Free Order on Motion for Disclosure - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, vs. Robert Johnston, et al.,

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CR-03-1167-PHX-DGC ORDER

Pursuant to the Court's July 13, 2005 order, the parties have filed briefs regarding the materiality of the items requested by Defendants under Rule 16(a)(1)(E)(i), the appropriateness of a protective order under Rule 16(d)(1), and the timing of the disclosure of Brady material and Jencks Act statements. Docs. ##750, 779, 781-82, 793, 803-05. This order will address the issues raised in the parties' briefs as well as Defendants' motions for the disclosure of grand jury transcripts and request for evidentiary hearing regarding wiretap evidence. Docs. ##653, 742, 744. I. Materiality Under Federal Rule of Criminal Procedure 16(a)(1)(E)(i). A. The Required Prima Facie Showing of Materiality.

To obtain discovery under Rule 16(a)(1)(E)(i), Defendants "must make a prima facie showing of materiality." United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990). Defendants "must present facts which would tend to show that the Government is in possession of information helpful to the defense." Id. Information is helpful to the defense
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if it "`will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.'" United States v. Liquid Sugars, Inc., 158 F.R.D. 466, 471 (E.D. Cal. 1994) (citations omitted); see United States v. Bergonzi, 216 F.R.D. 487, 501 (N.D. Cal. 2003) (quoting Liquid Sugars). B. Information Regarding Confidential Informants: Matrix Items 14-40.

Defendants seek information regarding three individuals who Defendants contend are confidential informants in this case: Rudolph Kramer (CI-790), James Blankenship (CI-604), and Michael Kramer (CI-376). Doc. #779, Ex. 1. Defendants have requested specific items contained in the "informant files" of these individuals, including prior criminal records, plea agreements and transcripts of such agreements, criminal judgments and sentences, contracts with the Government and any known violations of such contracts, and benefits promised to or received by the individuals. Id. at 7, Ex. 1. The Government agrees that the specific items requested are material and must be disclosed under Rule 16(a)(1)(E)(i), but the Government argues that a more general request for all contents of the informant files is too broad and conclusory to support a finding of materiality. Doc. #805 at 1, 3-4. The Court agrees. The factual showing of materiality must be made with respect to specific documents Defendants seek to discover. "A general description of the materials sought or a conclusory argument as to their materiality is insufficient." United States v. Cadet, 727 F.2d 1453, 1468 (9th Cir. 1984); see Mandel, 914 F.2d at 1219 ("Neither a general description of the information sought nor conclusory allegations of materiality suffice[.]"); United States v. Santiago, 46 F.3d 885, 894-95 (9th Cir. 1995) (stating that it is insufficient to assert conclusory allegations regarding credibility and that a grounding in fact is required). Defendants have made a prima facie showing of materiality only with respect to the documents specifically identified in items 14 through 40. C. Operation Dequiallo.

Defendants have requested reports, surveillance logs and recordings, and search warrant materials from an ATF investigation code-named "Operation Dequiallo." Doc. #779, Ex. A. Defendants state that Operation Dequiallo was an investigation of the
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HAMC that spanned five states, including Arizona, and that included the investigation of the Cynthia Garcia murder at issue in this case. Id. Ex. 1, n.1. Defendants further state that the Government utilized Michael Kramer for most of the surveillance recordings made during Operation Dequiallo and that Kramer recorded numerous HAMC contacts as well as his own activities, which included criminal conduct. Id. at 14. Defendants argue that while the Government has selectively disclosed reports, logs, and recordings that it believes will support the charges in this case, it has not disclosed other items that (1) disclose the criminal activities of the informants, (2) show a lack of nexus between alleged criminal acts captured by the informants, and (3) show a lack of continuity of criminal activity by HAMC members. Id. at 24. Defendants further argue that the Government has withheld search warrant materials that can be used to impeach Michael Kramer. Id. at 7-8, 15, 26-28. 1. Reports and Surveillance Logs: Matrix Items 50, 52, 56, 59-64, 66-68, 70, 72, 75-76, 78-85, 87-92, 97-119, 121, 125, 127-182.

