Opinion
Criminal Action No. 99-20060-01/02-GTV.
June 8, 2000.
Charles R. Harvey, Overland Park, KS; Lance D. Sandage, Independence, MO; John R. Osgood, Lee's Summit, MO, for SCOTT A SHOFLER (1), fka Alex Scott Shofler, defendant.
Steven J Schweiker, Overland Park, KS; Thomas J. Bath, Jr., Overland Park, KS, for DAMION JOHNSON (2), defendant.
Robin D. Fowler, Office of United States Attorney, Kansas City, KS, U.S. Attorney.
MEMORANDUM AND ORDER
The government filed a motion (Doc. 73) in this case asking the court to conduct an in camera review of Bureau of Prisons files relating to Joseph Glenn Smothers, the victim of a homicide at the Leavenworth Penitentiary which the defendants are charged with having committed. The motion was granted by the court at a hearing held on January 18, 2000. The government then delivered the files to the court, and the court has completed its in camera review of the files, which are as follows:
1. Bureau of Prisons Health Record, Volume I, Bates Page Nos. 0000508 through 000844;
2. Bureau of Prisons Health Record, Volume II, Bates Page Nos. 000845 through 001131;
(These files contain reports of psychological studies relating to Joseph Glenn Smothers, the alleged deceased victim of the crime.)
3. Bureau of Prisons Health Record, Volume PCN, Bates Page Nos. 001132 through 001258;
(This file contains prison medical records of Smothers, including medical records in connection with the alleged victim's death.)
4. Inmate Judgment Commitment File, Volume I, Bates Page Nos. 001259 through 001275;
5. Inmate Judgment Commitment File, Volume II, Bates Page Nos. 001276 through 001368.
(These two files contain information relating to the judgment and conviction of the alleged victim, as well as background information on that person. The presentence investigation report concerning Glenn Joseph Smothers is included.)
6. Central File, Joseph Smothers, Bates Page Nos. 001369 through 001554;
(This file contains much of the same materials as in 4 and 5.)
7. SIS File, Joseph Smothers, Volume I, Bates Page Nos. 001555 through 001658;
8. SIS File, Joseph Smothers, Volume II, Bates Page Nos. 001659 through 002030;
9. SIS File, Joseph Smothers, Volume III, Bates Page Nos. 002031 through 002482;
(These files contain records of the investigation into the death of Joseph Smothers conducted at Leavenworth Penitentiary.)
10. Study File, Bates Page Nos. 002483 through 002857; (This file contains the record of the investigation of the underlying offense of kidnaping for which Joseph Smothers was sentenced to imprisonment.)
SIS File, Joseph Smothers, Volume I (number 7 above), contains copies of three letters written by the defendant Damion Johnson to family members. The documents are Bates Page Numbers 001609 through 001615. They are discoverable as statements of the defendant under Fed.R.Crim.P. 16(a)(1)(A). See United States v. Scafe, 822 F.2d 928, 935 (1987). The defendants are entitled to inspect and copy those pages of the files.
After examination of the files submitted by the government for in camera inspection, I have found no Brady or Giglio materials among the documents. Fed.R.Crim.P. 16(a) provides for discovery of evidence from the government by defendants. Authorized discovery includes statements of the defendant (subsection (a)(1)(A)); the defendant's prior criminal record (subsection (a)(1)(B)); documents and tangible objects which are material to the preparation of the defense or intended for use by the government as evidence in chief at trial, or were obtained from or belong to the defendant (subsection (a)(1)(C)); the results or reports of physical or mental examinations, and of scientific tests or experiments which are material to the preparation of the defense or are intended for use by the government as evidence in chief at the trial (subsection (a)(1)(D)); a written summary of the testimony of expert witnesses that the government intends to use during its case-in-chief at trial (subsection (a)(1)(E)). Except as provided in the subsections of Rule 16 just mentioned, the rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by the attorney for the government or any other government agent investigating or prosecuting the case. Nor does the rule authorize the discovery or inspection of statements made by government witnesses or prospective government witnesses except as provided in 18 U.S.C. § 3500. The government has stated that it does not intend to use any of the materials or documents contained in the files inspected by the court in its case in chief at trial; neither do any of them fall into any other of the categories of discoverable materials, with the exception of the copies of letters written by the defendant Johnson. Further, the court finds that the materials and documents are not of the degree of materiality to the preparation of the defense to render them discoverable under the rule. Only the statements of the defendant Johnson described above are discoverable.
Brady v. Maryland, 373 U.S. 83, 87-88 (1963).
Giglio v. United States, 405 U.S. 150, 153 (1972).
"Rule 16 does not authorize a blanket request to see the prosecution's file." United States v. Maranzino, 860 F.2d 981, 985 (10th Cir. 1988). "Indeed, internal government documents made in connection with a prosecution are exempt from discovery." Id., (citing Fed.R.Crim.P. 16 Advisory Committee Note.)
"A criminal defendant is entitled to rather limited discovery, with no general right to obtain the statements of the Government's witnesses before they have testified." Degen v. United States, 517 U.S. 820, 825 (1996). Fed.R.Crim.P. 16(a)(2) only authorizes discovery of statements of government witnesses as provided by the Jencks Act, 18 U.S.C. § 3500. United States v. Metropolitan Enterprises, Inc., 728 F.2d 444, 451 (10th Cir. 1984).
Apart from the scope of discovery authorized by Rule 16, the standard of materiality relating to the evidence that must be disclosed by the Government is whether the omission to disclose deprives the defendant of a fair trial as mandated by the Due Process Clause of the Fifth Amendment to the Constitution. United States v. Agurs, 427 U.S. 97, 108 (1972). The omission must be of sufficient significance to result in the denial of a fair trial. Id. This would not include every piece of information that might affect a jury's verdict. Id., at 108-109. "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense."Id., at 109-110. This court takes the view that the same standard applies to establishing materiality under Fed.R.Crim.P. 16.
IT IS, THEREFORE, BY THE COURT ORDERED, that the government shall permit counsel for defendants to inspect and copy three letters written by the defendant Damion Johnson to family members, which are Bates Page Numbers 001609 through 001615, contained in SIS File, Joseph Smothers, Volume I.
The clerk is directed to mail copies of this order to counsel of record.
BY THE COURT IT IS SO ORDERED.