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holding that defendant was not entitled to pretrial disclosure of coconspirators' statements
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Criminal No. 3:04-CR-148-D.
May 18, 2005
MEMORANDUM OPINION AND ORDER
The government and defendant Jeremy Jud Hansen ("Hansen") have each filed pretrial motions that the court addresses in this memorandum opinion and order.
I
The government moves for notice of the defendant's intention to seek the defense of alibi. Fed.R.Crim.P. 12.1(a)(1) provides: "An attorney for the government may request in writing that the defendant notify an attorney for the government of any intended alibi defense. The request must state the time, date, and place of the alleged offense." Rule 12.1(a) (2) states:
Within 10 days after the request, or at some other time the court sets, the defendant must serve written notice on an attorney for the government of any intended alibi defense. The defendant's notice must state: (A) each specific place where the defendant claims to have been at the time of the alleged offense; and (B) the name, address, and telephone number of each alibi witness on whom the defendant intends to rely.
If Hansen has not already served on the government a written notice that complies with Rule 12.1(a)(2), he must do so no later than June 15, 2005.
II
Hansen has filed three motions that the court now addresses.A Motion for Brady and Giglio Material
Hansen moves the court to direct the government to produce nineteen categories (including some sub-categories) of evidence in the possession of the government or its agents that would tend to exculpate him under Brady v. Maryland, 373 U.S. 83 (1963), or that would impeach government witnesses under Giglio v. United States, 405 U.S. 150 (1972). The government responds that it will fully comply with its obligations under Fed.R.Crim.P. 16, the Jencks Act, Brady, Giglio, and their progeny. It also responds to each of the categories, identifying what it will produce, and stating that, if material arguably is subject to disclosure but the government declines to do so, it will provide the material to the court for inspection. To the extent Hansen's request exceeds that to which the government has agreed, it objects to the motion.
To the extent the government has agreed to the requests that Hansen makes and has agreed to comply with its obligations under Rule 16, the Jencks Act, Brady, and Giglio, the motion is denied as moot; otherwise, the motion is denied as exceeding what is required by these authorities.
B Motion for Discovery and Inspection 1 Statements of Defendant
Hansen asks the court to compel the government to disclose copies, transcripts, summaries, and/or government reports or notes of any written or recorded statements, including audio or video recordings, made by the defendant to any person, including persons who are not government agents, that are within the possession, custody, or control of the government, and the substance of any oral statement made by the defendant, whether before or after arrest, to any attorney for the government or to a person known by the defendant to be a government agent or law enforcement officer, including probation, parole, or state police officers, that the government intends to offer in evidence at the trial or that are of any relevance to this prosecution, the substance of any oral statement made to any person that goes to any element of the offense, and the substance of any statements made by the defendant in response to Miranda-type warnings.
The government responds that it will comply with its obligations under Rule 16, the Jencks Act, Brady, Giglio, and their progeny. It also agrees to permit Hansen to inspect, copy, or photograph several categories of evidence that come within the scope of Rule 16 and Rule 12(b)(4). Concerning Hansen's specific request for discovery of statements of defendant, the government responds that it will comply with Rule 16, but it objects insofar as Hansen's request exceeds the scope of the Rule. It also states that it is unaware of any written statements of Hansen but is aware of an oral confession that Hansen gave Houston police concerning the December 16, 2003 robbery.
To the extent Hansen's request falls within the scope of Rule 16(a)(1)(B), the Jencks Act, Brady, or Giglio, because the government has agreed to comply with its obligations thereunder, the motion is denied as moot. Insofar as the government has made a required disclosure in its response to Hansen's motion, the motion is likewise denied as moot. To the extent his requests exceed what the government is obligated to produce under these authorities, the motion is denied.
Hansen also "requests that the government be ordered to render all relevant aid which is reasonably available to ascertain the precise substance of any defendant's statements." Although the government does not specifically object to this particular request, the court denies it as vague and as exceeding the scope of Rule 16. The government must, however, undertake such efforts as are required under Kyles v. Whitley, 514 U.S. 419 (1995), and like authorities so that it complies fully with its obligations under Brady and Giglio.