The Government does not dispute that Defendants have presented facts tending to show that the requested reports and surveillance logs would be helpful to the defense. Doc. #805 at 4-5. The Government nonetheless argues that these items are not material under Rule 16(a)(1)(E)(i) because they are precluded from discovery under Rule 16(a)(2). Doc. #805 at 4. Specifically, the Government relies on Liquid Sugars for the proposition that "material information" includes "information, not otherwise provided for or precluded by discovery rules, which is significantly helpful to an understanding of important inculpatory or exculpatory evidence." 158 F.R.D. at 471 (emphasis added). Because the requested information is precluded from discovery by Rule 16(a)(2), the Government argues, it cannot be "material" for purposes of Rule 16(a)(1)(E)(i). The Court disagrees. The relevant portion of Rule 16(a)(2) reads as follows: "Except as Rule 16(a)(1) provides otherwise, this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the
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case." Fed. R. Crim. P. 16(a)(2) (emphasis added). The italicized language plainly exempts items covered by Rule 16(a)(1), including Rule 16(a)(1)(E)(i), from the protection of Rule 16(a)(2). See United States v. Vallee, 380 F. Supp. 2d 11, 14 (D. Mass. 2005). Thus, if Defendants make the required showing of materiality under Rule 16(a)(1)(E)(i), those documents are not rendered non-material by Rule 16(a)(2). The Government cites United States v. Rudolph, 224 F.R.D. 503 (N.D. Ala. 2004), for the proposition that Rule 16(a)(2) contains a drafting error, that the language of the rule cannot be given its plain meaning, and that the provision should be read to trump discovery otherwise permitted by Rule 16(a)(1)(E)(i). Courts should be reluctant to venture into the hazardous business of rewriting rules on the basis of perceived drafting errors. The Advisory Committee on the Federal Rules of Criminal Procedure, the Supreme Court, and Congress have ample opportunity to correct drafting errors, and the task should be left to them when the existing rules are clear. This Court finds the opening clause of Rule 16(a)(2) to be unambiguous and concludes that it should not be rewritten under the "scrivener's error exception" applied in Rudolph. Defendants have made a prima facie showing of materiality under Rule 16(a)(1)(E)(i) with respect to the requested reports and logs. See Bergonzi, 216 F.R.D. at 502; Vallee, 380 F. Supp. 2d at 14. The Government's reliance on Palmero v. United States, 360 U.S. 343 (1959), is unpersuasive because Palmero involved the Jenks Act, not Rule 16 in its current form. The disclosure obligations of Rule 16(a)(1)(E)(i) were added in 1974, some 15 years after Palmero was decided. See Rule 16 Adv. Comm. Notes (1974 Am.). Palmero says nothing about the Government's obligations under that rule and the Government has cited no authority to suggest that the language quoted from Palmero has current application. 2. Surveillance Recordings: Matrix Items 187-92, 194-213, 221-52, 255, 257-69.

