Opinion
CASE NO. 4:01 CR 207
January 14, 2002
ORDER REGARDING DISCOVERY
Before the Court is Defendant Traficant's Second Motion for Disclosure of Brady Material. (Docket # 116). The government has responded to the motion. (Docket # 123).
Defendant Traficant seeks disclosure of the following materials: (1) all evidence to which Defendant Traficant is entitled under Brady v. Maryland; (2); "specific details of the Government's behavior regarding each cooperating witness," including "t[h]reats of prosecution, individual investigations, settlement agreements, plea agreements, draft plea agreements, [and] letters of cooperation"; (3) any surveillance tapes, whether or not the government intends to use them at trial; and (4) any authorization requests for electronic surveillance.
ANALYSIS
As the Court explained in its 9 October 2001 order regarding discovery, there are constitutional principles, cases, statutes, and rules that require the government to produce certain discovery materials. Federal Rule of Criminal Procedure 16(a)(1) requires the government to disclose (upon the request of the defendant) statements of the defendant, the defendant's prior criminal record, certain documents and tangible objects, certain reports of examinations and tests, and written summaries of the testimony of expert witnesses to be used in the government's case-in-chief In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court explained that due process requires the government to produce all evidence, in the possession, custody, or control of the government, that is both exculpatory as to the charges in the indictment and material to guilt or to punishment. Giglio v. United States, 405 U.S. 150 (1972), compels the government to turn over evidence, in the possession, custody, or control of the government, which serves to impeach the credibility of government witnesses. The Jencks Act, 18 U.S.C. § 3500, requires the government to produce statements, in its possession, custody, or control, made by its witnesses that relate to the subject matter of their testimony.
Materials known or accessible to the government with due diligence are treated as if they are in the possession, custody, or control of the government in the context of criminal discovery.
Defendant Traficant is not entitled to discovery beyond that which is required by these constitutional principles, cases, statutes, and rules. As the Supreme Court explained in United States v. Bagley, 473 U.S. 667, 675 (1985),
The Brady rule is based on the requirement of due process. Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur. Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.
A defendant, therefore, is not entitled to government production of material merely because it is helpful or useful in his defense. See United States v. Corrado, 227 F.3d 528, 539 (6th Cir. 2000).
Defendant Traficant seeks all evidence to which he is entitled underBrady. In its response to his motion, the government represents that it "has complied with its Brady requirements." (Docket # 123 at 2). Defendant Traficant has made no showing that the government has not met its Brady obligations. Thus, the Brady materials sought by Defendant Traficant appear to be in his possession already.
Defendant Traficant also requests "specific details of the Government's behavior regarding each cooperating witness," including "t[h]reats of prosecution, individual investigations, settlement agreements, plea agreements, draft plea agreements, [and] letters of cooperation." (Docket # 116 at 1, 2). Rule 16 does not require the government to produce any of these items. To the extent that any of these items are exculpatory or can be used to impeach the credibility of government witnesses, the government must produce them "in sufficient time to permit the defendant to make effective use of the material at trial." United States v. Presser, 844 F.2d 1275, 1284 (6th Cir. 1988). The government represents that it will "produce such materials to Congressman Traficant shortly before each witness testifies." (Docket No. # 123 at 2). To the extent that Defendant Traficant requests more than the evidence that is exculpatory or serves to impeach government witnesses' credibility,Brady and Giglio do not provide for that discovery.
Defendant Traficant seeks the production of any surveillance tapes, whether or not the government intends to use them at trial. The government represents that it "has produced all Rule 16 materials, including . . . all tapes that it intends to introduce in evidence at trial." (Docket # 123 at 3). Defendant Traficant is not entitled to surveillance tapes, if any, that the government does not intend to use at trial unless they are exculpatory or can be used to impeach the credibility of government witnesses. Defendant Traficant has made no such showing.
Finally, Defendant Traficant believes that he is entitled to any authorization requests for electronic surveillance. The Court addressed this very issue in its 9 October 2001 discovery order:
Defendant Traficant makes no showing that he is entitled to these materials and has provided no legal authority that entities him to them. Because the government did not seek any electronic surveillance under Title III, no disclosure under 18 U.S.C. § 2518 (9) is required. Federal Rule of Criminal Procedure 16 (a)(2) exempts the requests and applications from discovery under Rule 16 to the extent that they are internal government documents: "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 any other government agent investigating or prosecuting the case." Based on his description of them, the requested items do not appear to be material and exculpatory or related to the credibility of government witnesses. of course, if they are discoverable under Brady or Giglio (and the defendant has made no showing to this effect) the government is obligated to produce them "in sufficient time to permit the defendant to make effective use of that material at trial." United States v. Presser, 844 F.2d 1275, 1284 (6th Cir. 1988). Otherwise, the defendant is not entitled to these items.
(Docket # 59 at 4-5). This Court is aware of nothing that has changed since 9 October 2001 to alter this analysis.
CONCLUSION
To the extent that Defendant Traficant's second discovery motion asks for materials that already have been turned over to him by the government, the motion is denied as moot. To the extent that his motion asks for materials to which the defendant is not entitled, the motion is denied. To the extent that Defendant Traficant's motion requests immediate production of materials to which he is or may be entitled underBrady and Gigilo, the motion is denied. To the extent that his motion requests production, at the appropriate times, of materials to which he is entitled under Brady and Giglio, the defendant's motion is denied as premature but may be renewed by the defendant if, in fact, the government does not produce the materials at the appropriate times.
IT IS SO ORDERED.