Ray R. Brown
510 L Street, Suite 603
Anchorage, AK 99501
(907) 277-5400
Counsel for Defendant Birdwell
Rich Curtner
Federal Defender
550 W. Seventh Ave., Suite 1600
Anchorage, AK 99501
(907) 271-2277
Counsel for Defendant Herron
JOINT MOTION FOR
PRE-TRIAL DISCOVERY
Defendants xxxxxx and xxxxxx, through counsel Ray R. Brown and Rich Curtner, respectfully, and pursuant to F.R.Cr.P. 12 and 16 and Brady v. Maryland, 373 U.S. 83, 835 S.Ct. 1194, 10 L.Ed. 2d 215 (1963), request disclosure and production of the following information, evidence and material not previously disclosed as more specifically described in the attached memorandum.
This motion is supported by the attached memorandum in support of defendants' joint motion for pre-trial discovery.
A period of excludable delay under 18 U.S.C. § 31610(@ may occur as a result of the filing/granting/denying of this motion.
Ray R. Brown
DILLON & FINDLEY, P.C.
51 0 L Street, Suite 603
Anchorage, AK 99501
(9071 277-5400
Counsel for Defendant
Rich Curtner
Federal Defender
550 W. Seventh Ave., Suite 1600
Anchorage, AK 99501
(907) 271-2277
Counsel for Defendant
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
xxxxxxxx, MEMORANDUM IN SUPPORT OF
xxxxxxxxxx, and JOINT MOTION FOR PRE-TRIAL
xxxxxxxxxxx, DISCOVERY
Defendants.
Case No. A96-0096-2 CR (JWS)
1. INTRODUCTION
At the outset, it should be noted that defendants have requested, and continue to request, all information, documents, statements and material to which they are entitled under Federal Rule of Criminal Procedure 16. This includes those items which are "material to the preparation of the defendant's defense or are intended for use by the government as evidence-in-chief at the trial, or were obtained from or belonged to the defendant(s).' F.R.Cr.P. 16(a)(1)(C).
This motion is not intended to relieve the government of the duty to provide all such information to defendants or to supplement such disclosure as
required. F.R.Cr.P. 16(c). Rather, this motion is designed to focus on specific information, evidence and material to which the defendants are entitled, but which have not yet been provided. (1)
II. ARGUMENT
A. Statements of the Accused
The constitutional obligation to furnish discovery material extends to provision of the accused's statements, Clewis v. Texas, 386 U.S. 707, 712 n.8, 87 S.Ct. 1338, 18 L.Ed. 2d 423 (1967), and is further governed by F.R.Cr.P. 16(a)(1)(A). The accused's statements include summaries of his or her statements made by government agents or witnesses during the course of interviewing or monitoring the accused which were recorded or memorialized at any time. U.S. v. Walk, 533 F.2d 417, 418 (9th Cir. (Cal.) 1975); U.S. v. Carter, 621 F.2d 238, 240 (6th Cir. (Mich.) 1980) cert. denied 449 U.S. 858 (1980); U.S. v. Laten, 564 F. Supp. 1391, 1395-96 (D.C. Or. 1983); U.S. v. Egan, 501 F. Supp. 1252, 1264 (S.D.N.Y. 1980) (accused entitled to rough or handwritten notes of agent made during interview); U.S. v. Johnson, 525 F.2d 999, 1004 (2nd Cir. (N.Y.) 1975) cert. denied 424 U.S. 920 (1976) (both verbatim statements and summaries recorded after the fact are discoverable); U.S. v. Thevis, 84 F.R.D. 47, 55-56 (N.D.Ga. 1979) (accused's statements made to third-parties later related to government are discoverable prior to trial, discovery not barred by Jencks Act as statement remains that of accused); U.S. v. Gallo, 654 F. Supp. 463, 470-71 (E.D.N.Y. 1987).
In short, defendants are requesting that the court should order governmental disclosure of the following:
1. All statements of defendants, regardless of their form, and regardless of whether the government considers them relevant;
2. All summaries of defendant' statements made by government agents or witnesses;
3. All statements or summaries of statements made by third-parties to the government, purporting to relate statements made by either defendant; and
4. to the extent not covered by the paragraphs above, all statements, confessions, admissions, remarks or utterances of the defendants made to any
investigating officers of agents of the United States government, including attorneys.
B. Exculpatory Evidence, Including Impeachment Evidence
Due process requires that the government not suppress evidence favorable to the accused. upon request, it must disclose such information to the defense. Brady v. Maryland, 373 U.S. 83, 835 S.Ct. 1194, 10 Led. 2d 215 (1963); U.S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 Led. 2d 342 (1976). The constitutional principles giving defendant the right to disclosure of exculpatory evidence and material also govern the timing of that disclosure.
