Opinion
CASE NO. 4:01 CR 207
October 9, 2001
ORDER REGARDING DISCOVERY
PROCEDURAL BACKGROUND
On 20 July 2001, Defendant Traficant filed a motion for discovery and inspection. (Docket No. 24). The government responded to the motion on 30 July 2001. (Docket No. 31). The response included a government request for reciprocal discovery from the defendant.
On 20 August 2001, Defendant Traficant filed a motion for disclosure of due process and Brady/Giglio/Bagley/Jencks materials. (Docket No. 35). The government responded to this second discovery motion on 28 August 2001. (Docket No. 46). In its response, the government once again requested reciprocal discovery from the defendant.
ANALYSIS
Discovery from the Government
There are specific authorities that require the government to produce certain discovery materials. Federal Rule of Criminal Procedure 16(a)(1) requires the government to disclose (upon the request of the defendant) statements of the defendant, the defendant's prior criminal record, certain documents and tangible objects, certain reports of examinations and tests, and written summaries of the testimony of expert witnesses to be used in the government's case-in-chief In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court explained that due process requires the government to produce all evidence, in the possession, custody, or control of the government, that is both exculpatory as to the charges in the indictment and material to guilt or to punishment Giglio v. United States, 405 U.S. 150 (1972), compels the government to turn over evidence, in the possession, custody, or control of the government, which serves to impeach the credibility of government witnesses. The Jencks Act, 18 U.S.C. § 3500, requires the government to produce statements, in its possession, custody, or control, made by its witnesses that relate to the subject matter of their testimony.
Materials known or accessible to the government with due diligence are treated as if they are in the possession, custody, or control of the government in the context of criminal discovery.
Defendant Traficant is not entitled to discovery beyond that which is required by these authorities. As the Supreme Court explained in United States v. Bagley, 473 U.S. 667, 675 (1985),
The Brady rule is based on the requirement of due process. Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur. Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.
A defendant, therefore, is not entitled to government production of material merely because it is helpful or useful in his defense. See United States v. Corrado, 227 F.3d 528, 539 (6th Cir. 2000).
In his two motions for discovery, Defendant Traficant makes thirty-two (32) specific discovery requests, several of which are duplicative. The requests can be divided into four categories: (1) requests for materials that have already been turned over by the government (2) requests for materials to which the defendant is not entitled; (3) requests for materials to which the defendant may be entitled under Brady or Giglio, but not at this time; and (4) requests for materials to which the defendant may be entitled under the Jencks Act, but not at this time.
Requests for Materials That Have Already Been Turned Over
The government has already turned over several of the items requested by Defendant Traficant. First, the defendant asks for "[a]ny and all photographs, audiotapes, videotapes, fruit of electronic surveillance of the Defendant." (Docket No. 24). According to the government, the "Defendant has received copies of the video and audio tapes in the government's possession in which Defendant was recorded." (Docket No. 31 at 5). The government has produced twenty video cassette tapes and 453 audio cassette tapes.
Second, Defendant Traficant requests all statements made by him that are in the possession of the government, any written summaries of these statements, and any recorded testimony of the defendant before the Grand Jury. The government repeatedly represents — and the defendant has not shown otherwise — that it "has produced all statements of Defendant pursuant to Rule 16(a)(1)(A)." (Docket No. 31 at 6, 7, and 8).
Third, Defendant Traficant requests "[a] history of Defendant's past criminal record." (Docket No. 24). The government made this material available to the defendant on 13 June 2001 and delivered it to him on 24 July 2001.
Fourth, the defendant requests "[t]he results of any and all scientific tests." (Docket No. 24). According to the government, it "has produced all such materials to which Defendant is entitled under Rule 16(a)(1)(D)." (Docket No. 31 at 9). The defendant has not shown otherwise.
Thus, the items set forth above, which Congressman Traficant seeks, are already in his possession.
Requests for Materials to Which Defendant Is Not Entitled
Defendant Traficant is not entitled to many of the items he requests. First, he seeks any and all requests and applications for authorization made by the government to record, monitor, or audit him, as well as warrants in the case and details regarding the requests. According to the government, "[n]o search warrants were sought in this case," so that item is unavailable. (Docket No. 31 at 4). As for the other items, Defendant Traficant makes no showing that he is entitled to these materials and has provided no legal authority that entitles him to them. Because the government did not seek any electronic surveillance under Title III, no disclosure under 18 U.S.C. § 2518(9) is required. Federal Rule of Criminal Procedure 16(a)(2) exempts the requests and applications from discovery under Rule 16 to the extent that they are internal government documents: "this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by the attorney for the government or any other government agent investigating or prosecuting the case." Based on his description of them, the requested items do not appear to be material and exculpatory or related to the credibility of government witnesses. of course, if they are discoverable under Brady or Giglio (and the defendant has made no showing to this effect) the government is obligated to produce them "in sufficient time to permit the defendant to make effective use of that material at trialUnited States v. Presser, 844 F.2d 1275, 1284 (6th Cir. 1988). Otherwise, the defendant is not entitled to these items.
