Ulcenat v. United States

260 A.3d 684

Ulrick ULCENAT, Appellant,

v.UNITED STATES, Appellee.

No. 18-CM-325

District of Columbia Court of Appeals.

Submitted October 2, 2019

Decided October 7, 2021

Montrell L. Scaife was on the brief for appellant.

Jessie K. Liu, United States Attorney, and Elizabeth Trosman, John P. Mannarino, Janani Iyengar, and Michael J. Romano, Assistant United States Attorneys, were on the brief for appellee.

Before Blackburne-Rigsby, Chief Judge, Beckwith, Associate Judge, and Ruiz, Senior Judge.

Beckwith, Associate Judge:

Appellant Ulrick Ulcenat was charged with assault and two counts of misdemeanor sexual abuse¹ following a confrontation with his former girlfriend. In the course of prosecuting Mr. Ulcenat, the government violated its discovery obligations under the Jencks Act,² Super. Ct. Crim. R. 16 (Rule 16 ), and Brady v. Maryland.³ The trial court sanctioned the government for these violations by drawing all inferences against the government as to the complainant's testimony — a sanction that resulted in Mr. Ulcenat's acquittal on the sexual abuse charges, which depended entirely on her testimony. The court convicted Mr. Ulcenat of simple assault based primarily upon a surveillance video that, in the court's view, completely corroborated the complainant's account of that charge. On appeal from his conviction, Mr. Ulcenat argues that the court's sanction for the government's discovery violations was insufficiently punitive. We perceive no abuse of discretion in the trial court's choice of sanction.

I.

Ivory Smith, the complainant and sole government witness in this case, testified on direct examination that Mr. Ulcenat assaulted her in the lobby of her apartment building and, after having convinced her to let him into her apartment, forced her to engage in sexual acts without her consent. The government also introduced video footage of the incident, which showed Mr. Ulcenat carrying and dragging Ms. Smith toward an elevator in the lobby of her apartment building while she tried to get free.

During Ms. Smith's cross-examination, Mr. Ulcenat learned for the first time that Ms. Smith had communicated "[p]lenty of times" with a Metropolitan Police Department detective about MPD's investigation in the case. Ms. Smith revealed through the course of a Jencks inquiry that Detective Timothy Francis had texted her about the case when he "needed information," that she left voicemails for him, and that she emailed him to provide documents pertaining to the case. Mr. Ulcenat, who had requested all discoverable materials more than a year before the start of trial, immediately asked the government to turn over any outstanding Jencks Act material. In response, the government provided (1) an MPD lieutenant's email to Detective Francis informing him that Ms. Smith had called about the case and (2) a screenshot of a cancelled Uber trip to Mr. Ulcenat's address that Ms. Smith sent Detective Francis from her phone.⁴ The government further disclosed that Detective Francis did not have any voicemails or text messages from Ms. Smith on his phone and that, according to the detective, "the voicemails she left were not substantive and only asked the detective to contact her."

In light of these developments, Mr. Ulcenat moved to dismiss all of the charges based on the government's violations of the Jencks Act and Brady v. Maryland . The following week the trial court held a hearing at which Detective Francis testified that he had received voicemails and texts from Ms. Smith and had deleted those communications. He could not remember how many messages he received — he could not say whether there were more than five text messages, for example, but he guessed there was "more than one." He acknowledged in his testimony that he had been trained on the procedures for preserving and disclosing Jencks material, Brady information, and other discoverable evidence.

At another hearing the following week, the government disclosed records from Ms. Smith's cell phone that it had subpoenaed. The records showed that Ms. Smith had sent Detective Francis forty-six text messages and that Detective Francis had sent her fifty-one text messages. Ms. Smith had made sixty-six phone calls to the detective, thirty-nine of which were between ten seconds and one minute long, which the prosecutor said was consistent with a voicemail. The records further showed that Ms. Smith had made thirty-eight calls to other numbers affiliated with MPD, eleven of which were between ten seconds and one minute long. A forensic search of Detective Francis's cell phone revealed only eighteen messages from the detective to Ms. Smith and twelve messages from Ms. Smith to him, the substance of which could not be recovered. The government also turned over ten new emails from the detective's phone that were related to the case. Stating "that it's looking like it was more than just scheduling and there was arguably substance" and noting the large number of text messages and phone calls and the length of the calls, the prosecutor conceded a Jencks violation.

