Opinion
NO. 4:07CR00103 JLH.
February 8, 2008
ORDER
On the first day of February, 2008, the Court conducted a hearing on all pending motions. The defendant, Barry J. Jewell, appeared in person and through his attorneys, Samuel A. Perroni and Shelly Hogan. The government appeared through its attorneys, George C. Vena, Karen Whatley, and Robert A. Kemins.
All parties agreed that the motions and orders previously filed under seal in this case need not be sealed. Therefore, the Clerk is directed to unseal all of the matters previously sealed in this case.
Jewell has filed a second motion to produce the signature page of the indictment. By agreement of the parties, the Court has provided to Jewell a copy of the signature page of the indictment with the name of the jury foreman redacted. Therefore, the motion to produce the signature page is denied as moot. Document #36.
Jewell has filed a second motion to produce psychiatric evaluations of government witnesses. The government stated that it has no psychiatric evaluations of any potential witnesses but will provide them along with Brady and Giglio material if it comes into possession of any such evaluations. Therefore, the motion to produce psychiatric evaluations is denied as moot. Document #38.
Jewell has filed a second motion for exculpatory evidence. That motion is granted. Document #39. The government is directed to provide to Jewell any and all Brady and Giglio material no later than 90 days before trial.
Jewell has filed a second motion to produce co-conspirator statements. However, he could not provide the Court with any authority authorizing the Court to order the government to produce those statements. Therefore, the motion is denied. Document #42.
Jewell has filed a second motion for Federal Rule of Criminal Procedure 16(a)(1)(A) and (B) statements. Jewell interprets Rule 16(a)(1)(B) to include "correspondence written by the Defendant; contracts signed by the Defendant; checks signed by the Defendant; memorandums signed by the Defendant; or other writings signed by or initialed by the Defendant. . . ." In its written response, the government stated:
Defendant alleges that certain documents, such as letters, contracts, and checks are statements of the defendant and seeks their discovery. While the government does not concede this expansive and overly broad interpretation of Rule 16(a)(1)(B), the government will make such documents available to the defendant for examination, consistent with its letter of June 25, 2007.
The government's letter of June 25, 2007, invited defense counsel to come to the office of the United States Attorney "to review all discoverable material presently in the government's possession." No such meeting has taken place. It appears from the written and oral arguments of counsel that, while the government is willing to comply with its obligation under Rule 16(a)(1)(E) to permit the defendant to inspect and copy the documents in its possession, Jewell wishes not to invoke the provisions of Rule 16(a)(1)(E) so as not to be required to provide reciprocal discovery under Rule 16(b). Instead, Jewell interprets Rule 16(a)(1)(B) to include as his "statement" anything that bears his signature or initials.
In support of this expansive interpretation of Rule 16(a)(1)(B), Jewell cites two cases. Jewell first cites United States v. Caldwell, 543 F.2d 1333, 1351-53 (D.C. Cir. 1975), cert denied, 423 U.S. 1087, 96 S. Ct. 877, 47 L. Ed. 2d 97 (1975), where the statement at issue was a letter written by the defendant "while he was allegedly in an unresponsive and uncommunicative state in jail" used on cross-examination to contradict a psychiatrist's opinion regarding the insanity defense. Id. at 1351. The court rejected the government's argument that the only statements discoverable as such "are only those made to government agents. . . ." Id. at 1352. The other case cited by Jewell is United States v. Matthews, 20 F.3d 538 (2d Cir. 1994). In Matthews, on cross-examination defense counsel attempted to show that a government witness's testimony against the defendant was "a vindictive figment of unrequited love. . . ." Id. at 549. While still on cross-examination the next day, the defense witness brought and provided to the Assistant United States Attorney a love letter written to her by the defendant. The Assistant United States Attorney withheld the love letter until redirect examination of the witness. On appeal, the court held that the letter was covered by Rule 16(a)(1) and should have been disclosed when the Assistant United States Attorney first became aware of it. Id. at 550.
Accepting these two cases as persuasive authority, the Court still is not convinced that Rule 16(a)(1)(B) is as broad as Jewell argues. If Rule 16(a)(1)(B) required disclosure of every document that a defendant signed or initialed, it could have been easy for the rule-makers to have so stated. Instead, the rule requires disclosure of "statements" without defining the term. Letters are statements, but are checks and contracts? Jewell has cited no authority holding that they are. Viewing Rule 16 as a whole, reading the commentary to the rule and the cases interpreting it, and considering related rules such as 18 U.S.C. § 3500, Fed.R.Crim.P. 26.2, and Fed.R.Evid. 801-807, the Court concludes that checks, contracts, and such documents manifesting orders of payment or promises to perform are not "statements" discoverable under Rule 16(a)(1)(B) but, instead, are documents discoverable under Rule 16(a)(1)(E). On the other hand, any writing or recording in which Jewell has made an assertion of fact or law about a matter that may be at issue at trial is a "statement" discoverable under Rule 16(a)(1)(A) or (B). Rule 16(a)(1)(E) provides that upon a defendant's request the government must permit the defendant to inspect and copy books, papers, documents, data, and the like. The government has offered to permit that inspection and copying, and Jewell has declined, which of course he has the right to do, so as to avoid the obligation to make reciprocal discovery under Rule 16(b)(1)(A). Fair enough. But the Court sees no reason to stretch Rule 16(a)(1)(B) to include items that do not appear to be "statements" under that rule. Jewell can, if he chooses, obtain these items under Rule 16(a)(1)(E). To the extent that the government has "statements" by Jewell as defined herein, those statements must be provided to defense counsel within 30 days of entry of this Order. However, checks and contracts are not "statements." If Jewell wants copies of them, he may seek discovery under Rule 16(a)(1)(E). Thus, Jewell's second motion for Rule 16(a)(1)(A) and (B) statements is granted in part and denied in part. Document #43.
