United States District Court, E.D. Michigan, Southern Division
& 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)
A. GOLDSMITH UNITED STATES DISTRICT JUDGE
matters are before the Court on Defendant Janette Gaggo
Tawfik's motion for discovery (Dkt. 232),  Defendant Terry
Pruitt's motion to produce witness list, exhibit list,
Jencks Act materials and criminal histories and other items
(Dkt. 237),  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.
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).
STANDARD OF DECISION
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)).
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
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)).
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); 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).
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.
Jencks Act Material
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); 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
Rough Notes under the Jencks Act
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
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
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.”).
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 ...