses or possible Brady material. Keith v. State, 916 S.W.2d 602 (Texas Court of Appeals 1996).

Arellano v. State, supra. 

The court also explained that the

key distinction between Rule 612 and Rule 615 is that Rule 612 requires the production of `any writing’ used to refresh a witness's memory, while Rule 615 requires only the production of `statements’ as defined in Rule 615. . . . A writing used to refresh a witness's memory may not meet the definition of `statement’ contained in Rule 615, yet Rule 612 still requires the writing to be produced because of the witness's use of it.

Similarly, a witness may not use a `statement’ to refresh his or her memory before testifying; however, Rule 615 still requires that the statement be produced. See . . . Patterson v. State, 2008 WL 340449 (Texas Court of Appeals 2008) (holding statement not used to refresh a witness's memory was not required to be produced under Rule 612 but was required to be produced under Rule 615). 

Accordingly, although the general purpose for both rules is to provide material which may be used to impeach a witness, the rules are applicable to different types of materials. 

Arellano v. State, supra. 

The Court of Appeals therefore affirmed Arellano’s conviction because it found that

[i]n this case, based on the testimony presented, the trial court could have found Arrellano used the statement he prepared to refresh his memory before testifying at trial; accordingly, the trial court did not abuse its discretion in ordering the statement produced under Rule 612.

Arellano v. State, supra.  

Torture, Public Authority and the Pass Phrase

After pleading guilty to one count of conspiracy, five counts of damage to computer systems, four counts of wire fraud, five counts of access device fraud, and four counts of aggravated identity theft and being sentenced to 20 years in prison, Albert Gonzalez “moved for habeas corpus”.  Gonzalez v. U.S., 2012 WL 5471799 (U.S. District Court for the District of Massachusetts 2012).  

(There were actually two cases, with Gonzalez being sentenced to 20 years in prison by one judge and to 20 years in prison “and one day” by another judge, both sentences to run concurrently. Gonzalez v. U.S., supra.) 

As Wikipedia explains, 28 U.S. Code § 2241 gives federal judges the power to issue “writs of habeas corpus to release prisoners held by any government entity within the country from custody, subject to certain limitations”.  As Wikipedia also explains, habeas corpus is a “writ (legal action) which requires a person under arrest to be brought before a judge or into court” to determine whether the person is being held lawfully. Andas Wikipedia notes, habeas corpus came to the United States from England. 

Gonzalez asserted that he was entitled to habeas corpus relief on any or all of four grounds: 

1) his guilty plea was induced by a promise that his three cases would be heard by the same judge; 2) counsel provided ineffective assistance by not presenting a public authority defense; 3) counsel provided ineffective assistance by failing to file a motion to suppress evidence allegedly obtained through torture; and 4) counsel failed to file a notice of appeal after the petitioner requested such notice be filed.

Gonzalez v. U.S., supra.  We are only concerned with #2 and #3.

As the district court judge explained, 18 U.S. Code § 2255 permits habeas relief

`in four instances, namely, if the petitioner's sentence (1) was imposed in violation of the Constitution, or (2) was imposed by a court that lacked jurisdiction, or (3) exceeded the statutory maximum, or (4) was otherwise subject to collateral attack.’ David v. U.S.,134 F.3d 470 (U.S. Court of Appeals for the 1^st Circuit 1998). . . .The petitioner bears the burden of establishing the need for § 2255 relief, as well as that of showing the need for an evidentiary hearing. . . . Summary dismissal of a § 2255 claim is appropriate when the petition (1) is inadequate on its face, or (2) although facially adequate, is conclusively contradicted as to the alleged facts by the files and records of the case.

Gonzalez v. U.S., supra. 

This is the factual basis for filing a motion to suppress, according to Gonzalez:

Gonzalez alleges the following facts, many of which are disputed. In 2003, following his arrest for access device fraud, Gonzalez became a confidential informant for the U.S. Secret Service. Between 2003 and 2008, he went on to commit a variety of computer crimes, identity thefts, and fraud. Secret Service agents, including his primary handler, Agent Ward, authorized Gonzalez to commit many of these criminal acts as part of different covert operations, including operation `Shadow Ops.’ He claims his crimes were designed to gain the trust and confidence of international cyber-criminals.

