Opinion
Case No. 99 CR 752
July 17, 2000
MEMORANDUM OPINION AND ORDER
David Siegfried is charged in a 19-count indictment with manufacturing, and possessing with intent to distribute, various controlled substances and analogues, and with possession of various precursor chemicals with the intent to manufacture methamphetamine. The purpose of this order is to rule on several pretrial motions filed by Siegfried.
1. Motion for discovery
Drug Enforcement Administration chemists performed laboratory analysis of a number of substances seized from Siegfried's residence. The government has produced the chemists' reports and laboratory notes to the defense. Siegfried seeks discovery of the laboratory protocols — in other words, testing methodologies — so that he can have an expert examine them to determine their reliability. The government resists disclosure of these items, saying that they are outside the scope of Federal Rule of Criminal Procedure 16(a)(1)(D), which requires production of "results or reports . . . of scientific tests or experiments." It relies on United States v. Iglesias, 881 F.2d 1519, 1523-24 (9th Cir. 1989), in which the court held that the trial court's failure to order production of testing protocols was not an abuse of discretion, United States v. Price, 75 F.3d 1440, 1445 (10th Cir. 1996), in which the court held that discovery of laboratory notes was not required under the Rule, and Wolford v. United States, 401 F.2d 331, 333 (10th Cir. 1968), in which the court held that the defendant had not been prejudiced by the government's failure to produce documents describing laboratory testing procedures.
The fact that denial of discovery might ultimately turn out on appeal not to have prejudiced the defendant or to have constituted an abuse of discretion is not a compelling reason for a trial court not to order the discovery in the first place. Unlike the Court of Appeals, this Court has not seen or heard the evidence at trial and cannot say whether the information requested will turn out to be insignificant or that its non-production ultimately will not demonstrably prejudice the defense. Based on the limited material now available to the Court, it appears that the government's case will be based in significant part on the results of the tests. That being the case, considerations of fundamental fairness require that the defense have access to material concerning the manner and means of testing so that it can make an independent determination of the tests' reliability and have a fair opportunity to challenge the government's evidence. The testing protocols may not be, strictly speaking, "results or reports" of testing and thus may well not be covered by Rule 16(a)(1)(D). Even if not, however, the Court believes for the reasons stated that the protocols are "material to the preparation of the defense" and are thus within the scope of Rule 16(a)(1)(C) even if they are outside the scope of Rule 16(a)(1)(D). The Court therefore directs the government to produce to the defendant, within 28 days of this order, protocols for all scientific tests used in connection with the investigation of this case.
The Rules Advisory Committee's Notes to the 1974 amendments to Rule 16 state that "[t]he rule is intended to prescribe the minimum amount of discovery to which the parties are entitled. It is not intended to limit the judge's discretion to order broader discovery in appropriate cases." Fed.R.Crim.P. 16, 1975 Advisory Committee Notes, 4th paragraph. See also United States v. Campagnuolo, 592 F.2d 852, 857 n. 2 (5th Cir. 1979); United States v. Lewis, 511 F.2d 798, 803 n. 10 (D.C. Cir. 1975); United States v. Narciso, 446 F. Supp. 252, 264-65 (E.D. Mich. 1977).
Defendant also requests authorization to have its own expert test samples of the seized substances. The government does not object to this request. The Court orders the government to produce, within 28 days of this order, samples sufficient to permit testing of any item of which the government intends to introduce test results at trial.
Finally, defendant requests production of a written summary of all testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence in its case in chief, in conformity with Rule 16(a)(1)(E). The government is ordered to produce such a summary within 28 days of this order.
2. Motion for inventory of seized items and return of items not to be used as evidence
Seigfried seeks an order directing the government to provide him with a written inventory of all items seized from him or his residence. The government responds that it has produced all existing reports that contain a listing of the materials seized and has offered to permit defense counsel to examine and inspect any seized items. Aside from the requirements imposed by Fed.R.Crim.P. 41(d) (requiring a written inventory of any items seized pursuant to a search warrant), the government is under no obligation to create for defendant a new list of the items in its possession. Defendant's request is denied.