2 Defendant's Prior Criminal Record
Hansen requests production of his prior criminal record, including the disposition of cases. The government states that it has complied with this request by providing him a copy of his criminal history report, as has Pretrial Services. It also states that there are a few charges against Hansen for which the dispositions are unknown, and that, if it becomes aware of additional information, it will notify Hansen. The motion is therefore denied to that extent as moot. Pursuant to Rule 16(a)(1)(D), the court directs the government to comply with the Rule to the extent such compliance exceeds that to which the government has agreed in its response to Hansen's motion.3 Coconspirator and Codefendant Statements
Hansen requests production of coconspirator and codefendant statements and disclosure by the government of any such statements, including statements that were recorded by video or audio recordings or by any other means by government agents or informants during the investigation and detection of this alleged offense and conspiracy, regardless whether the government intends to introduce these statements at trial. He also requests the government to indicate the time, place, contents, and means of recording the conversations, and to make available to him complete recordings and transcripts so that he may assess the admissibility of these statements. The government states in response that it will comply with the Jencks Act, Brady, and Giglio and their progeny. It objects to the extent Hansen's request exceeds this agreement.
To the extent the government has agreed to the production Hansen seeks, the court denies the motion as moot. Insofar as the government has not agreed to the production requested, except to the extent disclosure is required by Brady, Giglio, Rule 16, Rule 26.2, or the Jencks Act, the court denies the motion. Concerning coconspirators, several courts have held that the fact that a coconspirator's statements are viewed as statements by the defendant under Fed.R.Evid. 801(d)(2)(E) does not make them discoverable under Rule 16(a)(1)(A) or (B). See, e.g., United States v. Tarantino, 846 F.2d 1384, 1418 (D.C. Cir. 1988). Furthermore, the Jencks Act and Rule 16(a)(2) do not provide for pretrial discovery of statements made by prospective witnesses. Hansen's request for pretrial disclosure of the coconspirator and codefendant statements to determine admissibility is likewise denied. The admissibility of such statements can be determined at trial and the statements may be considered in light of any other independent evidence. See Bourjaily v. United States, 483 U.S. 171, 180 (1987).
4 Informants
Hansen requests disclosure of the identity of any informant who was a percipient witness to or participant in the alleged offense. He also moves the court to order the government to (1) provide him with any information necessary to locate or contact any informant, (2) produce any informant for interview by his counsel, and (3) produce the informant at trial upon his request. He also requests any informant's criminal record, any promises of immunity or consideration made, the identification of any informant's prior testimony, evidence of psychiatric treatment of any informant, and any evidence of narcotic habits of any informant. The government responds that it will comply with its obligations under Roviaro v. United States, 353 U.S. 53 (1957), Rule 16, Brady, Giglio, and the Jencks Act, and it objects to the extent Hansen's request exceeds these authorities. The government also states that it has served its witness list on defendants, this list includes all witnesses it intends to call at trial, and it is unaware of any promise of immunity or consideration made to any informant who is likely to testify at trial.
Hansen's motion is to some extent mooted by the government's response, and it is denied to that extent. It is not clear from the government's response, however, whether there are informants who will not be called as trial witnesses. If there are, the court will follow the balancing test that governs disclosure of an informant's identity. The public interest in providing anonymity to citizens who report criminal activity must be weighed against the defendant's right to prepare a defense. Roviaro, 353 U.S. at 62. The privilege against disclosing informants is thus restricted when it is unfair to the defendant. If information will not reveal the identity of an informant, or the informant's identity is relevant to the defense of the accused, the privilege does not apply. Id. at 60-61.