In 2007, Secret Service agents worked in concert with the Turkish National Police to arrest one of these international cyber-criminals, Maksym Yastremskiy, in Antalya, Turkey. On July 25, 2007, the police seized a Lamborghini laptop computer belonging to Yastremskiy. Unable to gain access to parts of the laptop, on July 26, 2007, the police in Turkey tortured Yastremskiy until he revealed the pass phrase. The laptop contained encrypted containers ultimately inculpating Gonzalez in Yastremskiy's cyber-crime organization.

Gonzalez v. U.S., supra. 

After Gonzalez was arrested (in 2008?), he asked the Secret Service to call his

handlers to verify he was an active confidential informant. After the agents ignored his claims, Gonzalez says he explained to his attorneys that as an informant, he had been instructed and authorized to engage in the illegal activity for which he was now being prosecuted.

Sometime between May 2008 and early July 2009, Gonzalez further informed his attorneys about the torture of Maksym Yastremskiy. In response . . ., his attorney in New York, Rene Palomino, asked whether Gonzalez's family had money to pay for the investigation expenses of traveling to Turkey to investigate and interview witnesses.  Palomino contacted Gonzalez's mother to ask her if the family had money to pay for the expenses of this trip.

This conversation between Palomino and Ms. Gonzalez took place in the first part of July 2009. After he discovered neither Gonzalez nor his family could pay for an investigatory trip to Turkey, Palomino informed Gonzalez that without an affidavit from Yastremskiy, he could not file a motion to suppress the evidence. . . .

Gonzalez v. U.S., supra. 

In his habeas petition, Gonzalez argued that his

his attorneys provided ineffective assistance of counsel by failing to file a motion to suppress evidence obtained as a result of the TNP's alleged torture of a third party, Maksym Yastremskiy, in Turkey. The government argues Gonzalez lacked standing to file the motion. . . . 

Gonzalez v. U.S., supra. 

In addressing this argument, the district judge who has the case explained that a

defendant generally does not have standing to challenge evidence under the Due Process Clause simply because government misconduct caused conscience-shocking harm to a third party. . . . Instead, the limitations of the Due Process Clause only become relevant if the government activity in question violates some protected right of the defendant, such as the right to a fair trial. . . .

Courts have recognized that a defendant's right to a fair trial could be violated if unreliable evidence, such as a confession, is obtained through coercion of a third party. See, e.g., Buckley v. Fitzsimmons, 20 F.3d 789 (U.S. Court of Appeals for the 7th Circuit 1994) (`Confessions wrung out of their makers may be less reliable than voluntary confessions, so that using one person's coerced confession at another's trial violates his rights under the due process clause.’).

Gonzalez v. U.S., supra. 

Applying this standard, she then explained that Gonzalez

makes no allegations that Yastremskiy's torture led to the recovery of unreliable evidence. Instead, he alleges Yastremskiy's torture yielded an accurate computer password that led to inculpatory information. A defendant cannot prove prejudice without proving a reasonable probability of suppression. See Kimmelman v. Morrison, 477 U.S. 365 (1986). Because he has not proved a reasonable probability of suppression, Gonzalez fails to state a claim for ineffective assistance of counsel.

Gonzalez v. U.S., supra. 

Gonzalez also claimed his attorneys were ineffective “in failing to present a public authority defense.” Gonzalez v. U.S., supra.  Specifically, he argued that “he was a confidential informant and as an informant, Secret Service agents, including his primary handler, Agent Ward, authorized him to commit the relevant criminal acts as part of operation `Shadow Ops.’”  Gonzalez v. U.S., supra. 

The judge noted that the

public authority defense `applies where the conduct of the defendant was undertaken at the behest of a government official with power to authorize the [criminal activity].’ U.S. v. Cao, 471 F.3d 1 (U.S. Court of Appeals for the 1st Circuit 2006). This power must be actual, because the “`”defense” of apparent public authority is . . . . not a defense at all.’” U.S.  v. Holmquist, 36 F.3d 154 (U.S. Court of Appeals for the 1st Circuit 1994).

Gonzalez v. U.S., supra. 

She also noted that the 1^st Circuit Court of Appeals, whose precedents are binding on this court, “has made clear that government agents do not have the power to unilaterally authorize `extraordinary’ criminal activities which involve `severe financial loss to a victim’ without obtaining written approval from the United States Attorney.” Gonzalez v. U.S., supra (quoting U.S. v. Flemmi, 225 F.3d 78 (1st Circuit Court of Appeals 2000).)