Federal Rule of Criminal Procedure 16(a)(1)(C) is an independent source ofthe government's obligation to provide the defense with documents or evidence which are "material to the preparation of the defendant's defense...." the includes information or evidence which might be used to impeach the government's witnesses. See U.S. v. Five Persons, 472 F. Supp. 64, 67 (D.C.N.J. 1979); accord U.S. v. Bagley, 473 U.S. 667, 105 S.Ct. 3375 , 87 L.Ed. 2d 481 (1985); U.S. v. Iverson, 637 F. 2d 799 (D.C. Cir. 1980); rehearing denied 648 F. 2d 737 (D.C. Cir. 1981). Clearly, the Brady rule also extends to impeachment evidence, if the reliability of the witness may be determinative of a defendant's guilt or innocence. U.S. v. Bracy, 67 F.3d 1421,1428 (9th Cir. (Nev.) 1995); Giglio v. U-S 105 U.S. 150, 154, 763, 766, 31 L.Ed. 2d 104 (1972).
The combined force of Brady and Rule 16(a)(1)(C) constitutes a strong basis for extensive pre-trial disclosure. Numerous district courts have ordered such discovery both before and after the 1975 amendments which were intended to liberalize Federal Criminal Rule 16. See U.S. v. Thevis, 84 F.R.D. 47 (N.D.Ga. 1971); U.S. v. Five Persons, supra; U.S. v. Goldman, 439 F. Supp. 337, 349 (S.D.N.Y.) 1977; U.S. v. Dillard, 419 F. Supp. 1000, 1001 (N.D. Ill. 1976); U.S. v. Duetsch, 373 F. Supp. 289, 290-91 (S.D.N.Y. 1974).
In essence, defendants are asking for a meaningful opportunity to prepare their respective defenses, and to prepare for cross-examination. To be meaningful, disclosure must occur at a time when the defendants can investigate the information, see what new information it leads to, and formulate a plan for the utilization of the information pre-trial and during trial.
The court has the discretion to order the immediate disclosure of the following material:
1 . The criminal records of any witnesses it intends to call at trial, including any F.B.I. 'rap sheets' or N.C.I.C. computer searches related to those witnesses. (U.S. v. Bracy, supra);
2. The names and addresses of all witnesses to offenses charged in the indictment whom the government does not intend to call as witnesses at trial. U.S. v. Cadet, 727 F.2d 1453, 1468 (9th Cir. (Cal.) 1984);
3. The identities of all persons referred to as "others" in
5. Any documents, papers or materials which are inconsistent (or could be construed as inconsistent) with any aspect of the government's case-in-chief;
6. Any documents, statements, material or information which could be construed as exculpatory including, but not limited to, grand jury testimony or witness statements (redacted if necessary) exculpatory as to either defendant. U.S.
v.Spillone, 879 F.2d 514, 523 (9th Cir. (Cal.) 1989) cert. denied 498 U.S. 878
(1990);
7. Any documents, memoranda, notes or other recorded memorabilia evidencing deals, favors or immunity given to government witnesses in this case. To the extent that no documents exist memorializing such deals, favors or immunity, defendants request a written summary outlining the terms of any oral agreements between the government and witness(es). U.S. v. Laurins, 660 F. Supp. 1579, 1588 (N.D. Cal. 1987);
8. The results and/or reports of any scientific tests or experiments, whether or not the government intends to use such evidence at trial, including the analysis of handwriting exemplars;
9. The conclusions or findings of any expert the government intends to call at trial, whether or not he has prepared a written report. U.S. v. Barrett, 703 F.2d 1076, 1081 (9th Cir. (Or.) 1983);
10. Any witnesses statements which could be considered "negative exculpatory," Jones v. Jago, 575 F.2d 1164, 1168 (6th Cir. (Ohio) 1978) cert. denied 439 U.S. 883 (1978), and any other information favorable to the defense and material to the issues of guilt or punishment;
11. Transcripts (if available), log notes, pleadings and exhibits from all pre- or
post-indictment hearings involving subpoenas duces tecum issued by the U.S. Attorney to
law firms both in Alaska and in the Lower 48 which were objected to on the grounds of work
product or attorney-client privilege;
12. A list of all governmental attorneys (including F.D.I.C. counsel) who assisted the government in any way in presenting this case before the grand jury or in reviewing any portion of the government's presentation before the grand jury. See e.g. U.S. v. Benjamin, 852 F.2d 413, 417 (9th Cir. (Cal.) 1988) (assuming that such matters, if any, occurred before the grand jury or that they revealed the strategy and the direction of the grand jury investigation); and
13. Any information which the government intends to introduce against either defendant under F. R. E. 404(b).
C. Witness Statements
Independent of the principles discussed above, the government is
required under the Jencks Act, 18 U.S.C. § 3500, and F.R.Cr.P. 26.2 to produce upon request the statements previously made by a witness testifying for the prosecution in pre-trial proceedings or at trial. These statements include grand jury testimony of witnesses, and all notes of investigating officers if the officers are witnesses or if the notes record statements made by witnesses. U.S. v. Andersson, 813 F.2d 1450, 1459 (9th Cir. (Cal.) 1987) (duty to preserve and produce notes); See also, U.S. v. Harris, 543 F.2d 1247, 1250-53 (9th Cir. (Wash.) 1976); U.S. v.Johnson, 521 F.2d 1318, 1320 (9th Cir. (Ariz.)
