Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona KEITH E. VERCAUTEREN Assistant U.S. Attorney Arizona State Bar No. 013439 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 [email protected] Telephone (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Donald Smith, et al., Defendants. GOVERNMENT'S RESPONSE TO DEFENSE MOTION RE: THE APPROPRIATE TIME FOR DISCLOSURE OF BRADY EVIDENCE No. CR-03-1167-PHX-DGC

The United States of America, by and through counsel undersigned, hereby responds to

16 defendant DONALD SMITH's Motion Re: The Appropriate Time for Disclosure of Brady 17 Evidence. The United States requests that this Court deny the motion as more fully supported 18 by the attached Memorandum of Points and Authorities which are hereby incorporated by 19 reference. 20 21 22 23 24 25 26 27 28 Respectfully submitted this 26th day of August, 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/ Keith E. Vercauteren KEITH E. VERCAUTEREN Assistant United States Attorney

Case 2:03-cr-01167-DGC

Document 793

Filed 08/26/2005

Page 1 of 7

1 2 3 I. Facts

MEMORANDUM OF POINTS AND AUTHORITIES

The Second Superseding Indictment alleges that the defendants were involved in violations

4 of Racketeering Influenced and Corrupt Organizations ("RICO") (Count 1), a RICO conspiracy 5 (Count 2), Violent Crimes in Aid of Racketeering ("VCAR")(Counts 3 - 6), as well as thirty6 seven other substantive offenses. There are confidential sources who are percipient witnesses 7 to many of the acts and crimes alleged in the Second Superseding Indictment. The Government 8 has agreed to produce these witnesses at trial and provide all Brady, Giglio and Jencks Act 9 material. The Government's only objection is as to the issue of timing. The United States has 10 proposed a two week and six week disclosure of the remaining discovery in the case. 11 12 II. Legal Analysis The United States is willing to disclose Brady, Giglio and Jencks Act material two to six

13 weeks before trial. The United States Supreme Court interpreted the Jencks Act and its 14 legislative history long ago. See Palermo v. United States, 360 U.S. 343 (1959). 15 16 17 Palermo, 360 U.S. at 351. 18 19 20 21 We think it consistent with this legislative history, [FN9] and with the generally restrictive terms of the statutory provision, to require that summaries of an oral statement which evidence substantial selection of material, or which were prepared after the interview without the aid of complete notes, and hence rest on the memory of the agent, are not to be produced. Neither, of course, are statements which contain the agent's interpretations or impressions. The purpose of the Act, its fair reading and its overwhelming legislative history compel us to hold that statements of a government witness made to an agent of the Government which cannot be produced under the terms of 18 U.S.C. § 3500, 18 U.S.C.A. § 3500, cannot be produced at all.

22 Palermo, 360 U.S. at 352-353. The United States Supreme Court continued and stated, "Thus 23 the Government will not produce documents clearly beyond the reach of the statute," meaning 24 18 U.S.C. § 3500. Palermo, 360 U.S. at 354. 25 26 The Act's major concern is with limiting and regulating defense access to government papers, and it is designed to deny such access to those statements which do not satisfy the requirements of (e), or do not relate to the subject matter of the witness' testimony.

27 Palermo, 360 U.S. at 354. 28
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The suggestion that the detailed statutory procedures restrict only the production of the type of statement described in subsection (e), leaving all other statements, e.g., nonverbatim, non-contemporaneous records of oral statements, to be produced under preexisting rules of procedure as if the statute had not been passed at all, flouts the whole history and purpose of the enactment. It would mock Congress to attribute to it an intention to surround the production of the carefully restricted and most trustworthy class of statements with detailed procedural safeguards, while allowing more dubious and less reliable documents a more favored legal status, free from safeguards in the tournament of trials.