Yet more discovery was provided to Mr. Ulcenat over the following month. This discovery included, among other things, a seventy-two-page police report that included twenty-four pages not previously disclosed. The government also disclosed some redacted phone records from the ten months prior to trial showing eight additional calls that Ms. Smith had made to numbers affiliated with MPD. In addition, the government turned over four emails that a Victim Specialist sent to Ms. Smith about the case and a number of emails among MPD officials regarding Mr. Ulcenat's alleged violation of a stay-away order.

Mr. Ulcenat again moved to dismiss or, in the alternative, to strike Ms. Smith's testimony for violations of the Jencks Act, Brady v. Maryland , and Rule 16.

The trial court ruled that the government violated the Jencks Act, Rule 16, and Brady . The court stated that it was concerned about Detective Francis's failure to preserve his communications with Ms. Smith and noted that his inability to recall the substance of those conversations "points to the exact reason" for preserving them. The trial court further questioned what it characterized as a United States Attorney's Office "policy" of asking only the detective — and not the complainant herself — whether the complainant had discussed the case with the detective. Determining that dismissing the case or striking Ms. Smith's testimony would be "too severe" a sanction, however, the trial court decided to disallow any redirect examination by the government and to "draw all inferences against the [g]overnment" with respect to Ms. Smith's testimony.

The trial resumed, and at the close of the government's case, the trial court granted Mr. Ulcenat's motion for judgment of acquittal as to the two counts of sexual abuse. The court based its ruling on inconsistencies in Ms. Smith's retelling of the confrontation as well as the adverse inference the court drew from that conflicting testimony. The trial court subsequently found Mr. Ulcenat guilty of simple assault, finding that the lobby surveillance footage overcame the effect of the adverse inferences.

II.

When the government violates a discovery rule, the trial court has authority to "fashion an appropriate sanction," Koonce v. District of Columbia , 111 A.3d 1009, 1014 (D.C. 2015), and we review the trial court's choice of sanction for abuse of discretion. Medina v. United States , 61 A.3d 637, 643 (D.C. 2013) (Jencks Act); Wiggins v. United States , 521 A.2d 1146, 1148 (D.C. 1987) ( Rule 16 ); Johnson v. United States , 136 A.3d 74, 85 (D.C. 2016) ( Brady ). In this case, Mr. Ulcenat contends that the adverse-inference sanction the trial court imposed for the government's violation of its discovery obligations was not "sufficiently punitive" under the circumstances.⁵

A. Jencks Act and Rule 16

The Jencks Act provides that, "[a]fter a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement ... of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified." 18 U.S.C. § 3500(b) (2012) ; see also D.C. Super. Ct. Crim. R. 26.2. And under Rule 16, "[u]pon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and ... the item is material to preparing the defense ... [or] the government intends to use the item in its case-in-chief at trial." Super. Ct. Crim. R. 16(a)(1)(E).

A Jencks Act or Rule 16 violation "does not automatically require the imposition of sanctions." McGriff v. United States , 705 A.2d 282, 287 (D.C. 1997) (quoting

Slye v. United States , 602 A.2d 135, 138 (D.C. 1992) ). Both the Jencks Act and Rule 16 give the trial court the discretion to fashion a sanction that "serve[s] the end of justice," and in determining the appropriate sanction the court should consider: "(1) the degree of government negligence or bad faith involved; (2) the importance of the evidence lost; and (3) the evidence of guilt adduced at trial." Koonce , 111 A.3d at 1014 (cleaned up) (quoting United States v. Day , 697 A.2d 31, 35 (D.C. 1997) ); see also Fadul v. District of Columbia , 106 A.3d 1093, 1097 (D.C. 2015).

Mr. Ulcenat argues that the trial court in this case did not take into account the "astounding" degree of negligence on the part of the government. The record suggests otherwise. Although the court did not make an explicit finding that the...