Second, Defendant Traficant makes an overlapping request for the authorization to perform surveillance and recordings, the dates of surveillance, and any written memoranda or government forms regarding the electronic surveillance. As discussed above, Defendant Traficant is not entitled to these items unless they are discoverable under Brady orGiglie.
Third, Defendant Traficant requests "[a] history of any individual offering testimony against Defendant or any/or all associates of Defendant, including, but not limited to[,] financial statements, tax records, criminal or civil problems or violations, or reprimands regarding their personal or professional life." (Docket No. 24). To the extent that this blanket request includes material that cannot be used to impeach the credibility of government witnesses, the request is overbroad. To the extent that Defendant Traficant requests more than the evidence that serves to impeach government witnesses' credibility,Giglio does not provide for that discovery.
Fourth, the defendant asks for "[a]ny and all photographic array or arrays, audio tapes, video tapes, reports, documents, or statements that were exhibited to witnesses." (Docket No. 24). According to the government, "[n]o photographic arrays were used in the case." (Docket No. 31 at 10). The defendant already has been given the audio and video tapes to which he is entitled. There is no entitlement to the reports, documents, or statements under Rule 16 to the extent that they are internal government documents exempted from disclosure under Rule 16(a)(2). Moreover, unless they are exculpatory and material, they are not discoverable under Brady. If the materials are discoverable under the Jencks Act (and the defendant has made no showing to this effect) then the government must produce them after the relevant witness has testified at trial.
Fifth, the defendant requests "[t]he precise nature and conditions of all promises, consideration, agreements, or inducements of any description, and any discussions held or made between any government witnesses and [the government] which might tend to influence the witnesses' testimony ay trial." (Docket No. 24). He also seeks a list of the charges that could have been brought against government witnesses. To the extent that Defendant Traficant requests more than evidence of government promises made to government witnesses, which could serve to impeach the witnesses' credibility, Giglio does not provide for that discovery.
Sixth, Defendant Traficant seeks "[a]udiotapes of the `Jeep' Garono proffer made in the Euclid City Jail." (Docket No. 24). The government explains that there are no audio tapes of the statement. Also, the government correctly points out, "Since Garono provided no exculpatory evidence and will not be called as a prosecution witness, any statements he made are not discoverable." (Docket No. 31 at 11).
Seventh, the defendant asks for all surveillance reports and summaries of such reports, and all video and audio cassettes and photographs related to the case. Defendant Traficant does not show how he would be entitled to the reports and summaries, given Federal Rule of Criminal Procedure 16(a)(2). Absent extraordinary circumstances, he is not entitled to internal government documents under Rule 16. The defendant has been provided with the video and audio tapes to which he is entitled under Rule 16. If any of the requested items are exculpatory, material, and in the possession, custody, or control of the government, the government is required to turn them over "in sufficient time to permit the defendant to make effective use of that material at trial." Presser, 844 F.2d, at 1284. Otherwise, Defendant Traficant is not entitled to them.
Eighth, the defendant requests "[a]ny evidence of the periodic destruction of evidence, such as a policy or practice of disposing of certain records after the lapse of time." (Docket No. 35 at 3). He does not show how he would be entitled to this discovery under Rule 16. Nor is there any suggestion that evidence has been destroyed or of how this material would be exculpatory or material. Unless the evidence is exculpatory, material, and in the possession, custody, or control of the government, Brady does not require the government to produce it.
Ninth, the defendant requests "[t]he names and addresses of all alleged unindicted co-conspirators." (Docket No. 35 at 3). In United States v. Rey, 923 F.2d 1217, 1222 (6th Cir. 1991), the Sixth Circuit concluded that the government is not required to turn over such names. The Sixth Circuit explained, "The government was not required to furnish this information. A defendant may be indicted and convicted despite the names of his co-conspirators remaining unknown." Id.
Thus, for the reasons discussed above, subject to a showing of entitlement by Defendant Traficant, the government is not obligated to produce these items.
Requests for Brady and Giglio Materials
Defendant Traficant is or may be entitled to several items he requests under Brady and Giglio. However, the government is only required to provide them at an appropriate time, not immediately.
The defendant asks for written summaries of oral statements made by potential government witnesses. In general, such summaries might be discoverable under the Jencks Act or Brady.
The Jencks Act defines a "statement" as
(1) a written statement made by said witness and signed or otherwise adopted or approved by him;
(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or
(3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.18 U.S.C. § 3500(e). According to the Sixth Circuit, the adoption test applies to summaries of oral statements made by government witnesses with respect to the Jencks Act, and "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.Sd 645, 654 (6th Cir. 1993) (internal quotation marks omitted). In this case, there is no indication that this procedure was followed for any potential government witness. Unless it was, Defendant Traficant is not entitled to these summaries under the Jencks Act. It however, any of the summaries are material and exculpatory, then the defendant is entitled to them at the appropriate time under Brady.
