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United States v. Bell

United States District Court, E.D. Michigan, Southern Division

July 31, 2019

UNITED STATES, Plaintiff,
v.
DARRICK DERNARD BELL, et al., Defendants.

         OPINION & ORDER (1) GRANTING IN PART DEFENDANT JANETTE GAGGO TAWFIK'S FIRST MOTION FOR DISCOVERY (Dkt. 232), AND ALL JOINDER MOTIONS (Dkts. 233, 240, 244, 245, 247, 248, 252), DEFENDANT TERRY PRUITT'S MOTION TO PRODUCE WITNESS LIST, EXHIBIT LIST, JENCKS ACT MATERIALS AND CRIMINAL HISTORIES AND OTHER ITEMS (Dkt. 237), AND ALL JOINDER MOTIONS (Dkts. 245, 249, 252), AND DEFENDANT HAROLD LASHAWN NERO'S FIRST MOTION FOR DISCOVERY (Dkt. 241); (2) GRANTING TAWFIK'S SECOND MOTION FOR DISCOVERY (Dkt. 282); AND (3) DENYING NERO'S MOTION TO COMPEL DISCOVERY (Dkt. 274)

          MARK A. GOLDSMITH UNITED STATES DISTRICT JUDGE

         These matters are before the Court on Defendant Janette Gaggo Tawfik's motion for discovery (Dkt. 232), [1] Defendant Terry Pruitt's motion to produce witness list, exhibit list, Jencks Act materials and criminal histories and other items (Dkt. 237), [2] and Defendant Harold Lashawn Nero's motion for discovery (Dkt. 241). The Government has filed a response brief to all three motions (Dkt. 262), and Defendants Nero and Tawfik have filed reply briefs in support of their respective motions (Dkts. 266, 269). Defendant Tawfik also filed a second motion to compel discovery (Dkt. 282), to which the Government did not respond. And Defendant Nero filed a second motion for discovery (Dkt. 274), to which the Government filed a response brief in opposition (Dkt. 275). For the reasons discussed below, the Court orders the Government to produce discovery under Federal Rule of Criminal Procedure 16 by September 6, 2019, a witness list by October 7, 2019, and material under Brady v. Maryland, 373 U.S. 83 (1962), by November 6, 2019.

         I. BACKGROUND

         The charges in this case include sex trafficking and drug offenses, including distribution of controlled substances resulting in death. See Superseding Indictment (Dkt. 98). Because the Court has previously described the factual and procedural background of this case in greater detail in other opinions, it need not do so again for purposes of the present motion. See, e.g., 7/15/2019 Op. & Order (Dkt. 306) (denying Defendant Ford's motion for bond).

         II. STANDARD OF DECISION

         In contrast to the broad scope of discovery in civil cases, the discovery available to a criminal defendant is relatively constricted. For most criminal prosecutions, there are three governing rules that “‘exhaust the universe of discovery to which [a] defendant is entitled.'” United States v. Watson, 787 F.Supp.2d 667, 672 (E.D. Mich. 2011) (quoting United States v. Presser, 844 F.2d 1275, 1285 n.12 (6th Cir. 1988)).

         The first is the Brady doctrine, derived from Brady v. Maryland, 373 U.S. 83 (1962), which requires the Government to disclose evidence that is favorable to the accused and material to guilt or sentencing, as well as evidence that could be used to impeach the credibility of a government witness. Watson, 787 F.Supp.2d at 672 & n.5.

         The second is Federal Rule of Criminal Procedure 16(a), which “requires the government to disclose, upon a defendant's request, any oral or written statements of the defendant, the defendant's prior record, any documents or tangible evidence within the government's possession, custody or control [that are material to the defense or to be used in the Government's case-in-chief], reports of examinations or tests, and a summary of any expert witness testimony.” Watson, 787 F.Supp.2d at 672 (citation and quotation marks omitted); Presser, 844 F.2d at 1285 (“[D]iscovery afforded by Rule 16 is limited to the evidence referred to in its express provisions.” (emphasis added)).

         The third is the Jencks Act, which “‘generally requires the government, on motion of a defendant, to produce statements in its possession of witnesses who testify at trial.'” Watson, 787 F.Supp.2d at 672 (quoting United States v. Short, 671 F.2d 178, 185 (6th Cir. 1982)); 18 U.S.C. § 3500(b);[3] see also United States v. Davis, 306 F.3d 398, 421 (6th Cir. 2002) (“When Brady material sought by a defendant is covered by the Jencks Act . . . the terms of that Act govern the timing of the government's disclosure.”); Presser, 844 F.2d at 1282-1285 (holding that neither Brady, Giglio v. United States, 405 U.S. 150 (1972), nor Rule 16 gives a defendant the right to broad pretrial discovery of impeachment evidence, the disclosure of which is instead controlled by the Jencks Act).