(1975); U.S. v. Welch, 810 F.2d 485,
489-91 (5th Cir. (Miss.) 1987) cert. denied 484 U.S. 955 (1987); U.S. v. Allen, 798 F.2d 985, 993-94 (7th Cir.
(Ill.) 1986). If witnesses were interviewed by the U.S. Attorney, notes of that statement
covered by the Jencks Act (excluding work product) should likewise be discoverable and
produced.
It is the government's duty to preserve the rough notes of its investigating officers. See U.S. v. Andersson, supra; U.S. v. Harrison, 524 F.2d 421, 431-32 (D.C. Cir. 1975); U.S. v. Harris, supra. See also, U.S. v. Pollock, 417 F. Supp. 1332 (D.C. Mass. 1976) (indictment dismissed when agent destroyed rough notes after they were subpoenaed by the defense). If the government is not sure whether the rough notes contain Jencks Act statements, it should submit the notes to the court for its determination of that issue. U.S. v. AIlen, supra; U.S. v. Johnson, supra.
D. Materials Held by Other Law Enforcement or Governmental Agencies
The investigation of this case (apparently) included federal law enforcement personnel and (at least) the cooperation of the F.D.I.C. and its attorneys. Additionally, the bankruptcy trustee and his attorney may have cooperated or participated in the procurement of this indictment. Since the prosecutor has access to all of this information and evidence possessed by these governmental agencies and agents of the bankruptcy court, the court should order that the federal prosecutor has the same discovery obligations with respect to this evidence (assuming that is different from or in addition to the documentary evidence previously provided or contained in the bankruptcy file from the Northern District of Texas and District of Alaska). By analogy, see U.S. v. Bailleaux, 685 F.2d 1105, 1113 (9th Cir. (Cal.) 1982); Martinez v. Wainwright, 621 F.2d 184, 186-87 (5th Cir. (Fla.) 1980) (rap sheet in a medical examiners file is deemed in custody of the prosecution); U.S. v. Bryant, 439 F.2d 642, 650 (D.C. Cir. 1979) (duty of disclosure applies to whole government, not just the prosecutor).
E. Co-conspirator Statements
The interplay between F.R.Cr.P. 16(a)(1)(A) and F.R.E. 801(d)(2)(E)requires disclosure of all co-conspirator statements which the government may seek to introduce at trial. To the extent statements not made by the defendant personally are admissible against him as non-hearsay admissions pursuant to 801 (d)(2)(E), then they are his statements for the purposes of discovery under Rule 16. See U.S v. Thevis, 84 F. R. D. 47, 56-57 (N. D. Ga. 1971).
Some courts have rejected this contention. See U.S. v. Percevault, 490 F.2d 126 (2nd Cir. (N.Y.) 1974) (relying upon the characterization of coconspirator statements of prospective witnesses as Jencks material). This approach begs the question, however, because Rule 16(a)(2) makes clear that the exclusion of a discovery obligation for Jencks material does not apply to the defendant's own statements. Additionally, the United States Supreme Court's determination that the confrontation clause does not impose an unavailability requirement before coconspirator statements may be admitted at trial raises questions about the continuing vitality of Percevault and its progeny. See U.S. v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed. 2d 390 (1986); U.S. v. Gallo, 654 F. Supp. 463 (E.D.N.Y. 1987).
Even courts which follow the reasoning in Percevault recognize the government is required to produce "all statements made by defendants and coconspirators that the government plans to offer at trial as admissions of the defendant" except for any statements made by co-conspirators who are prospective witnesses. U.S. v. Gallo, supra; 654 F. Supp. at 480. Although somewhat unclear, the Ninth Circuit appears to be in accord. See, U.S. v. Cadet, 727 F.2d 1453, 1463 (9th Cir. (Cal.) 1984) (it is assumed that this is the law in the Ninth Circuit although this issue was not specifically ruled upon by the court. In Cadet, the government apparently conceded that such information was discoverable subject to the court's limitation imposed in U.S. v. Gallo.
