Opinion
No. CR 12-00119 SI
06-30-2014
ORDER RE MOTION FOR
PRODUCTION OF COPIES OF ROUGH
NOTES
Defendants have moved for production of copies of agents' notes of interviews. The motion is DENIED at this time.
Defendants move the Court for an order requiring the government to produce rough notes made by FBI agents, and other agents of the Department of Justice or Department of Homeland Security, created during interviews of potential government witnesses in connection with the investigation of this case. See Dkt. No. 1126. Defendants argue that the notes are necessary for effective cross-examination and will serve as "an aid in the search for truth." Id. at 2.
The government is generally not required to turn over an agent's rough notes. For example, rough notes are not considered Jencks Act material. See United States v. Reed, 575 F.3d 900, 921 (9th Cir. 2009) ("[O]nly the formal interview report, through which the agent intends to communicate to others, will be a 'statement' under the Jencks Act.") (quoting United States v. Griffin, 659 F.2d 932, 938 n.4 (9th Cir. 1981)). Moreover, rough notes are only Brady material if they contain material exculpatory statements.
The Court must decide whether rough notes should be turned over to a defendant on a case-by-case basis. See United States v. Pisello, 877 F.2d 762, 768 (9th Cir. 1989). Where the substance of the rough notes has been memorialized in a formal memorandum, the government is not required to turn over the rough notes unless the defendant can demonstrate that the notes contained exculpatory information, or information that might impact the outcome of the trial. Id.
The Court finds that it would be inappropriate to order the government to produce the agents' rough notes under the facts of this case. There is no indication that the rough notes contain Jencks Act or Brady material, or that they are inconsistent with the agents' formal reports in a manner that might ultimately impact the outcome of the trial.
Defendants argue that possession of the rough notes is necessary for effective cross examination of the law enforcement witnesses. "The Sixth Amendment does not guarantee that a defendant has all material that he seeks to impeach a witness." United States v. Williams, 291 F.3d 1180, 1191 (9th Cir. 2002), overruled on other grounds by United States v. Gonzales, 506 F.3d 940 (9th Cir. 2007). Instead, "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20 (1985).
The government states that it maintains a copy of the rough notes and is happy for counsel to examine the rough notes at the United States Attorney's Office. The Court finds that this is more than sufficient to guarantee defendants the opportunity for effective cross examination of the law enforcement witnesses.
Accordingly, the Court DENIES defendants' motion for production of the agents' rough interview notes. This Order resolves Docket No. 1126.
IT IS SO ORDERED.
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SUSAN ILLSTON
UNITED STATES DISTRICT JUDGE