Defendant Traficant seeks a witness list. Under United States v. McCullah, 745 F.2d 350, 353 (6th Cir. 1984), "defense counsel is not entitled to know in advance of trial who will testify for the government." In Weatherford v. Bursey, 429 U.S. 545, 559 (1977), the Supreme Court explained, "It does not follow from the prohibition against concealing evidence favorable to the accused that the prosecution must reveal before trial the names of all witnesses who will testify unfavorably."
The defendant asks for discovery of all "negative exculpatory evidence related to the instant indictment and investigation of Defendant." (Docket No. 35 at 3). "Negative exculpatory" evidence is evidence of instances in which the defendant had the opportunity to commit the charged crime, but did not. In United States v. Qaoud, 777 F.2d 1105, 111 (6th Cir. 1985), the Sixth Circuit decided that evidence that a judge did not accept bribes from one influence peddler "demonstrates little or nothing about Callahan's intent on the charges made in this indictment," which involved the receipt of kickbacks from other people to "fix" other cases. The Court also cited United States v. Grimm, 568 F.2d 1136, 1138 (5th Cir. 1978), for the proposition that "[e]vidence of non-criminal conduct to negate inference of criminal condition is generally irrelevant." Id. This Court reads Qaoud to mean that, unless proffered negative exculpatory evidence is crucial to the charges made in the defendant's indictment, it may not be used. Given that such a showing has not been made, assuming that the evidence exists and is in the possession, control, or custody of the government, it need not be turned over by the government.
In addition, under Brady and Giglio, Defendant Traficant is or may be entitled to the following materials, if they are in the possessions custody, or control of the government, but only at appropriate times: (1) all evidence that is both material and exculpatory and that is related to the indictment and investigation of the defendant; (2) "[t]he results of[,] or reports relating to[,] any investigation suggesting or demonstrating that the law enforcement officer may have induced or facilitated an offense" to the extent that they are relevant and material to the offenses charged in this case (Docket No 35 at 3); (3) evidence that serves to impeach the credibility of government witnesses, including past criminal records and plea agreements; and (4) "[a]ny evidence that any alleged victim or any potential prosecution witness was unsure about his or her testimony, has recanted, or wishes to recant any testimony identifying the Defendant as the perpetrator; or, any evidence that such persons wish to or have recanted in part." (Docket No. 35 at 3).
Requests for Jenoks Act Materials
Under the Jencks Act, Defendant Traficant is entitled to some of the statements made by potential government witnesses he requests, but only after the government witness has testified at trial.
Defendant Traficant seeks discovery of any recorded testimony of potential government witnesses made before the Grand Jury. Under United States v. Short, 671 F.2d 178, 184 (6th Cir. 1982), the district court can only require pre-trial disclosure of secret grand jury testimony when the defendant shows a "compelling necessity" and "particularized need" for the grand jury transcript. Defendant Traficant has made no such showing and, absent such a showing, under the Jencks Act, he is not entitled to this material before the witness testifies at trial (assuming the witness testifies at all). See 18 U.S.C. § 3500(e)(3).
Additionally, the Jencks Act mandates that the government disclose any statements (whether written, captured by electronic surveillance, or oral), as defined by 18 U.S.C. § 3500(e), of any government witness, that are in the possession, custody, or control of the government, and that relate to the witness's testimony, but only after the witness has testified at trial.
Reciprocal Discovery by the Defendant
In its two responses to Defendant Traficant's discovery motions, the government renews its request for reciprocal discovery. The original request accompanied the delivery of thirty-seven (37) boxes of discovery material to Defendant Traficant on 24 July 2001. The government seeks
all books, papers, documents, photographs, [and] tangible objects which Defendant intends to introduce as evidence and the results of reports of any physical or mental examinations and of any scientific tests or experiments which Congressman Traficant intends to introduce into evidence or which were prepared by and relate to the testimony of any witnesses Congressmen Traficant intends to call at trial.
(Docket No. 46 at 6-7).
The government is entitled to this material under Federal Rule of Criminal Procedure 16(b)(1). According to the Court's Criminal Trial Order of 24 May 2001, "Counsel shall notify the Court in writing of any failure to provide discovery material." (Docket No. 13 at 2). The government has notified the Court that, in spite of two requests, the defendant has not produced any discovery materials. Defendant Traficant must produce the requested material by 4 December 2001.
CONCLUSION
To the extent that Defendant Traficant's two discovery motions ask for materials that already have been turned over to him by the government, the motions are denied as moot. To the extent that his motions ask for materials to which the defendant is not entitled, the motions are denied. To the extent that Defendant Traficant's motions request immediate production of materials to which he is or may be entitled underBrady, Giglio, and the Jencks Act, the motions are denied. To the extent that his motions request production, at the appropriate times, of materials to which he is entitled under Brady, Giglio, and the Jencks Act, the defendant's motions are reserved and may be renewed by the defendant it in fact, the government does not produce the materials at the appropriate times.
IT IS SO ORDERED.