Mastery of Documents
A third disgruntled ex-employee was called to testify regarding an overt act alleged under the conspiracy charge that drums of hazardous waste were loaded aboard a ship for disposal at sea. The indictment alleged that drums of ethylene dibromide were loaded onboard a ship in December, 1984, and disposed of at sea. In response to a specific request by the defense team, the Court ordered the Government to identify its evidence as to that overt act. In response, the Government identified one document and six individuals. The one document identified by the Government, an invoice dated July 16, 1983, described six drums of deionized water (purified drinking water) which was used by the ship in rinsing its tanks. Upon cross-examination with the documents provided by the government during pre-trial discovery, it became eminently clear that the Government’s proof was seriously defective as the ex-employee was not even employed by Baytank in July 1983 (the date of the document). Upon eliciting these facts on cross-examination, the defendants moved that the testimony of the ex-employee be stricken as being in fatal conflict with the indictment and the discovery provided by the government. A portion of the exchange between the district court and counsel demonstrates the problem the defendants faced with this witness:
THE COURT: I have been sitting here for three weeks, this is a two-year enterprise, it has in (sic)engaged the government several different departments of the government and in response to my order I don’t care that you charged them with a continuing enterprise, I told you to disclose the basis of your proof for an incident. And you give them an ‘83 document and the name of somebody who wasn’t employed in ‘83, who does not know anything. You know that’s not beyond a reasonable doubt. That evidence won’t get you anywhere. He doesn’t know anything about the operative events except he thinks he recalls having done it once.
PROSECUTION: With all respect your Honor, that’s a mischaracterization. Those are different drums.
THE COURT: Which drums are which?
PROSECUTION: Well –
THE COURT: And if you know which drums are which, why didn’t you disclose it to the defendants in response to my order? You give them one invoice and a witness.
PROSECUTION: Who agree.
THE COURT: No, you gave them a witness that didn’t know anything about the invoice. Apparently you gave them an ‘83 invoice, the name of a witness who wasn’t even there in ‘83. And then; oh, well, it was a continuing enterprise, could have been any time during the four-year period. The defense motion will be granted.
To be fair, the Government cannot be selective about the witnesses it uses at trial to prove up its case because the Government does not select its fact witnesses; they come with the case. In this particular case, the defense team was extremely fortunate that it had sufficient time to properly and fully investigate the facts and to fully prepare for the cross-examination of the disgruntled ex-employees. Because of the complete investigation and preparation, the deficiencies in the factual recollections elicited by the direct testimony of the ex-employees were exposed.
More later.
As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.
WDJiii