The Government addresses the requested surveillance recordings on a statement-bystatement basis. Doc. #805 at 5-6. The Government agrees that it must produce Defendants' recorded statements under Rule 16(a)(1)(B). Id. at 5.
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The Government further agrees that the recorded statements of Michael Kramer are material under Rule 16(a)(1)(E)(i), but argues that these statements are not discoverable because they constitute Jencks Act statements. Id. at 5-6. As the Court explained in its May 23, 2005 discovery order, however, the Jencks Act "narrowly defines `statements' as (1) writings made by the witness and `signed or otherwise approved or adopted' by him, or (2) accounts which are `a substantially verbatim recital' of the witness's oral statements `recorded contemporaneously with the making of such oral statement.'" Doc. #702 at 9 (citing United States v. Griffin, 659 F.2d 932, 936 (9th Cir. 1981) (quoting 18 U.S.C. § 3500(e)(1)-(2)). Conversations recorded by confidential informants or undercover agents during an investigation do not constitute statements under the Jencks Act. Id. (citing 18 U.S.C. § 3500(e); United States v. Bobadilla-Lopez, 954 F.2d 519, 522 (9th Cir. 1992); United States v. Sopher, 362 F.2d 523, 525 (7th Cir. 1966); United States v. Skillman, 442 F.2d 542, 553-54 (8th Cir. 1971)). The Jencks Act governs the disclosure of Kramer's recorded statements only to the extent they are recitals of past occurrences. To the extent the statements were made during recorded conversations with Defendants or other individuals, they are not covered by the Act. The Government further argues that Defendants have not shown that statements made by other individuals on the recordings would be helpful to the defense, "save perhaps for impeachment of Michael Kramer." Doc. #805 at 5-6. The Government concludes that these statements of other individuals are not material because Defendants have not made a "particularized showing of how Kramer's statements would be impeached by the statements of any other person who was recorded." Id. at 6 (citing Santiago, 46 F.3d at 894-95). Defendants seek the recordings not just to impeach Kramer's specific statements, but to impeach his competence and credibility as a witness. Defendants have presented facts suggesting that during Operation Dequiallo Kramer made unauthorized drug buys, used illegal drugs, and committed violent acts that were captured by the recording device worn by Kramer. Doc. #779 at 14-21. The statements made by other individuals on the recordings may be helpful to Defendants by "play[ing] an important role in uncovering admissible
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evidence . . . or assisting impeachment or rebuttal.'" Liquid Sugars, 158 F.R.D. at 471; see Bergonzi, 216 F.R.D. at 501-02 (stating that "[t]he materiality requirement . . . is not a `heavy burden'"). Defendants have thus made a prima facie showing of materiality with respect to all of the statements on requested the recordings. 3. Search Warrant Materials: Matrix Item 460.

The Government does not dispute that the requested search warrants and related items are material because they may be used to impeach Michael Kramer. Doc. #805 at 6. Rather, the Government argues in conclusory fashion that "Kramer's statements are discoverable by operation of the Jencks Act, and not Rule 16(a)(1)(E)(i)." Id. To the extent the search warrant materials do not fit within the narrow definition of a "statement" under the Jencks Act, they are governed by Rule 16, not the Act. The Government shall confirm at the eleventh case management conference that it has appropriately applied the narrow definition of a Jencks Act statement to the requested search warrant materials. II. The Government's Ex Parte Application to Defer Discovery. In its July 13, 2005 order, the Court permitted the Government to file a fact-specific ex parte application for protective order under Rule 16(d)(1). Doc. #750 at 6. The Court stated that if the Government filed such an application, it should also file a public application that provides a general description of the information submitted ex parte. Id. The Court further stated that if it finds that Defendants have made a prima facie showing of materiality with respect to a particular matrix item, as it has above, it will decide whether a protective order should be entered under Rule 16(d)(1) with respect to that item. Id. at 7. The Government has filed an ex parte application under Rule 16(d)(1) and a public notice of the filing. Docs. ##780-81. The Government seeks a protective order permitting it to defer the disclosure of the following specific matrix items: 10-22, 24-26, 28-30, 34, 38, 39, 183, 366, 438-441, 456, 461-62, and 470-71. Doc. #781. This list does not include all of the items as to which Defendants have made a prima facie showing under Rule 16(a)(1)(E)(i) as discussed above. If not already produced, the Government promptly shall produce to Defendants all matrix items for which the prima facie showing has been
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made and as to which the Government does not seek a protective order. Having reviewed the Government's application and Defendant Donald Smith's response (Doc. #803), the Court concludes that the Government has shown good cause to defer disclosure of some items under Rule 16(d)(1). The Court notes that the issue to be decided is not whether the materials should be disclosed at all ­ the Government has agreed to disclose them. The issue is whether the materials should be disclosed now or nearer to trial on a schedule to be established by the Court. This situation is different from that addressed in cases where no disclosure was made. See Roviaro v. United States, 353 U.S. 56 (1957); United States v. Ordonez, 737 F.2d 793, 807-808 (9th Cir. 1984); United States v. Pelton, 578 F.2d 701, 706-707 (8th Cir. 1978). Because the materials at issue in this case will in all events be disclosed sufficiently in advance of trial to permit their use by Defendants, the question today is whether the potential prejudice suffered by Defendants from a postponement of disclosure outweighs the interests of the Government in protecting confidential informants. For reasons to be explained in more detail in a sealed order, the Court concludes that the Government has made a sufficient showing of risk to confidential informants to justify postponement of disclosure until nearer to trial. The Court will address each of the matrix items for which the Government seeks a protective order. See Doc. #780. Item 10: The Government will be permitted to redact names from these documents. Unredacted copies of the documents will be disclosed to Defendants before trial on the schedule to be established by the Court. Item 11: The Government asserts that these materials are covered by the Jencks Act. The Government may postpone disclosure only of "statements" within the narrow definition of the Jencks Act as discussed in part III of this order. Item 12: The Government produced this item on July 1, 2005. Items 13-22, 24-26, 28-30, 34, 38-39, 183, 366, 438-41, 456, 461-62, 470-71: These items are subject to the Court's protective order. The documents shall be produced before trial on a schedule to be established by the Court.
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III.

