Opinion
CR-09-712-PHX-DGC.
September 14, 2010
ORDER
In a case management order dated June 29, 2010, the Court directed the parties to file a joint matrix specifically identifying outstanding discovery issues. Doc. 390 at 1. The filed matrix identifies 17 discovery items. Doc. 523-1. A hearing was held on September 2, 2010. Doc. 539. On the basis of the matrix and discussions at the hearing, and for reasons stated below, the Court rules as follows.
I. Item 1.
II. Item 2.
September 27, 2010. Brady16
The government submitted a copy of ROI #308 at the hearing, and, at the request of Defendants, the Court has reviewed the report in camera. Brady does not require disclosure because ROI #308 is not exculpatory. Rule 16(a)(1) does not apply because ROI #308 contains no "written or recorded statement by the defendant," Fed.R.Crim.P. 16(a)(1)(B)(i), and the oral statement contained therein was not made "in response to interrogation by a person the defendant knew was a government agent," Fed.R.Crim.P. 16(a)(1)(A) and (B)(ii). This Circuit has made clear that "the government need not disclose any voluntary oral statements made by [a defendant]." United States v. Hoffman, 794 F.2d 1429, 1432 (9th Cir. 1986) (emphasis in original). Disclosure of a defendant's "oral statements is not required unless he knew that he was talking to a government agent." Id.
Defense counsel argued at the hearing that the oral statement made by Defendant is a "written" statement for purposes of Rule 16(a)(1)(B)(i) because it is included in the ROI. This argument lacks merit. There is a meaningful difference under Rule 16(a)(1) "between `written' statements and `oral' statements later written down[.]" Hoffman, 794 F.2d at 1432 n. 4. "[T]he government [does] not have to disclose oral statements that officers later summarize[] in their written reports[.]" Id. The discovery request in matrix item 2 is denied.
III. Item 3.
Item 3 requests court review of numerous ROIs under Rule 16(d)(1). Doc. 523-1 a 2. That rule generally provides for the limiting of discovery: "At any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief." Fed.R.Crim.P. 16(d)(1). Defense counsel explained at the hearing that they cite Rule 16(d)(1) to obtain "inspection" of the ROIs by the Court. Defendants assert that good cause exists given the government's refusal to disclose ROI #308. Doc. 523-1 at 2. But Defendants have not shown that the government is improperly withholding ROI #308. The request for court review in matrix item 3 is denied.
Defense counsel stated at the hearing that they have no idea what the ROIs contain, but they could contain information reagrding other confidential informants. Defendants are concerned that disclosure of the ROIs shortly before trial could lead to an unnecessary continuance or prejudice to Defendants. The government avers that it has reviewed the requested ROIs and determined that they need not be disclosed under Rule 16, Henthorn, Giglio, or Brady. Doc. 523-1 at 2. The government stated at the hearing that the ROIs do not concern other confidential informants, and that the only issue is the timing of disclosure under the Jencks Act, 18 U.S.C. § 3500.
Jencks Act statements must be disclosed after the witness has testified on direct examination unless the government consents to earlier disclosure. In order to avoid trial delays in this case, the government has agreed to earlier disclosure. The trial is set to begin on January 11, 2011. The Court orders the government to disclose all Jencks Act statements to Defendants by December 10, 2010.
IV. Item 4.
Item 4 is Defendants' request, pursuant to Rule 16(a)(1)(E)(i), for disclosure of ATF policies concerning informants effective January 2005 through June 2009. Doc. 523-1 at 3. Rule 16(a)(1)(E)(i) requires disclosure of tangible items "if the item is within the government's possession, custody, or control" and "is material to preparing the defense[.]" To obtain disclosure, the defendant "must make a threshold showing of materiality, which requires a presentation of facts which would tend to show that the Government is in possession of information helpful to the defense." United States v. Stevers, 603 F.3d 747, 752 (9th Cir. 2010) (quotation marks and citation omitted).
Defendants assert in the matrix that "[e]ntrapment is a defense in this case and ATF policies are needed because of CI misconduct regarding intimate contact with [Defendant]." Doc. 523-1 at 3. Defendants stated at the hearing that they believe the requested ATF policies are put in place, at least in part, to prevent entrapment. Defendants explained that if the CI were found to have violated those policies, this could be used not only as impeachment evidence, but also to bolster the defense of entrapment by showing that the CI improperly induced Defendants to make incriminating statements. The government counters that the ATF policy manual would not tend to prove or disprove entrapment. The government stated that compliance with the manual clearly does not negate entrapment, and the opposite is also true.
The Court concludes that Defendants have made the required threshold showing of materiality under Rule 16(a)(1)(E)(i). Evidence that the CI's intimate relationship with Defendant violated ATF policy could be used to bolster the defense of entrapment. In short, the requested ATF policies may prove helpful to the defense of entrapment as well as the impeachment of the CI.