6 Palermo, 360 U.S. at 349-350. Clearly, the United States Supreme Court has held in Palermo 7 that reports of agents that are not considered Jencks Act "statements" are not to be discoverable 8 to the defense. 9 In the case now before this Court, one issue is the interpretation of the Federal Rules of

10 Criminal Procedure, Rule 16(a)(1)(E), and how that rule should be read in conjunction with Rule 11 16(a)(2). A case that discussed this issue in great detail, including an in depth analysis of the 12 legislative intent is United States v. Rudolph, 224 F.R.D. 503 (N.D. Alabama, Southern Division 13 2004). Rudolph held that Rule 16(a)(1)(E) should not require government disclosure of 14 documents and objects falling under Rule 16(a)(2)'s protection: i.e., "reports, memoranda, or 15 other internal government documents made by an attorney for the government or other 16 government agent in connection with investigating or prosecuting the case." Rudolph, 224 17 F.R.D. at 511. 18 Amendments were made to Rule 16 in 2002. Rule 16(a)(1)(E) was renumbered and was

19 previously Rule 16(a)(1)(C). Rule 16(a)(2), before the 2002 amendments, began with these 20 words: "Except as provided in paragraphs (A), (B), (D), and (E) of subdivision (a)(1)...." "The 21 omission of sub-paragraph 16(a)(1)(C) from this clause plainly indicated that a defendant's right 22 to compel pre-trial disclosure of the items described in Rule 16(a)(1)(C) was limited by Rule 23 16(a)(2)." Rudolph, 224 F.R.D. at 509. 24 25 26 The Advisory Committee stated in its report to the Judicial Conference that "the Committee attempted to avoid any unforeseen substantive changes and attempted in the Committee Notes to clearly state when the Committee was making a change in practice." 207 F.R.D. at 357. [FN21] Rule 16 was listed among the rules that "were completely reorganized to make them easier to read and apply." Id.

27 Rudolph, 224 F.R.D. at 510. 28
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Further, the Advisory Committee's note to Rule 16 states, in pertinent part, that: The language of Rule 16 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. 207 F.R.D. at 350 (emphasis supplied).

4 Rudolph, 224 F.R.D. at 510. 5 6 7 8 9 10 This is persuasive evidence that the Advisory Committee, Judicial Conference, Supreme Court, and Congress intended to effect only "stylistic changes" to Rule 16(a)(2). Defendant's "plain reading" of the language of Rule 16(a)(2) produces much more than stylistic changes. If this court were to adopt defendant's strict construction of the amended Rule, a future defendant could compel pre-trial disclosure of not only rough notes of government agents, but all those items that fall within the wider net of government "work product" generated in connection with the investigation and prosecution of persons who are accused of committing federal criminal offenses. That would be contrary to the Eleventh Circuit's holding in Jordan, and the Supreme Court's opinion in Armstrong, among many others. Defendant's interpretation of Rule 16(a)(2), while perhaps literally correct, turns the stated purpose of the Advisory Committee and Congress on its head.

11 Rudolph, 224 F.R.D. at 510. 12 The Ninth Circuit has held that where an informant will testify at trial, a defendant is not

13 entitled to have the informant produced in advance of trial. United States v. Bonilla, 615 F.2d 14 1262 (9th Cir. 1980). The Government has communicated to the defense that it would present 15 at trial the testimony of the confidential sources who were percipient witnesses to the offenses 16 charged. The Government does contemplate the appearance at trial of the confidential sources, 17 at which point the defendants will have the opportunity to confront, examine and bolster their 18 defense through him/her. The identity of such persons, as well as the substance of their 19 testimony, will be disclosed to the defense no later than two to six weeks before trial. To require 20 otherwise would vitiate the protections afforded to Government witnesses by the Jencks Act, 18 21 U.S.C. Section 3500, and Rule 16, Fed. R. Crim. P. See United States v. Thompson, 493 F.2d 22 305, 309 (9th Cir. 1974) (the Government's refusal to identify its witnesses to the defendant was 23 "consistent with the lack of any requirement to disclose the identities of Government witnesses 24 prior to trial" in rule or statute). The percipient witnesses in this case should be afforded the 25 same treatment and protection as all other Government witnesses. 26 The Government's disclosure, at least two to six weeks before trial, of any potential