Timing of Disclosures. The Government has filed a notice listing the Brady/Giglio material and Jencks Act

statements that it proposes to disclose two weeks and six weeks before trial. Doc. #745. The two-week material consists of 428 pages and three CDs of audio recordings and the six-week material consists of 1,431 pages. Id. The material includes reports, search warrants, criminal histories of witnesses, plea agreements, benefits provided to witnesses, transcripts of witnesses' statements, witness interviews and notes, and grand jury transcripts. As an initial matter, Defendants state that they are skeptical that the Government has complied with the narrow definition of a Jencks Act "statement" as discussed in the Court's May 23, 2005 discovery order and with Government counsel at the tenth case management conference. Doc. #782 at 3. The Court shares this skepticism. The Government includes as Jencks Act statements various photos of witnesses. Doc. #745. The Government also includes various reports containing interviews of witnesses. Id. It is unclear whether the purported Jencks Acts statements in the reports are those of the witnesses or the interviewers. As the Court explained in its May 23 order, whether writings or recitals of oral statements "can be considered `statements' under the Jencks Act depends . . . on whose statement allegedly is contained therein; that is, against whose testimony at trial they could be used as impeachment material." Doc. #702 at 9-10 (quoting United States v. Griffin, 659 F.2d 932, 938 (9th Cir. 1981)). A Government agent's interview notes that "simply record[s] . . . the interviewee's remarks cannot be a `statement' for Jencks Act purposes when the agent testifies as a government witness because it does not represent the agent's own words." The Government shall confirm at the eleventh case management conference that it has complied with the narrow definition of a Jencks Act "statement" with respect to all of the material the Government is withholding under the Act. Regarding the timing issue, Defendants argue that the complexity and scope of this case requires the immediate disclosure of the voluminous materials being withheld by the Government. Doc. #782 at 6-9. Defendants claim that the disclosure schedule proposed by the Government "would allow the balance of preparation in the days immediately before trial
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to be tipped overwhelmingly in favor of the [G]overnment" and that the "due process and Sixth Amendment rights of [D]efendants would be irreparably prejudiced." Id. at 8. Rather than addressing Defendants' concerns regarding the disclosure of nearly 2,000 pages of documents and three CDs of audio recordings shortly before trial, the Government addresses its disclosure requirements under Rule 16 and reiterates its contentions that Defendants have "no right to pretrial discovery of information regarding informants" and are "not entitled to have the informant[s] produced in advanced of trial." Doc. #793 at 2-6. The items that may be withheld until shortly before trial include three categories: (1) material covered by the Rule 16(d)(1) protective order entered above, (2) any Brady/Giglio material not included within the protective order,1 and (3) any Jencks Act statements (as narrowly defined). Because the items listed in the current Government notice do not correspond to the items listed in the parties' discovery matrix, the Court cannot determine the amount of material remaining after today's ruling. As a result, on or before October 20, 2005, the Government shall file a revised notice, in as much detail as its previous notice, identifying the volume of material withheld. The Court will address the timing of disclosures at the eleventh case management conference described below. IV. The Motions for Disclosure of Grand Jury Transcripts. A request for grand jury information is within the sound discretion of the Court. See United States v. Walczak, 783 F.2d 852, 857 (9th Cir. 1986). The Court should order disclosure of grand jury transcripts "when the party seeking them has demonstrated that a `particularized need exists which outweighs the policy of secrecy.'" Id. (quoting Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959)). Under Rule 6(e)(3)(E)(ii), the Court "may authorize disclosure . . . of a grand-jury matter . . . at the request of a [D]efendant who shows that a ground may exist to dismiss the indictment because of a matter