In applying Roviaro the Fifth Circuit has established a three-part test to determine the applicability of the informant's privilege. See United States v. De Los Santos, 810 F.2d 1326, 1331 (5th Cir. 1987). The court must first consider the level of the informant's participation in the criminal activity. The greater the informant's participation, the greater the appropriateness of disclosure. Second, the court must determine the extent to which disclosure will assist the defense of the accused. Disclosure is not warranted by "`[m]ere conjecture or supposition about the possible relevancy of the informant's testimony.'" Id. (quoting United States v. Gonzales, 606 F.2d 70, 75 (5th Cir. 1979)). Third, the court must also evaluate the government's interest in maintaining the informant's anonymity. The safety of the informant and the informant's future usefulness to authorities are the principal criteria to be considered by the court in this context. Id.
Pursuant to De Los Santos the court will conduct an in camera review of a government written submission concerning the three-prong test. No later than June 15, 2005 the government must either advise the court and Hansen in writing that no informant is involved in this case or must disclose ex parte to the court the identity of any informants and must address the reasons on which it relies for nondisclosure. Nothing in this procedure excuses the government from complying with its normal obligations under Brady and Giglio or from complying with all requirements that apply in the event an informant will be used as a trial witness.
5 Government Communications to Defendant
Hansen requests disclosure of any communications with him undertaken by any government agent, informer, or anyone else acting at the government's direction since the commencement of adversarial proceedings against him. He also requests identification of the individuals involved, the details surrounding the communications, and the statements made. The government states that, since the instigation of adversarial proceedings, there have been no communications between it and Hansen. In view of the government's response to Hansen's request, the court denies the motion as moot.
6 Witness Statements
Hansen requests that the court compel the government to produce witness statements at least 24 hours before the witness testifies at trial or sentencing, including prior grand jury testimony, prior written statements, witness reports or notes, reports of prior oral statements, and any prosecutor's notes concerning witness statements that have been or may be adopted, approved, or verified by the witness. He also moves the court to compel the government to produce all exculpatory, as well as negative exculpatory, witness statements, any evidence concerning narcotics habits or psychiatric treatment of its witnesses, and the personnel file of any government witnesses.
The government agrees in its response to comply with the Jencks Act, but it objects to the extent Hansen's request exceeds this agreement. It states that it has already produced reports from the Federal Bureau of Investigation and reports detailing a robbery Hansen committed in Houston.
The court orders the government to comply with its obligations under Rule 16, Rule 26.2, Brady, and Giglio. It must, in accordance with the custom in this district, disclose Jencks Act and Rule 26.2 statements no later than the end of the business day that precedes the date on which Hansen will begin his cross-examination of a witness. To the extent Hansen seeks greater relief, his motion is denied.
7 Statements of Individuals Who Will Not be Witnesses
Hansen requests disclosure of statements of individuals who will not be witnesses. The government states that it has provided a witness list and that it will comply with the Brady obligations. The government shall comply with Brady and Giglio. To the extent Hansen seeks greater relief, his motion is denied.
8 Electronic Surveillance
Hansen moves for disclosure of electronic surveillance, including logs and transcripts concerning him, any coconspirator, codefendant, or witness, and documents such as Federal Bureau of Investigation "airtels" or interoffice memoranda relating to any monitored conversations. The government states that it will comply with Rule 16 and 18 U.S.C. § 2511, but it objects to the extent Hansen seeks greater relief. The court grants the motion to the extent that the government must comply with the requirements of Brady, Giglio, Rule 16, 18 U.S.C. § 2510 et seq., and the Jencks Act. Otherwise, the motion is denied.III Request for Notice under Rule 404(b)
Hansen requests notice under Fed.R.Evid. 404(b) of the government's intent to use evidence of his other crimes, wrongs, or acts and those of all other witnesses. The government states that, although it maintains that the evidence it intends to introduce is not within the ambit of Rule 404(b), out of an abundance of caution it provided Hansen notice on December 29, 2004. To the extent the government has not provided notice required by Rule 404(b), it must do so no later than June 15, 2005.
SO ORDERED.