Siegfried also seeks the return of any items seized by the government that it does not intend to use as evidence at trial. The government says that the only such item is defendant's computer, and it is making arrangements to return that item to the defense. Defendant's request is denied.
3. Motion to preserve agents' notes
Seigfried requests that the Court direct all government agents to preserve their notes prepared during the course of the investigation that led to this case. The government has no objection to the motion and says that it has already instructed the primary case agents to preserve his notes and to instruct the other agents and officers in the investigation to preserve their notes. Defendant's motion is granted.
4. Motion for disclosure of exculpatory evidence
Defendant has filed a motion pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972) and their progeny, seeking pretrial disclosure of exculpatory evidence and material that may be useful in impeaching government witnesses. As the Court has commented on a prior occasion, see United States v. Lim, No. 99 CR 689, 2000 WL 782964, at *3 (N.D. Ill. Jun. 15, 2000), both the defendant's motion and the government's response are essentially boilerplate. The motion is a virtual duplicate of the one filed in Lim, and the government has submitted its standard response that it is "aware of its obligations" under Brady and Giglio and will honor those obligations, and that the motion should therefore be denied as "moot." As the Court commented in Lim, acceptance of the government's "mootness" position leaves it entirely up to the prosecutor (who is, after all, an advocate in an adversary system) to determine what may and may not be exculpatory or impeaching. Because the government's obligations under Brady and Giglio and their progeny are not entirely self-executing, and for the other reasons stated in Lim, the Court does not believe that defendant's request is moot.
The government has not responded to the particular requests made by Siegfried. The Court has reviewed those requests and considers all of them to be within the scope of what Brady and Giglio and their progeny require. Defendant's motion for disclosure of exculpatory evidence is granted. The government is directed to produce 21 days prior to trial material responsive to Seigfried's impeachment-related requests (paragraphs 2, 3, 4, 7, 8, 9, 10, 11, and 12), and it is directed to produce within 28 days of this order any and all evidence tending to exculpate the defendant, as well as any material responsive to Seigfried's remaining requests (paragraphs 1, 5, 6, and 13).
5. Motion for notice of intention to use other act evidence
Seigfried has moved for entry of an order directing the government to provide notice of evidence of other crimes, wrongs or acts within the meaning of Federal Rule of Evidence 404(b) that the government may use at trial, as well as evidence of specific instances of conduct that the government may use to cross-examine witnesses under Federal Rule of Evidence 608(b).
Rule 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove a person's character to show that he acted in conformity with that character. The Rule also provides, however, that such evidence may be admissible for other purposes, for example, to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In 1991, the Rule was amended to impose a pretrial notice requirement in criminal cases; if the defendant so requests, the prosecution is required to provide "reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial." Fed.R.Evid. 404(b). The Advisory Committee Notes discussing the 1991 amendment state that "no specific form of notice is required"; the Committee rejected a proposal that the notice satisfy the particularity requirements required of indictments. See Fed.R.Evid. 404(b), 1991 Advisory Committee Notes. The Notes also state that the amendment "requires the prosecution to provide notice, regardless of how it intends to use the extrinsic act evidence at trial, i.e., during its case-in-chief, for impeachment, or for possible rebuttal." Id.
The government has stated that it does not currently intend to introduce any other act evidence within the meaning of Rule 404(b) and that if it changes its mind, it will provide reasonable notice within the meaning of the Rule. It proposes that the Court deny defendant's motion as moot. Once again, the government misunderstands the meaning of the term "moot." Without a specific, binding, and irrevocable undertaking by the government not to introduce other act evidence — an undertaking that is lacking here — defendant's request is not "deprived of practical significance" or made "abstract or purely academic." See Webster's Third New International Dictionary 1468 (1993). The government is directed to disclose, at least 21 days prior to trial, any other act evidence covered by Rule 404(b) that it plans to introduce. The government should also be aware that if it discloses that close to trial evidence that the defendant can show reasonably requires additional time for the defendant to investigate and address, the Court may well be forced to continue the trial. The Court urges the government to consider earlier production, for this will facilitate resolution prior to trial of any issues of admissibility that might be raised and will also reduce or eliminate the need for a continuance.