The judge then explained that the

government contends Gonzalez caused hundreds of millions of dollars in financial losses from the theft of over 40 million credit and debit card numbers involving companies like TJX and Dave and Buster's. This was not disputed at sentencing. Gonzalez does not claim the United States Attorney ever provided written authorization for the relevant criminal activities.

Moreover, even if agents could have authorized the conduct, Gonzalez's own factual assertions undermine his present allegation that the agents authorized his criminal conduct underlying the crime for which he was sentenced. Before being sentenced in the TJX case, Gonzalez stated, `I'm guilty of not only exploiting computer networks but exploiting personal relationships, particularly one I had with a particular agency who believed in me.’ . . . He also said in his petition that the government did not know of his involvement in Yastremskiy's cybercrime organization. . . [He] can't have it both ways.

Gonzalez v. U.S., supra. 

The judge therefore held that “[b]ecause Gonzalez fails to demonstrate a viable public authority defense, the alleged failure of counsel to present such a defense does not constitute ineffective assistance of counsel.”   Gonzalez v. U.S., supra. 

For these and other reasons, she denied his petition for habeas corpus relief.  Gonzalez v. U.S., supra. 

Voluntary Disclosure of Cell Phone Records and the Motion to Suppress

-->

At some point after he was “indicted for the July 20, 2007 murder of two men who were shot in the head some time after borrowing a car from Lawrence Kidd”, Michael Jason Registe filed a motion to suppress certain phone records.  Registe v. State, __ S.E.__, 2012 WL 5381248 (Georgia Supreme Court 2012).  After the trial court judge denied the motion, Registe “filed an application for an interlocutory appeal,” which the Georgia Supreme Court granted.  Registe v. State, supra.  

The issue he raised in the motion to suppress arose as the result of the following events: 

[The morning after the two men were murdered], [Lawrence] Kidd told police that the victims were going to meet someone named `Mike,’ and Kidd provided Mike's cell phone number. Using this cell number, Detective R. Jackson faxed Cricket Communications, the cell service provider, the following message on July 21, 2007:

`The Columbus [Georgia] Police Dept. is currently investigating a double homicide which occurred at approximately 2130 hours on 07–20–07. We have information that the victim last met with the owner of this phone (706–617–3602) which makes him a suspect at this time. Obviously this suspect presents an immediate danger to any law enforcement officer who may come into contact with this person.’

`We are requesting information as to the owner of this phone as well as any calls to and from this number within a two hour period starting at 8:30 pm to 13:30 pm on 07–20–07 EST. Thank you for your cooperation.’

Registe v. State, supra.  

Cricket Communications responded to the fax on July 22, 2007, with the information Jackson had requested.  Registe v. State, supra.  More precisely, Cricket reported that the “account belonged to `Kareem Penn,’ an alias of Registe.”  Registe v. State, supra.

After cold calling numbers in the phone records provided by Cricket, the police spoke with Michael Brown, who stated he had picked up Registe at a time shortly after the shootings. Brown named others who had information. Combined, these individuals stated they had seen blood on Registe's clothing, and they named the hotel where Registe spent time.

Through persons at the hotel and photo identification by Brown and his acquaintances, `Mike’ was identified as Registe, and, on July 22, 2007, an arrest warrant was issued. On July 24, 2007, the Columbus Police executed a search warrant at an apartment linked to Registe where they found a gun and the cell phone assigned to the phone number at issue in this case.

Later, on September 19, 2007, Columbus Police acquired a court order for the production of documentary evidence from Cricket Communications, specifically the cell phone records of Kareem Penn from July 10, 2007 to July 25, 2007.

Registe v. State, supra.  

Registe filed his motion to suppress the phone records on January 7, 2011, which the trial judge denied.  Registe v. State, supra.  

The Supreme Court began its analysis of Registe’s motion to suppress by noting that the trial judge’s “`findings on disputed facts will be upheld unless clearly erroneous, and its application of the law to undisputed facts is subject to de novo review.’” Registe v. State, supra (quoting Barrett v. State, 289 Ga. 197, 709 S.E.2d 816 (Georgia Supreme Court 2011)).  It then noted that

[a]s an initial matter, telephone billing records are business records owned by the telephone company, not the defendant. As a result, defendants generally lack standing to challenge the release of such records under the 4th Amendment because they do not have a reasonable expectation of privacy in records belonging to someone else. Kesler v. State, 249 Ga. 462, 291 S.E.2d 497 (Georgia Supreme Court 1982).