The Court notes that this could only be material not covered by Rule 16(a)(1). To the extent Brady/Giglio material falls within Rule 16(a)(1) ­ including materials as to which Defendants have made a prima facie showing under Rule 16(a)(1)(E)(i) ­ and is not covered by today's protective order, it must be disclosed now pursuant to Rule 16.
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that occurred before the grand jury[.]" Fed. R. Crim. P. 6(e)(3)(E)(ii); see Douglas Oil v. Petrol Stops N.W., 441 U.S. 211, 219-22 (1979) (discussing the purposes behind grand jury secrecy and stating that "[p]arties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed."). A. Defendant Johnston's Motion.

Defendant Johnston argues that a ground may exist to dismiss the indictment in this case because confidential informant Rudolph Kramer "has admitted that he was forced to lie and sign false statements concerning his part in the HAMC investigation" and the Government knowingly presented this false evidence to the grand jury. Doc. #653 at 8. Defendant concludes that "[t]he ends of justice require the disclosure of the transcripts to insure that [he] is not tried on an indictment based on false testimony." Doc. #709 at 3-4. As Defendant's own evidence shows, however, Kramer states that he did not lie or sign any false statements. Doc. #707 Ex. A, Tr. 3:24-25/4:1-21, 9:14-25. Defendant has thus not shown that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury. See Fed. R. Crim. P. 6(e)(3)(E)(ii). Nor has Defendant shown that a particularized need otherwise exists which outweighs the policy of grand jury secrecy. See Douglas Oil, 441 U.S. at 222; United States v. Bennett, 702 F.2d 833, 836 (9th Cir. 1983) (holding that the district court properly denied the defendant's motion for disclosure of grand jury transcripts because "[t]he defendant's assertion that he ha[d] no way of knowing whether prosecutorial misconduct occurred [did] not constitute a particularized need outweighing the need for grand jury secrecy"); United States v. Thompson, 493 F.2d 305, 309 n.4 (9th Cir. 1974) ("The denial of [defendants'] pretrial motion for disclosure of grand jury testimony was proper since there was no demonstration of any `particularized need' to examine the testimony[.]"). The Court will deny Defendant Johnston's motion for disclosure of grand jury transcripts.

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B.

Defendant Murphy's Motion.