The Court directs the government to disclose not only all other act evidence that it intends to offer in its case in chief, but also any such evidence that it intends to offer to impeach any witness (including the defendant) or in rebuttal. The Advisory Committee Notes to Rule 404(b) make it clear that this is what the 1991 amendment requires. See generally United States v. Vega, 188 F.3d 1150 (9th Cir. 1999) (reversing conviction due to government's failure to disclose prior to trial other act evidence used to cross examine defendant).
With regard to any such other act evidence, the government must provide defendant with a written disclosure of the nature of the evidence, including a general description of the act or acts and the dates, places, and persons involved, and a statement of the issue or issues on which the government believes the evidence is relevant and admissible. The government must also produce any documents which contain or constitute evidence of any such other acts. See Fed.R.Crim.P. 16(a)(1)(C) (government is required to produce documents and things which are "material to the preparation of the defense" or which are intended for use as evidence in chief). The government is not, however, required to produce prior to trial the statements of other participants in any such other acts, at least to the extent that these persons may be government witnesses; the Jencks Act ( 18 U.S.C. § 3500) and Federal Rule of Criminal Procedure 26.2 preclude the Court from ordering the government to produce statements of its witnesses prior to trial.
Siegfried also requests disclosure of evidence of "specific instances of conduct" that the government may use at trial pursuant to Federal Rule of Evidence 608(b). Rule 608(b) permits a cross-examiner to use specific instances of a witness' conduct to impeach the witness, so long as they are probative of the witness' credibility. Siegfried cites no authority supporting his request to obtain such evidence prior to trial. The Court agrees with the government that as a general rule, a defendant is not entitled to production of 608(b) evidence prior to trial. See United States v. Hartmann, 958 F.2d 774, 789 n. 5 (7th Cir. 1992). However, to the extent that evidence to be used to impeach under Rule 608(b) constitutes "other act" evidence within the meaning of Rule 404(b) and the 1991 Advisory Committee Notes, the fact that it might also be admissible under Rule 608(b) will not excuse the government from producing it prior to trial pursuant to the Court's ruling on defendant's motion for disclosure of other act evidence. In addition, as noted in Hartmann, to the extent any impeachment evidence that the government may seek to use under Rule 608(b) is subject to the disclosure requirements of Federal Rule of Criminal Procedure 16, the government likewise is not excused from producing it prior to trial simply because of the fact that it constitutes Rule 608(b) evidence.
Defendant has not argued that Rule 608(b) evidence ought to be disclosed pursuant to Rule 16.
6. Motion for pretrial service of subpoenas for records
Seigfried has moved pursuant to Federal Rule of Criminal Procedure 17(c) for permission to issue subpoenas duces tecum to issue for the production of records and objects prior to trial. The government does not object. The Court grants defendant's motion and orders that both sides may serve subpoenas for records with a pretrial return date. However, because a subpoena is a directive of the Court, and not a private discovery request of a party, any records or objects obtained by either side as the result of the issuance of a subpoena duces tecum must be made available by the obtaining party for inspection by the opposing party promptly after their receipt.
Conclusion
Defendant's motion to file pretrial motions instanter [38-1] is granted. For the reasons stated above, defendant's motion for discovery and for testing of items [30-1, 30-2] is granted; defendant's motion for inventory of items and return of items not intended to be introduced as evidence [31-1, 31-2] is denied; defendant's motion to preserve agents' notes [26-1] is granted; defendant's motion for disclosure of exculpatory evidence [27-1] is granted; defendant's motion to require notice of intention to use other crimes, wrongs or acts evidence [28-1] is granted in part and denied in part as described above; and defendant's motion for issuance of subpoenas [29-1] is granted.