         III. DISCUSSION

         Defendants seek disclosure of Jencks Act, Brady, and Rule 16 material. See Tawfik Mot. ¶¶ 3-7 (Dkt. 232); Pruitt Mot. ¶¶ 2-19 (Dkt. 237); and Nero Mot. at 4-8. The Government argues that the motions should be denied because it represents that it will timely honor its discovery obligations. Gov't Resp. at 3. It says that it will provide Jencks Act material and witness lists one week before trial, and all other material in time for use at trial. The Court will address the motions under the three governing rules in turn.

         A. Jencks Act Material

         Defendants argue that any Jencks Act material should be disclosed sixty days before trial to permit the trial to proceed in an efficient manner and to protect Defendants' inherent right to a fair trial. See Tawfik Mot. ¶ 3 and Br. at 10; Pruitt Mot. ¶ 8. The plain language of the Jencks Act, however, prohibits a district court from ordering disclosure of this material before a witness has testified on direct examination. See 18 U.S.C. § 3500(a);[4] see also United States v. Fletcher, 295 Fed.Appx. 749, 753 (6th Cir. 2008) (“[A]ny [Jencks Act] materials disclosed prior to trial exceeded the government's obligation under the Act.”); United States v. Boykins, 915 F.2d 1573 (Table), at *5 (6th Cir. 1990) (“The Sixth Circuit has expressly held that the government has no obligation to disclose and the trial court has no discretion to require disclosure of Jencks Act material before a witness testifies.” (citing United States v. Algie, 667 F.2d 569, 571 (6th Cir. 1982))); Presser, 844 F.2d at 1283 (“The clear and consistent rule of this circuit is that the intent of Congress expressed in the [Jencks] Act must be adhered to and, thus, the government may not be compelled to disclose Jencks Act material before trial.”). Because this Court lacks the authority to compel pretrial disclosure of Jencks Act material, Defendants' motions are denied in this respect.[5]

         B. Rough Notes under the Jencks Act

         Defendants also seek disclosure of “rough” notes. Pruitt Mot. ¶ 8; Nero Mot. at 6. Rough notes generally refer to interview or other notes taken by law enforcement. Defendants argue that early disclosure of rough notes will avoid unnecessary recesses and delays by defense counsel to properly use the rough notes for cross-examination. The Government does not object to maintaining rough notes and represents that it has reminded law enforcement to do so. Gov't Resp. at 14. However, it argues there is no obligation to produce the rough notes at this time. Id. The Government has the better part of the argument.

         The Government points out correctly that as a general matter rough notes are not discoverable. See United States v. Neuhard, No. 15-CR-20425, 2016 WL 6871454, at *12 (E.D. Mich. Nov. 22, 2016) (“Sixth Circuit precedent supports the Government's argument that rough notes are typically not discoverable.” (citing United States v. Stephens, 492 F.2d 1367, 1377 (6th Cir. 1974))). Under limited circumstances, rough notes may be produced under the Jencks Act.

         As noted previously, the Jencks Act requires the Government to turn over a statement of a witness after the witness has testified on direct examination. A “statement” includes a writing that is a “substantially verbatim” recitation of the witness's statement that was made “contemporaneously” to the statement. See Palermo v. United States, 360 U.S. 343, 351 (1959). According to the Sixth Circuit's “adoption test, ” which is used to determine whether a statement must be produced under the Jencks Act, “a government report or notes of a witness' statement must be produced ‘if the notes from the interview were read back to and verified by the witness and if the report summarized the notes without material variation.'” United States v. Farley, 2 F.3d 645, 654 (6th Cir. 1993) (quoting United States v. Williams, 962 F.2d 1218, 1224 (6th Cir. 1992)); see also United States v. Stephens, 492 F.2d 1367, 1377 (6th Cir. 1974) (“The Jencks Act applies to a ‘substantially verbatim recital' of an oral statement by a witness and does not apply to an officer's rough notes.”).

         Assuming a witness has adopted statements in any government agent's notes or reports that would require production under the Jencks Act, a district court is prohibited from ordering disclosure of this material before trial. See Fletcher, 295 Fed.Appx. at 753. And because the Government has indicated that it will maintain any rough notes, an order from this Court directing such retention and preservation is unnecessary. See United States v. Graham, No. 15-20652-05, 2016 WL 6158962, at *2 (E.D. Mich. Oct. 24, 2016) (denying as moot the defendant's motion for government agents and law enforcement officers to retain rough notes where ...


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