Opinion
CRIMINAL ACTION NO.: 3:14cr41-DPJ-FKB
11-02-2015
UNITED STATES OF AMERICA v. NIKI ANTOINETTE RIVERS
ORDER
This identity-theft case is before the Court regarding Defendant's ore tenus motion for in camera review of witness reports. Defendant stands accused of providing documents to co-conspirators that contained the personal identifying information of numerous patients of the health-care facility where Defendant was formerly employed.
During a hearing on other matters, Defendant expressed concern that the Government may not have produced all witness statements it was required to produce pursuant to the Court's Order Regarding Discovery. See Order [26 ¶ 1(b). That Order required production of Jencks statements and all Brady and Giglio material five days before trial. Id. The Government explained that it had produced all that was required, but that it currently retains interview reports that fall beyond the scope of discovery.
Based on this exchange, the Court requested the reports for in camera review, which it has now concluded. The Government produced reports of four interviews with witness Annette Ford dated June 5, 2012, July 13, 2011, July 15, 2011, and July 8, 2015. It likewise produced three reports regarding interviews with Timothy Benjamin Taylor dated January 29, 2010, August 10, 2010, and July 22, 2014. One of the disputed reports regarding Ford was a standard FBI Form 302 report; the other reports from other agencies generally tracked the same narrative style.
The Jencks Act requires production of witness "statements" after the witness testifies. Id. But "[u]nder the Jencks Act, . . . FBI Forms 302 are only discoverable if they contain a written, signed statement of a government witness, or a 'substantially verbatim recital' of an oral statement made by a government witness." United States v. Williams, 998 F.2d 258, 269 (5th Cir. 1993) (citing 18 U.S.C. § 3500; United States v. Mora et al., 994 F.2d 1129, 1139 (5th Cir. 1993)).
The Jencks Act defines a "statement" in relevant part as:
(1) a written statement made by said witness and signed or otherwise adopted or approved by him; [or] (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 statement . . . .
Having now reviewed the reports, the Court concludes that they are not "statements." Aside from a few damaging quotes attributed to Defendant in Ford's reports, the reports were artfully worded to avoid first person accounts, quotes, or anything else that might sound like a substantially verbatim recital. In addition, none of the reports were signed or adopted by the witness. These facts are like those in United States v. Kizer, where the Fifth Circuit found no error in the trial court's refusal to require production of FBI Form 302 reports. 554 F. App'x 311, 312 (5th Cir. 2014); see also United States v. Pierce, 893 F.2d 669, 675 (5th Cir. 1990) (holding that the FBI Form 302 reports in that case were not discoverable); Williams, 998 F.2d at 269 (same). The reports are not Jencks statements.
That holding does not end the inquiry. "Even though the FBI Forms 302 are not discoverable under the Jencks Act, they would be discoverable if they would be exculpatory . . ., or if they would help the defendant to impeach a government witness." Williams, 998 F.2d at 269 (citing Giglio v. United States, 405 U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83 (1963)). While "the prosecutor is not required to deliver his entire file to defense counsel," he or she must "disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial." United States v. Bagley, 473 U.S. 667, 675-76 (1985).
These questions can be difficult even after a full trial; they become doubly so at this juncture. The Parties have not announced their theories, the Court does not know the universe of evidence that will be introduced at trial, it is not yet known whether the trial testimony will contradict the reports, and the Court has no way of knowing every issue that may become significant. Moreover, the Court cannot solicit the Parties' input because the documents have not been produced. Accordingly, the Court must speculate to some extent as to how Defendant might use the reports if given them.
That said, the Court has seen enough in pre-trial-motion practice to know a few things. First, documents containing personal-identifying information were seized from Taylor's car in January 2010. Some related to a different conspiracy; those from Emory Healthcare relate to these charges. Taylor will apparently link Defendant to the latter. Second, Defendant will dispute any connection to those documents. Third, Taylor suffers some memory loss from a major stroke that occurred after the first two reports were prepared but before the final report. Fourth, Ford is likewise prepared to offer direct evidence of Defendant's alleged involvement. Accordingly, it at least appears that Taylor and Ford are significant witnesses whose credibility will be a central issue.
With those issues in mind, the Court compared the seven reports. On balance, the information is highly inculpatory. But the reports also appear to include information that would at least help the defendant impeach these two key witnesses. For example, Ford's reports include a few minor contradictions that might impact her credibility. But they also include a few more significant contradictions—like the extent of her relationship with Defendant, her ability to positively identify her, and whether the information from this Defendant was actually used. This information has impeachment value.
Taylor's reports also have impeachment value. Significantly, his post-stroke memory and his testimony that Defendant provided the Emory Healthcare documents will be hotly disputed. That makes his pre-stroke statements on the origin of those documents particularly relevant, and it appears that he has not always been consistent on that point. There is also room for impeachment regarding Defendant's role in introducing Taylor to the scheme. Finally, his reports appear to differ from Ford's reports in some respects.
Inconsistent positions taken during interviews can create a duty to disclose where the information would be material. United States v. Campos, 20 F.3d 1171 (5th Cir. 1994) (reversing conviction for Brady violation and finding that inconsistencies in witness's stories were material as to one defendant but not another); see also United States v. Springer, No. CRIM. A. H-14-20-003, 2015 WL 1407915, at *5 (S.D. Tex. Mar. 25, 2015) (holding that reports containing "inconsistent statements of witnesses who will testify at trial . . . should be disclosed under Giglio").
Here, Ford and Taylor's accounts—as memorialized in the reports—were not entirely consistent. And while there may be reasonable explanations for the variances, Defendant is entitled to explore those issues. Given the anticipated significance of these two witnesses and their credibility, along with Taylor's memory loss, denying access to impeachment information runs an unacceptable risk of depriving Defendant of a fair trial. Bagley, 473 U.S. at 676. The documents should be produced.
Although the Court feels compelled to make a record explaining why the reports have Brady or Giglio value, it is reluctant to dig much deeper into contradictions or other ways Defendant might use these documents. --------
Finally, the disclosure of this information at this time will not violate Jencks, but it would deprive Defendant of the five-day review period allowed under the Order Regarding Discovery [26]. Accordingly, Counsel is directed to contact the Courtroom Deputy to set this for expedited telephonic conference to discuss the possibility of a short continuance.
SO ORDERED AND ADJUDGED this the 2th day of November, 2015.
s/ Daniel P . Jordan III
UNITED STATES DISTRICT JUDGE