Defendant Murphy argues that a ground may exist to dismiss counts 1, 2, and 30 of the indictment because discovery has revealed no evidence showing that he (1) was acting in furtherance of the activities of the HAMC when the alleged illegal drug sales took place or (2) was carrying a firearm "in relation to a drug trafficking crime." Doc. #742 at 3-6. Defendant argues that he has shown a particularized need for the grand jury transcripts because he cannot properly file a motion to dismiss until he has had an opportunity to review the relevant transcripts that may address these issues. Id. at 6-7. An indictment may not be dismissed on the ground that incompetent or inadequate evidence was presented to the grand jury. See United States v. Al Mudarris, 695 F.2d 1182, 1185 (9th Cir. 1983); Guam v. Muna, 999 F.2d 397, 399 (9th Cir. 1993) (holding that the district court did not err in failing to dismiss an indictment on the ground that the prosecutor failed to present exculpatory evidence to the grand jury); United States v. Basurto, 497 F.2d 781, 784 (9th Cir. 1974) ("It is clear . . . that when a duly constituted grand jury returns an indictment valid on its face, no independent inquiry may be made to determine the kind of evidence considered by the grand jury in making its decision."). Moreover, Defendant's desire to have the grand jury transcripts as a discovery tool to help him prepare a motion to dismiss does not constitute a particularized need that outweighs the policy of secrecy. See Douglas Oil, 441 U.S. at 222; Bennett, 702 F.2d at 836; Thompson, 493 F.2d at 309. The Court will deny Defendant Murphy's motion for disclosure of grand jury transcripts.2 V. Defendant Johnston's Request for Evidentiary Hearing Re: Wiretap Evidence. Defendants have requested discovery related to five wiretaps referenced in the curriculum vitae of Agent Joseph Slatella. Doc. #744, Ex. A. Defendant Johnston argues that an evidentiary hearing should be held so that the Court "can determine, based on the full

Defendant Murphy filed a motion for reasonable notice of Rule 404(b) evidence and a motion to sever defendants on July 27, 2005. Docs. ##761-62. A review of the Court's docket shows that the Government has not responded to these motions. If the Government intends to respond, it shall do so by October 21, 2005.
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development of the disputed facts, whether the requested materials should be disclosed by the [G]overnment." Id. at 2. The Court finds that an evidentiary hearing is unnecessary because the Government has agreed to disclose the requested discovery and the Court has ordered the Government to do so. Docs. ##773 at 1, 813 at 16 ¶ B. The Court will deny Defendant Johnston's request for an evidentiary hearing. VI. Existing Schedule. The Court's order dated September 14, 2005 (Doc. #813), set an eleventh case management conference for October 14, 2005, and required the Government to make all disclosures required by this order on October 21, 2005. These dates were based on the Court's assumption that this order would be issued by September 30, 2005. See Doc. #813 at 16, ¶ C. Because this order has been issued later than expected, these dates will be adjusted as follows: the eleventh case management conference will be held on October 21, 2005, at 2:00 p.m., and all disclosures required by this order will be made by the Government on or before November 4, 2005. The parties shall provide the Court with a jointly-prepared eleventh case management report on or before October 20, 2005. All other dates in the September 14, 2005 order (Doc. #813 at 16-17) shall remain in effect. IT IS ORDERED: 1. Defendants' motion regarding discovery requests (Doc. #779) is granted in

part and denied in part as set forth in this order. 2. The Government's ex parte application to defer discovery (Doc. #800) is

granted as set forth above. 3. The Government shall make the disclosures required by this order by

November 4, 2005. 4. The Government shall file a revised notice regarding the documents to be

disclosed at a later time by October 20, 2005. 5. 2005. 6. An eleventh case management conference will be held on October 21, 2005,
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The parties shall file an eleventh case management report by October 20,

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at 2:00 p.m. 7. All other dates in the September 14, 2005 order (Doc. #813 at 16-17) shall

remain in effect. 8. Defendant Robert Johnston's motion for disclosure of grand jury transcripts

(Doc. #653) is denied. 9. Defendant Andrew Murphy's motion for production of relevant portions of

grand jury transcript (Doc. #742) is denied. 10. Defendant Robert Johnston's request for evidentiary hearing re: wiretap

evidence (Doc. #744) and motion to deem Government's failure to file a responsive pleading a consent to the granting of Defendant's request (Doc. #771) are denied. Dated this 12th day of October, 2005.

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