The independently sufficient bases for this conclusion are Rule 16 and the court's inherent authority to regulate discovery in criminal cases. Courts have long recognized that disclosure should be made of co-conspirator statements where the declarants are not prospective government witnesses. See, e.g. U.S. v. Gallo, supra; U.S. v. Turkish, 458 F. Supp. 874, 882 (S.D.N.Y. 1978); U.S. v. Bloom, 78 F. R. D. 591, 61 8 (E. D. Pa. 1977); U. S. v. Fine, 413 F. Supp. 740, 742-43 (W. D. Wis. 1976).
Finally, the best practice for determining the admissibility of proffered co-conspirator statements consists of a pre-trial hearing at which time the court can make determinations as to whether or not the prerequisites to admissibility are likely to be met by the government at trial. U.S. v. Kopituk, 690 F.2d 1 289, 1 324 (11th Cir. (Fla.) 1982) cert. denied 463 U.S. 1209 (1983); U.S. v. James, 590 F.2d 575, 581-82 (5th Cir. (Ga.) 1978) cert. denied 442 U.S. 917 (1979). In order for this desirable practice to be effective, disclosure of co-conspirator statements which the government seeks to introduce at trial must be made sufficiently ahead of the hearing so that the defense is in a position to perform its function in the adversary process of evaluating the sufficiency of the government's offers on the admissibility predicates.
If the government gets the benefit of attributing certain third-party statements to the defendant, it should have the corresponding obligation to disclose those statements to the defense before trial. F. Adoptive Admissions Unlike the situation involved in co-conspirator statements, adoptive admissions are directly attributed to the accused because of his or her own action or inaction at the time statements are made in his or her presence. Accordingly, such statements should be discoverable under F.R.Cr.P. 16(a)(1)(A). Additionally, and independently, any alleged adoptive admissions which the government does not intend to introduce, but which are favorable to the accused, must be disclosed under constitutional principles embraced in the rational of Brady v. Maryland.
G. Ministerial Grand Jury Records
The defendants have the right to challenge the process by which the grand jurors were selected, as well as other ministerial aspects of the grand jury process leading to his or her indictment. For example, if the term of the grand jury expired before it issued the indictment in this case, the indictment would be void.
In order to even evaluate such challenges, defendants need access to the grand jury records. Even members of the general public are entitled to access to ministerial records in the files of the district court. See In re Special Grand Jury (for Anchorage, Alaska), 674 F.2d 778, 780-81 (9th Cir. (Alaska) 1982); accord 2 S. Beale & W. Bryson, Grand Jury Law and Practice, § 7.06 at 30 n.2 (1986). Of course, a defendant has even a stronger need for such access. See U.S. v. Hubbard, 474 F. Supp. 64, 85 (D.C.D.C. 1979) (defendant entitled to grand jury records which had helped her evaluate basis for challenge of grand jury selection and composition).
The court has the discretion to order that all records relating to the grand jury which indicted defendants be made available to the defense including, but not limited to:
1 . Records reflecting beginning and end of the grand jury's term; 2. Records reflecting the days during which the grand jury heard testimony;
3. Records reflecting the manner in which the jury panel is selected;
4. Records reflecting the manner in which grand jurors were selected from the panel;
5. Juror qualification questionnaire;
6. Juror attendance record.
H. Search Warrants, Subpoenas & Supporting
Documents
To the extent not addressed above, defendants are specifically requesting access to any search warrants, subpoenas, and other supporting documentation used to accumulate evidence utilized by the government in procuring the indictment or which the government intends to use at trial. Since defendants have the right to challenge the manner in which evidence was seized, they must have access to this information as well as the information and documents used to obtain any such warrants or subpoenas. Based upon discovery thus far provided, it appears that several search warrants were obtained and it is uncontroverted that numerous subpoenas duces tecum were served upon law offices both inside and outside the state of Alaska.
The only orderly procedure for examining the validity of these warrants and subpoenas and the admissibility of the resulting evidence (if any) begins with disclosure of the warrants and subpoenas to the defense. The alternative is to require multiple evidentiary hearings during the course of the trial which would be incredibly disruptive. The court should order the government to identify all warrants and subpoenas used in connection with the investigation or prosecution in this case and direct the clerk's office to make all such documents and supporting materials
and records available to the defense. In that regard, and pursuant to Criminal Rule 12(d)(2), both defendants hereby request notice of the government's intention to use any evidence that may be subject to a motion to suppress.
DATED this__day of February, 1997.
DILLON & FINDLEY, P.C.
Counsel for Defendant
1. As indicated in previous pleadings, the government has provided in excess of 900 pages of Bates stamped documents and has made available for review and photocopying thousands of documents located at the Federal Bureau of Investigation. To the extent that this discovery motion overlaps that production, a declaration by the government to that effect (as R applies to documentary evidence) will suffice.