27 impeachment material regarding its confidential sources will prevent all prejudice to the 28 defendants, substantial or otherwise, in preparing the defense in this trial. The Government's
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1 proposed disclosure satisfies the Brady requirement that evidence favorable to the defendant 2 shall be made known to the defense in time to allow for effective use of that information. United 3 States v. Rinn, 586 F.2d 113, 119 (9th Cir. 1978). In Rinn, the Ninth Circuit held that information 4 merely going to the credibility of the government witness need not be disclosed prior to the 5 witness testifying. Brady material which merely impeaches the credibility of a government 6 witness can properly be disclosed on the day that witness testifies. United States v. Higgs, 713 7 F.2d 39, 44 (3rd Cir. 1983). Finally, impeachment Brady material disclosed on the day before 8 trial does not deprive the defendant of a fair trial or due process, as nothing in Brady requires 9 pretrial disclosure material which might impeach Government witnesses. United States v. Allain, 10 671 F.2d 248, 255 (7th Cir. 1982). 11 The United States proposes to give the majority of the Jencks material six weeks before trial,

12 with some additional Jencks material two weeks before trial. The United States believes this will 13 take care of the Court's concern to permit full preparation by the defendants and to avoid last 14 minute trial delays. Although the defendants are entitled to impeachment and exculpatory 15 material, "the defense has no right to pretrial discovery of information regarding informants and 16 prospective government witnesses." United States v. Jones, 612 F.2d 453, 454 (9th Cir. 1979). 17 The Jencks Act, 18 U.S.C. Section 3500, only requires the disclosure of government witness' 18 or prospective witness' statements, "after a witness called by the United States has testified on 19 direct examination." When Brady material is also covered by the Jencks Act, the terms of the 20 Jencks Act govern the timing of the government's disclosure, that is, after a witness testifies on 21 direct examination. Jones, 612 F.2d at 455. 22 The defense has requested the disclosure of many items of impeachment, statements, or

23 identity information pertaining to the Government's confidential sources. As such, the requested 24 information or material is not discoverable prior to trial. Disclosure of all of the items requested 25 by the defense implicitly would necessitate the disclosure of the identity of the confidential 26 sources. This information is not discoverable prior to trial in the interest of protecting 27 government witnesses as previously discussed. Jones, 612 F.2d at 455. To require early 28 disclosure would place the confidential sources in danger of harassment and even physical harm,
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1 and would defeat the purpose of both the Jencks Act and Rule 16. The law is clear that the 2 defense is not entitled to have the informant produced in advance of trial. United States v. 3 Taren-Palma, 1997 F.2d 525 (9th Cir. 1993), and Bonilla, 615 F.2d at 1264. 4 Defendants claim that they do not trust the United States or its interpretation of Brady,

5 Giglio or Jencks material. The United States has no problem with turning the two week and six 6 week material over to the Court for an independent, in-camera inspection. Additionally, the 7 United States believes the defendants have some of the transcripts that are referenced in the six 8 week disclosure section. Those transcripts will be produced with other Jencks material, and are 9 approximately 500 pages. Thus, if the defendants have these transcripts, the six week disclosure 10 will actually be less than 1000 pages. 11 For all the foregoing reasons, the Government respectfully requests that the Court deny the

12 defendant's Motion in its entirety and follow the proposed two week and six week disclosure as 13 set forth by the United States. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted this 26th day of August, 2005.

PAUL K. CHARLTON United States Attorney District of Arizona s/ Keith E. Vercauteren KEITH E. VERCAUTEREN Assistant United States Attorney

1 I hereby certify that on August 26, 2005, I electronically transmitted the attached 2 document to the Clerk's Office using the CM/ECF system for filing and 3 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 4 Joseph E. Abodeely, [email protected], [email protected] 5 David Zeltner Chesnoff, [email protected] 6 Carmen Lynne Fischer, [email protected], [email protected] 7 Patricia Ann Gitre, [email protected], [email protected] 8 Alan Richard Hock, [email protected] 9 Thomas M Hoidal, [email protected], [email protected] 10 Barbara Lynn Hull, [email protected] 11 12 David M Ochoa, [email protected] 13 Jose S Padilla, [email protected], [email protected] 14 Mark A Paige, [email protected] 15 James Sun Park, [email protected], [email protected],[email protected] 16 C Kenneth Ray, II, [email protected] 17 Brian Fredrick Russo, [email protected], [email protected] 18 Michael Shay Ryan, [email protected], [email protected] 19 Philip A Seplow, [email protected], [email protected] 20 Robert Storrs, [email protected], [email protected] 21 s/ Keith E. Vercauteren 22 KEITH E. VERCAUTEREN 23 24 25 26 27 28
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