Opinion
CRIMINAL ACTION NO. 01-282 SECTION "R"(1)
April 8, 2003
ORDER AND REASONS
Before the Court is the appeal of defendants Johnny Davis and Richard Porter from the Magistrate's denial of defendants' discovery request for the government's pretrial disclosure of the identity and statements of witnesses. For the following reasons, the Court DENIES defendants' motion and AFFIRMS the Magistrate's ruling.
Defendants are charged in a multi-count indictment with conspiracy to possess with intent to distribute heroin, conspiracy to use firearms in furtherance of the heroin conspiracy, and crimes relating to the heroin conspiracy, including homicide. Defendants seek this Court's review of the magistrate's denial of their broad discovery request for all witness identities and statements pursuant to the Fifth and Fourteenth Amendments, Rule 16 of the Federal Rules of Criminal Procedure, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763 (1972), and Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555 (1995).
Because defendants' motion for discovery was a pretrial matter referred to Magistrate Judge Shushan pursuant to 28 U.S.C. § 636(b)(1)(A), this Court reviews the Magistrate's decision under a "clearly erroneous or contrary to law" standard. See 18 U.S.C. § 636(b)(1)(A) (1997). Thus, for defendants to prevail, they must show not that the Magistrate could have exercised her discretion and granted their discovery requests, but rather that defendants are entitled to the discovery they seek as a matter of law. Defendants have not met this burden.
18 U.S.C. § 636(b)(1)(A) provides:
(A) a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate's order is clearly erroneous or contrary to law.
Federal Rule of Criminal Procedure 16 requires the government to provide pretrial discovery to the defendant. Rule 16 provides,
(C) Documents and tangible objects. Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and 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 belong to the defendant.
FED. R. CRIM. P. 16(a)(1). Rule 16, however, expressly incorporates the limitations on pretrial discovery established by the Jencks Act:
(2) Information not subject to disclosure. Except as provided in paragraphs (A), (B), (D), and (E) of subdivision (a)(1), 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 other government agents in connection with the investigation or prosecution of the case, or of statements made by the government witnesses or prospective government witnesses except as provided in 18 U.S.C. § 3500.
FED. R. CRIM. P. 16(a)(2). The Jencks Act provides,
In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.18 U.S.C. § 3500(a). The word "statement" includes grand jury testimony. 18 U.S.C. § 3500(e)(3). Further, in capital cases, the government is required to provide the defendant with a list identifying the names and addresses of its witnesses at least three days before trial commences. 18 U.S.C. § 3432.
Defendants have cited no authority for the proposition that the government must disclose witness statements during pretrial discovery, or that the government must disclose statements of witnesses it chooses not to call to the stand. Many circuits have held that, under the Jencks Act, the government has no obligation to disclose the statements of witnesses who do not ultimately testify. See, e.g., United States v. Cadet, 727 F.2d 1453, 1469 (9th Cir. 1984) (citing United States v. Mills, 641 F.2d 785, 789-90 (9th Cir.) (Judge, now Justice, Kennedy), cert. denied, 484 U.S. 832, 108 S.Ct. 107 (1987)) (holding that district court abused its discretion by ordering government to disclose statements of witnesses it did not intend to call); United States v. Short, 671 F.2d 178, 187 (6th Cir. 1982) ("If the government fails to call any of the grand jury witnesses at trial and the defendants are convicted they will be able to rely on the Brady doctrine to argue for reversal claiming that the government has suppressed exculpatory testimony given by these persons before the grand jury"); United States v. Disston, 612 F.2d 1035, 1038 (7th Cir. 1980) ("[The witness's] statements were not producible under [the Jencks Act] because he was not called as a Government witness, a prerequisite to the Act's applicability.") And clearly under the Jencks Act, the government cannot be compelled to disclose the statements of their testifying witnesses until after they testify on direct. 18 U.S.C. § 3500(a).
Although defendants have no grounds to complain that the government has violated their rights to discovery under Rule 16, the Jencks Act, or 18 U.S.C. § 3432, the Court notes that the government has made three helpful responses to defendants' requests. First, well before trial, the government provided defendants with summaries of witness statements of those witnesses it intends to call at trial, as well as redacted police reports. Second, the government has agreed to provide defendants with all Jencks Act material by April 18, 2003 at noon, five days before the start of trial. Finally, the government has agreed to provide defendants with the names and addresses of its witnesses pursuant to 18 U.S.C. § 3432 by April 18, 2003 at noon, along with all the Jencks Act material.
Nor does the Court perceive any requirement that Brady or Giglio material be produced in pretrial discovery. Under Brady v. Maryland, prosecutors have a duty to disclose evidence that is both favorable to the defendant and material to either guilt or punishment. See Brady, 373 U.S. at 87. This includes evidence that would materially impeach a government witness, e.g., by showing bias or interest. See Giglio, 405 U.S. at 154; United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375 (1985). The Fifth Circuit has stated, " Brady is not a discovery rule, but a rule of fairness and minimum prosecutorial obligation." United States v. Beasley, 576 F.2d 626, 630 (5th Cir. 1978) (citing United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392 (1976)). Therefore, Brady "is not a pretrial remedy." See United States v. Garrett, 238 F.3d 293, 303 (5th Cir. 2000) (Fish, J., concurring) (quoting United States v. Scott, 524 F.2d 465, 467 (5th Cir. 1975)). Rather, a Brady violation becomes a concern for courts only after trial, when courts are able to determine whether a nondisclosure deprived a defendant of a fair trial. See id. at 303-04 (citing cases). The Fifth Circuit has therefore held that "the prosecutor's compliance with the Jencks Act provided timely disclosures under Brady." United States v. Campagnuolo, 592 F.2d 852, 860 (5th Cir. 1979) (citing cases). The Fifth Circuit has also held that there was no prejudice to the defendant when the government disclosed Brady information to the defendant during its case-in-chief. See United States v. Neal, 27 F.3d 1035, 1050 (5th Cir. 1994). Lastly, the Fifth Circuit has held that there is no violation of Giglio as long as the evidence is disclosed to the defense before the end of trial. See Hill v. Black, 887 F.2d 513, 517 (5th Cir. 1989), vacated on other grounds by 111 S.Ct. 28 (1990); see also United States v. Martinez-Perez, 941 F.2d 295, 301 (5th Cir. 1991) (reaffirming the Giglio aspect of Hill).
The materiality of the evidence is to be determined cumulatively and not item by item. Kyles, 514 U.S. at 437.
Thus, the Magistrate correctly described the situation before her when she wrote, "The issue is not one of suppression, but of timing. . . ." (Rec. Doc. No. 215 at 3.) Defendants have made no showing of prejudice of a substantial due process character in this case. The government indicates that it is aware of its Brady obligations. It states that it has disclosed all known material exculpatory evidence, or provided notice thereof, to defendants and will continue to do so, with the exception of withholding the identities of witnesses whose safety is at stake until the government must disclose their identities under 18 U.S.C. § 3432. As noted, the government will provide defendants with the names and addresses of its witnesses by April 18, 2003 at noon, along with all Jencks Act material, five days before trial commences.
Defendants have not provided this Court with a viable legal justification for ordering the pretrial discovery of the materials in question, let alone made a showing that it was clearly erroneous as a matter of law for the Magistrate to deny their motion to compel these discovery items. Further, the Court sees no fault in any of the additional legal rationales provided by the Magistrate for denying the discovery materials in question. Accordingly, IT IS ORDERED that defendants' motion for review of Magistrate Judge Sally Shushan's ruling denying their motion for discovery is hereby DENIED and Magistrate Judge Shushan's ruling denying that motion is AFFIRMED.