Barnette v. USA

Filing 61

ORDER for Specific Compliance re 59 Supplemental Memorandum. The U.S. Attorney shall have 30 (thirty) days from entrance of this Order to conduct a final search of trial, probation office, and any related law enforcement f iles for any and all interview statements, documents, recordings, reports, correspondence, etc., previously produced or ordered produced to Petitioners 1998 and 2002 trial counsel; FURTHER ORDERED that upon the conclusion of the ordered search, the U.S. Attorney shall file a document in this Court attesting to the efforts made to comply with the Courts Order issued on Oct. 5, 2012, ECF No. 17. Signed by District Judge Richard Voorhees on 1/7/2014. (eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:12cv327-V
(3:97cr23)
AQUILIA MARCIVICCI BARNETTE, )
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
____________________________________)

ORDER

THIS MATTER is before the Court in response to Petitioner Aquilia Marcivicci
Barnette’s Supplemental Brief, ECF No. 59, filed in support of his Motion for Discovery, ECF
No. 51. Petitioner’s Brief, as well as portions of his Motion for Discovery, is related to
Respondent’s compliance with an Order issued by this Court on October 5, 2012, ECF No. 17.
The instant order addresses only the compliance issues raised in the aforementioned; the Court
will address Petitioner’s other discovery-related requests in a separate order.
PROCEDURAL HISTORY
On January 27, 1998, Petitioner was found guilty after a jury trial of eleven felony
offenses, including three that carried a possible death sentence. Jury Verdict, 3:97cr23, Doc.
289. In a bifurcated penalty phase, the jury recommended a death sentence as to each capital
count. Special Jury Verdict, 3:97cr23, Doc. 309. In an opinion issued May 2, 2000, the Fourth
Circuit Court of Appeals affirmed Petitioner’s convictions but vacated the death sentences
because of a procedural error during the penalty phase. United States v. Barnette, 211 F.3d 803,
825–26 (4th Cir. 2000) (Barnette I).
On remand, following a penalty phase trial before a new jury, Petitioner once again was
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sentenced to death for each capital count. Judgment, 3:97cr23, ECF No. 600. Petitioner’s
sentences ultimately were affirmed by the Fourth Circuit, United States v. Barnette, 644 F.3d
192, 196 (4th Cir. 2011) (Barnette III), and judgment became final on March 29, 2012, when the
Supreme Court denied Petitioner’s petition for a writ of certiorari, Barnette v. United States, 132
S. Ct. 1740 (2012).
In an order dated May 23, 2012, this Court appointed counsel to pursue post-conviction
remedies on behalf of Petitioner. ECF No. 1. On September 17, 2012, the Court conducted a
sealed, ex parte hearing at which Petitioner’s post-conviction counsel and trial counsel Harold
Bender, who had represented Petitioner at his second sentencing and subsequent proceedings,
appeared. During the hearing, “it was confirmed that all of the attorneys who had represented
[Petitioner] in his underlying capital trial and sentencing proceedings . . . had transferred their
case files to Mr. Bender, and that Mr. Bender had been unable to locate any trial counsel files
from the underlying capital case.” Order 1, ECF No. 17. Mr. Bender had been semi-retired and
has since died. On October 5, 2012, the Court ordered the United States Attorney for the
Western District of North Carolina to provide Petitioner’s habeas counsel with a complete copy
of all material previously provided by the U.S. Attorney to Petitioner’s 1998 and 2002 trial
counsel, including all discovery materials and copies of all correspondence between prosecutors
and Petitioner’s prior counsel. ECF No. 17.
In response to the aforementioned Order, the U. S. Attorney provided habeas counsel a
computer diskette containing 3,428 pages of material, an additional sixteen (16) separate
diskettes of audio/video recordings from previous discovery productions, and notice that three
(3) additional audio files of interviews had been duplicated and were available. Mot. to Vacate
9, ECF No. 48. The U.S. Attorney also notified habeas counsel that it had produced all Jencks

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material. 1 Mot. to Vacate, supra, at 9.
On June 19, 2013, Petitioner filed a Motion for Discovery. ECF No. 51. In the Motion,
Petitioner asserted that the U.S. Attorney had failed to comply fully with the Court’s October 5,
2012 Order. Disc. Mot. 8-9, ECF. No. 51. Specifically, Petitioner alleged that the Government
had failed to turn over “witness interview summaries, reports, [or] FBI FD-302s” for the
following sentencing witnesses: Brian Ard, Alesha Chambers, Jasper Chambers, Joanna
Baldwin Coleman, Crystal Dennis, Natasha Heard (Tolbert), Shirley Parker, and Angela Rosser.
Moreover, Petitioner asserted that the Government did not produce any information concerning
its expert witnesses Dr. Scott Duncan, Dr. William Grant, Dr. Park Dietz, and Peter Carlson.
On Sept. 9, 2013, the Government filed a Response opposing the motion for discovery
and arguing that it had fully complied with the Court’s Oct. 5, 2012 Order. Subsequently, the
parties conferred and agreed that the U.S. Attorney’s Office would continue to review its trial
and appellate files in search of discovery materials subject to the Oct. 5, 2012 Order. The parties
further agreed that the U.S. Attorney would have until Oct. 31, 2013 to conduct this review, after
which the parties would report to the Court whether this matter had been resolved.
On November 15, 2013, the U.S. Attorney provided habeas counsel with 165 pages of
additional documents consisting of the following:






Interview with Alicia Chambers2 by ATF S/A Modzelewski (12/30/97)
Letter from associate at Camelot Music in Roanoke, Virginia, to Beth
McCluney at the U.S. Attorney’s Office concerning Renee Worgan and
Shirley Denise Williams, two former co-workers of Petitioner’s.
Personnel file for Shirley Denise Williams
CV of government expert Dr. Scott Duncan
CV of government expert Dr. William Grant

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The Jencks Act requires the government to produce statements made by a witness that relate to the subject matter
of his or her direct examination. 18 U.S.C. § 3500(b); Jencks v. United States, 353 U.S. 657 (1957).
2
Petitioner’s filings spell Ms. Chambers’ first name alternatively as “Alesha” and “Alicia.”

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





Report of government experts Drs. William Grant and Scott Duncan
Fax with accompanying letter from prosecution to defense counsel
concerning government expert Dr. Park Dietz
CV of government expert Dr. Park Dietz
Report government expert Dr. Park Dietz
CV of government expert Peter Carlson

Pet’r’s Supplemental Br. 1-2, ECF No. 59. Petitioner filed a supplemental brief asserting that the
Government’s production pursuant to the Oct. 5, 2012 Order remains deficient. Pet’r’s Br.,
supra, at 2. Petitioner contends that the ATF report of the interview with Alicia Chambers,
which was focused on eliciting information to be used at sentencing, makes it logical to conclude
that the Government conducted interviews of all of the sentencing witnesses, including those
listed in the discovery motion. Additionally, Petitioner asserts that the Government has failed to
produce the Grand Jury testimony of its testifying witnesses. Pet’r’s Br., supra, at 2.
Also missing from the Government’s production, according to Petitioner, are “draft
reports, communications (e.g., letters, emails, etc.) with counsel, raw data, and other materials”
provided to and/or relied upon by the Government’s mental health experts. Pet’r’s Br., supra, at
2. Petitioner contends that the “raw data” relied upon by the Government’s experts includes, but
is not limited to:



Interviews of Tasha Heard, Alicia Chambers, and Kesha Heard conducted
by government experts Drs. William Grant and Scott Duncan, which are
referenced in their report and selectively quoted therefrom.
Interview of Petitioner by government expert Dr. Park Dietz, which is
referenced in his report and selectively quoted therefrom.

Pet’r’s Br., supra, at 3. According to Petitioner, Dr. Dietz notes in his report that “[a] digital
audiotape was produced” from the two day examination, but the Government has not produced
the audiotape. Pet’r’s Br., supra, at 3.
DISCUSSION
As previously noted, this Court’s October 5, 2012 Order required the U.S. Attorney’s
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Office to turn over to Petitioner’s habeas counsel all discovery previously disclosed to
Petitioner’s 1998 and 2002 trial counsel. Order 2, ECF No. 17. Such discovery would include
all witness statements covered by the Jencks Act, 18 U.S.C. § 3500(b); all statements and
documents produced pursuant to the Federal Rules of Criminal Procedure or the Federal Rules of
Evidence; all Brady3 material; and all documents, statements, and/or data ordered by the Court to
be produced to defense counsel. For example, on June 25, 2002, the Court ordered the U.S.
Attorney’s Office to “provide” Defendant Barnette with “[a]ll raw data pertaining to any mental
health test administered to the defendant during the testing by the [Government’s] mental health
experts”; “[a]ll documents pertaining to any mental health or physical examination conducted on
the defendant which the [Government’s] mental health expert relies upon to any extent for his
report”; and “[a]ll tape recordings or transcripts made during the course of the examinations.”
Order, 3:97cr23, ECF No. 546.
The U.S. Attorney has an ongoing obligation to comply with the October 5, 2012 Order.
The Court will not allow this case to drag on indefinitely over disputes regarding the
Government’s compliance, however. The U.S. Attorney will be provided 30 (thirty) days to
conclude a search of trial, probation office, and any related law enforcement files for any and all
interview statements, documents, recordings, reports, correspondence, etc., previously produced
or ordered produced, including but not limited to the items identified in Petitioner’s Motion for
Discovery and Supplemental Brief. At the conclusion of the 30 days, the U.S. Attorney shall file
a document with the Court attesting to the efforts made to comply with the Oct. 5, 2012 Order.
ORDER
IT IS, THEREFORE, ORDERED that the U.S. Attorney shall have 30 (thirty) days
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Brady v. Maryland, 373 U.S. 83 (1963).

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from entrance of this Order to conduct a final search of trial, probation office, and any related
law enforcement files for any and all interview statements, documents, recordings, reports,
correspondence, etc., previously produced or ordered produced to Petitioner’s 1998 and 2002
trial counsel.
IT IS FURTHER ORDERED that upon the conclusion of the ordered search, the U.S.
Attorney shall file a document in this Court attesting to the efforts made to comply with the
Court’s Order issued on Oct. 5, 2012, ECF No. 17.
Signed: January 7, 2014

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