Accordingly, Registe is not entitled to challenge the release of phone records in this case on 4th Amendment grounds.

Registe v. State, supra.  (For more on why he lacked standing to raise a 4^th Amendment argument, check out this prior post.)

Since he could not rely on the 4^th Amendment, Registe argued that “the release of the cell phone records in this case failed to comply with relevant state and federal statutory provisions.” Registe v. State, supra.  The relevant provision of Georgia law is Georgia Code § 16–11–66.1, which states that:

(a) A law enforcement officer, a prosecuting attorney, or the Attorney General may require the disclosure of stored wire or electronic communications, as well as transactional records pertaining thereto, to the extent and under the procedures and conditions provided for by the laws of the United States.

(b) A provider of electronic communication service or remote computing service shall provide the contents of, and transactional records pertaining to, wire and electronic communications in its possession or reasonably accessible thereto when a requesting law enforcement officer, a prosecuting attorney, or the Attorney General complies with the provisions for access thereto set forth by the laws of the United States.

And, as the Supreme Court explained, the

`laws of the United States’ referenced in the statute [quoted above] include the provisions of 18 U.S. Code § 2701 et seq., which address mandatory or voluntary disclosure of electronic communications records to the government. 18 U.S. Code  § 2702(c)(4) allows the voluntary release of non-content records, including subscriber information, `to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency.’

Registe v. State, supra.  

Registe argued that “in this case, there were no emergency conditions supporting a release of the telephone records.”  Registe v. State, supra.  

The Supreme Court first noted that “the remedy sought by Registe, namely suppression of evidence, is not an available remedy under either Georgia Code § 16–11–66.1 or 18 U.S. Code § 2702(c)(4).  Registe v. State, supra.  It explained that Georgia Code § 16–11–66.1(e) states that “[v]iolation of this Code section shall be punishable as contempt”, which implied suppression was not a remedy for violating state law. Registe v. State, supra.

The court also noted that 18 U.S. Code § 2707 “allows a subscriber [to file a civil action against any party who improperly releases covered records or information”, which means that suppression is not a remedy for violating federal law.  Registe v. State, supra.  

The Supreme Court then pointed out that, notwithstanding the above provisions, Georgia Code § 16-11-67 states that “`[n]o evidence obtained in a manner which violates any of the provisions of this part [regarding wiretapping, eavesdropping, surveillance, and related offenses] shall be admissible in any court of this state except to prove violations of this part.’” Registe v. State, supra.  Registe argued that, “under this provision, the telephone records should have been considered inadmissible.”  Registe v. State, supra.  

The Supreme Court did not buy his argument:

We disagree because the voluntary disclosure of telephone records in this case satisfied the applicable statutes.  Under the facts set forth in the trial court's order, we conclude that Cricket believed in good faith that disclosure of Registe's cell phone records was appropriate.

Here, Cricket received information directly from police that its records could help identify an at-large suspect of a double homicide committed within a day of the request and that the suspect presented a present and immediate danger. This supported Cricket's good faith belief that there was an ongoing emergency, and that belief supported Cricket's voluntary disclosure of its records.

Registe v. State, supra (emphasis in the original). 

The court included two footnotes in the above paragraph, the first of which said that because the disclosure was voluntary, “it is questionable whether Georgia Code § 16–11–66.1 or Georgia Code § 16–11–67 are applicable at all to this case, as the former statute appears to apply only to mandatory disclosures.” Registe v. State, supra (emphasis in the original). 

The second footnote went to whether there was a violation of federal law:

We emphasize that the release of information in this case was voluntary and thereby governed by 18 U.S. Code § 2702(c)(4). Cricket was not compelled to release its records, but it did so in good faith. Had police mandated the release of records and Cricket did not want to voluntarily release them, 18 U.S. Code § 2703 would have required police to provide Cricket with a warrant, court order, or evidence of the subscriber's consent.

Registe v. State, supra (emphasis in the original). 

The Supreme Court therefore held that

the voluntary release of Registe's cell phone records by Cricket to the police complied with the state and federal statutory provisions cited above and precluded suppression of the evidence.  Registe's motion to suppress was properly denied.

Registe v. State, supra.