Jewell has filed a request for notice of the government's intention to use evidence that is arguably subject to a motion to suppress. The Court is aware of no authority for such an order. The motion will be denied. Document #44.
Jewell has also filed a motion to compel that duplicates his motion for statements under Rule 16(a)(1)(A) and (B). That motion is denied as moot. Document #48.
Jewell has filed a motion for a bill of particulars seeking three things. First, he requests that the Court order the government to specify the rules of professional conduct to which the indictment refers in paragraph 3 of Count I. That motion is granted. The government must specify which sections of the Arkansas Rules of Professional Conduct are referenced by paragraph 3 of Count I. Jewell also seeks a bill of particulars requiring the government to identify all co-conspirators. That motion also is granted. The government must provide the bill of particulars specifying the portion of the Arkansas Rules of Professional Conduct referenced in paragraph 3 of Count I and all the identities of all co-conspirators referenced in paragraph 8 of Count I within 30 days of the entry of this Order. Jewell also requests a bill of particulars specifying the identity of those persons who are alleged to have aided and abetted him in paragraph 9 of the introduction to Counts II, III, and IV. His argument is that statements by those persons may be admitted against him as co-conspirators. See United States v. Weaver, 565 F.2d 129, 136 n. 9 (8th Cir. 1977). To the extent that any persons have made statements that the government may seek to introduce pursuant to Fed.R.Evid. 801(d)(2)(E), those persons should be identified as co-conspirators. Otherwise, Jewell makes no argument that could justify ordering a bill of particulars on this point. Thus, Jewell's motion for bill of particulars is granted in part and denied in part. Document #52.
Jewell has filed a motion for disclosure of Bobby Keith Moser's presentence report and financial statement. He asks that the Court direct that Moser's presentence report and the accompanying financial statement be provided to him. In the alternative, he asks that the Court conduct an in camera review and release any pertinent exculpatory or impeachment material. One of the cases cited by Jewell on this point is United States v. Molina, 356 F.3d 269 (2d Cir. 2004). In that case the Second Circuit held, "no in camera review of a co-defendant's PSR is required without a threshold showing of a good faith belief that a co-defendant's PSR contains exculpatory evidence not available elsewhere." Id. at 275. See also United States v. Zukowski, 2007 WL 3543396 (D.N.D. Nov. 7, 2007). After careful consideration, the Court is convinced that the approach adopted in Molina and Zukowski is sound. If the Court were to order production of a presentence report or conduct an in camera review to ascertain whether some portion of the presentence report may be useful to defense counsel without requiring the threshold showing of a good faith belief that the presentence report contains exculpatory material not available elsewhere, it would be routine for defense counsel to request presentence reports in cases including defense witnesses who have previously been sentenced, and that could in turn change the presentence report from information ordinarily used only for sentencing to something ordinarily available to defense counsel or potentially so. That change could affect the dynamics that make the presentence report a tool suitable for sentencing purposes and compromise the purpose for which it is intended. Rather than adopt a rule that would make requests for presentence reports an ordinary part of a criminal defense lawyer's discovery requests, it is better, in this judge's view, to follow Molina and require a threshold showing of a good faith belief that a presentence report contains exculpatory information not available elsewhere. Here, Jewell has made no such showing. Accordingly, the Court denies Jewell's motion to produce Bobby Keith Moser's presentence report and financial statement. Document #54.
Finally, Jewell has filed a motion for submission of a jury questionnaire. That motion will be granted. The Court will direct the Clerk's office to send a questionnaire to potential jurors in advance of trial. The Court will not permit questions that unnecessarily intrude into the privacy of the potential jurors or are not reasonably related to juror qualifications and so will not permit questions 23 (asking about jurors' income) or 44 (asking about jurors' political opinions) on the proposed questionnaire. The Court orders that no later than 120 days before trial defense counsel must confer with government counsel regarding the jury questionnaire and, no later than 90 days before trial submit either an agreed questionnaire or, if agreement cannot be reached on some questions, a proposed questionnaire specifying questions the propriety of which is not agreed. If the Court believes that briefs are necessary to resolve any dispute about the jury questionnaire, it will then set a briefing schedule. The motion for submission of a jury questionnaire is therefore granted. Document #56.
The Court is unaware of any issue in the case that would make a juror's political opinions a relevant subject of inquiry during voir dire.
IT IS SO ORDERED.