The government objects to disclosure on the ground that Defendants have not complied with Department of the Treasury regulations governing service of subpoenas. Doc. 523-1 at 3 (citing 27 C.F.R. § 71.27). Defendants have requested disclosure under Rule 16, not via subpoena. The government does not dispute that the requested ATF policies and are within its "possession, custody, or control." The Court concludes that no subpoena is necessary and that disclosure by the government is required under Rule 16(a)(1)(E)(i). Defendants' request for disclosure in matrix item 4 is granted. The policies shall be disclosed by September 27, 2010.
V. Item 5.
Count one of the indictment, conspiracy to damage buildings and property by means of explosive, contains a special grand jury finding that "Donald Logan and Renita Linyard suffered personal injury as a result of prohibited conduct by defendants." Doc. 476 at 4. Defendants seek, pursuant to Rule 16(a)(1)(E)(i), all medical records of Logan and Linyard for injuries sustained on February 26, 2004. Doc. 523-1 at 4. No disclosure is required under Rule 16(a)(1)(E), the government argues, because it does not possess medical records and intends to proceed at trial on photographs and victim testimony. Id.
This Circuit has held that information is in the possession of the government if the prosecutor "has knowledge of and access to the documents sought by the defendant." United States v. Santiago, 46 F.3d 885, 893 (9th Cir. 1995). "`[T]he scope of the government's obligation' turn[s] on `the extent to which the prosecutor has knowledge of and access to the document.'" Id. at 894 (quoting United States v. Bryan, 868 F.2d 1032, 1036 (9th Cir. 1995)).
The government stated at the hearing that it has never reviewed medical records of Logan and Linyard and does not know which hospitals treated their injuries. The government further stated that it has no better access to the records than Defendants. Defense counsel noted that the government routinely discloses medical records in other cases, but did not dispute the government's stated lack of knowledge and access in this case.
The Court finds that the requested medical records are not within the government's "possession" for purposes of Rule 16(a)(1)(E). See United States v. Sarras, 575 F.3d 1191, 1215 (11th Cir. 2009) (holding that the government was not required to disclose victim medical records in the possession of a county organization). The request for disclosure of medical records in matrix item 5 is denied.
Defendants' reliance on United States v. Stever, 603 F.3d 747 (9th Cir. 2010), is misplaced. The government in that case did not deny that it possessed the requested material. Stever, 603 F.3d at 752.
VI. Item 6.
Item 6 of the matrix concerns transcripts of video and cassette tapes, DVDs, CDs, and wiretap phone calls. Defendants assert that they requested disclosure of "verbatim transcripts intended for jury use" as early as November 2009, that the government has not complied with that request, and that transcripts should be disclosed under Rule 16(a)(1)(E). Doc. 523-1 at 5. The government argues, correctly, that transcripts of audio and video recordings are neither evidence nor material discoverable under Rule 16. Id.; see United States v. Delgado, 357 F.3d 1061, 1070 (9th Cir. 2004) (noting that the recordings themselves are evidence and the transcripts are merely an aid in listening to the recordings). The disclosure request in matrix item 6 is denied to the extent it is brought under Rule 16(a)(1)(E).
Defense counsel explained at the hearing that transcripts in this case will be voluminous and their late disclosure could lead to problems at trial. The government has agreed to use its best efforts to produce transcripts to the defense 30 days before trial and to notify the Court of any potential problems.
Defense counsel also had concerns about the accuracy of transcripts prepared by case agents, requesting that all transcripts be prepared by impartial court reporters or other professional transcribers. For reasons stated at the hearing, that request is denied. See also United States v. Armijo, 5 F.3d 1229, 1234 (9th Cir. 1993) (noting that a federal agent prepared transcripts of tape recordings used at trial).
Defendants' other request, that the Court follow the process set forth in Armijo, is granted. Consistent with Armijo, the following process will apply: (1) the government shall transcribe all recordings and provide transcripts to Defendants by October 22, 2010; (2) by November 12, 2010, Defendants shall review the transcripts for accuracy, highlight alleged inaccuracies, and provide the highlighted portions and any alternative versions to the government; (3) the parties shall engage in good faith efforts to resolve any disputes by November 19, 2010; (4) a hearing will be held on December 10, 2010, at 2:00 p.m. to resolve any outstanding transcript-related disputes; (5) the parties shall submit to the Court the materials necessary to resolve those disputes by December 3, 2010.
VII. Items 7-12.
VIII. Item 13.
Henthorn id. December 10, 2010.
IX. Items 14 and 15.
Item 14 concerns inspection of ATF bomb mockups and "M-80" explosives, while item 15 is the bomb site inspection. Doc. 523-1 at 8. Those inspections occurred on August 30, 2010.
At the hearing, defense counsel stated that they believe additional mockups exist which they have not inspected. The government is required to investigate this issue and disclose any other mockups by September 27, 2010. The parties shall disclose mockups to be used at trial by November 12, 2010.
X. Item 16.
XI. Item 17.
September 27, 2010. October 15, 2010.
DATED this 13th day of September, 2010.