U.S. v. WEBB

SIDNEY FITZWATER, District Judge

MEMORANDUM OPINION AND ORDER

Defendant Obriant Webb ("Webb") has filed four discovery motions that the court resolves as follows. I Motion for Discovery and Inspection A Statements of Defendant Webb asks the court to compel the government to disclose copies, transcripts, summaries, and/or government reports or notes of any written or recorded statements, including audio or video recordings, made by the defendant to any person, including persons who are not government agents, that are within the possession, custody, or control of the government, and the substance of any oral statement made by the defendant, whether before or after arrest, to any attorney for the government or to a person known by the defendant to be a government agent or law enforcement officer, including probation, parole, or state police officers, that the government intends to offer in evidence at the trial or that are of any relevance to this prosecution, the substance of any oral statement made to any person that goes to any element of the offense, and the substance of any statements made by the defendant in response to Miranda-type warnings.

He has also filed a motion in limine. The court will decide that motion at the pretrial conference.

The government responds generally that it will comply with its obligations under Fed.R.Crim.P. 16, the Jencks Act, Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and their progeny. It also agrees to permit Webb to inspect, copy, or photograph several categories of evidence that come within the scope of Rule 16 and that would be discoverable under Brady or Giglio. Concerning Webb's specific request for discovery of statements of defendant, the government responds that it will comply with Rule 16, but it objects insofar as Webb's request exceeds the scope of the Rule. It also states that it is unaware of any written statements of Webb but is aware of oral conversations that were recorded, copies of which recordings have been provided to Webb and draft transcripts of which are in the process of being produced.

To the extent Webb's request falls within the scope of Rule 16(a)(1)(B), the Jencks Act, Brady, or Giglio, because the government has agreed to comply with its obligations thereunder, the motion is denied as moot. To the extent his requests exceed what the government is obligated to produce under these authorities, the motion is denied.

Webb also "requests that the government be ordered to render all relevant aid which is reasonably available to ascertain the precise substance of any defendant's statements." Although the government does not specifically object to this particular request, the court denies it as vague and as exceeding the scope of Rule 16. The government must, however, undertake such efforts as are required under Kyles v. Whitley, 514 U.S. 419 (1995), and like authorities so that it complies fully with its obligations under Brady and Giglio.

B Defendant's Prior Criminal Record

Webb requests production of his prior criminal record, including the disposition of cases. The government states that it has provided him a copy of his criminal history report, as has Pretrial Services. It also states that, if it becomes aware of additional information (the disposition of cases not yet disposed of), it will notify Webb. The motion is therefore denied to that extent as moot. Pursuant to Rule 16(a)(1)(D), the court directs the government to comply with the Rule to the extent such compliance exceeds that to which the government has agreed in its response to Webb's motion.

C Coconspirator and Codefendant Statements

Webb requests production of coconspirator and codefendant statements and disclosure by the government of any such statements, including statements that were recorded by video or audio recordings or by any other means by government agents or informants during the investigation and detection of this alleged offense. He also requests the government to indicate the time, place, contents, and means of recording the conversations, and to make available to him complete recordings and transcripts so that he may assess the admissibility of these statements. The government states in response that it will comply with the Jencks Act, Brady, and Giglio. It objects to the extent Webb's request exceeds this agreement. The government also represents that it has provided audio recordings of conversations among conspirators, draft transcripts of most conversations, and DEA 6 Forms that include one codefendant's post- Miranda statements. It agrees to produce any other transcripts or recordings it receives and to make available for review criminal history information that it has in its possession regarding codefendants.

To the extent the government has agreed to the production Webb seeks, the court denies the motion as moot. Insofar as the government has not agreed to the production requested, except to the extent disclosure is required by Brady, Giglio, Rule 16, Rule 26.2, or the Jencks Act, the court denies the motion. Concerning coconspirators, several courts have held that, the fact that a coconspirator's statements are viewed as statements by the defendant under Fed.R.Evid. 801(d)(2)(E), does not make them discoverable under Rule 16(a)(1)(A) or (B). See, e.g., United States v. Tarantino, 846 F.2d 1384, 1418 (D.C. Cir. 1988). Furthermore, the Jencks Act and Rule 16(a)(2) do not provide for pretrial discovery of statements made by prospective witnesses. Webb's request for pretrial disclosure of the coconspirator and codefendant statements to determine admissibility is likewise denied. The admissibility of such statements can be determined at trial and the statements may be considered in light of any other independent evidence. See Bourjaily v. United States, 483 U.S. 171, 180 (1987).

D Informants

Webb requests disclosure of the identity of any informant who was a percipient witness to or participant in the alleged offense. He also moves the court to order the government to (1) provide him with any information necessary to locate or contact any informant, (2) produce any informant for interview by his counsel, and (3) produce the informant at trial upon his request. He also requests any informant's criminal record, any promises of immunity or consideration made, the identification of any informant's prior testimony, evidence of psychiatric treatment of any informant, and any evidence of narcotic habits of any informant. The government responds that it will comply with its obligations under Roviaro v. United States, 353 U.S. 53 (1957), Rule 16, Brady, Giglio, and the Jencks Act, and it objects to the extent Webb's request exceeds these authorities. The government also states that it has served its witness list on defendants, this list includes all witnesses it intends to call at trial, and it is unaware of any promise of immunity or consideration made to any informant who is likely to testify at trial.

Webb's motion is to some extent mooted by the government's response, and it is denied to that extent. It is not clear from the government's response, however, whether there are informants who will not be called as trial witnesses. If there are, the court will follow the balancing test that governs disclosure of an informant's identity. The public interest in providing anonymity to citizens who report criminal activity must be weighed against the defendant's right to prepare a defense. Roviaro, 353 U.S. at 62. The privilege against disclosing informants is thus restricted when it is unfair to the defendant. If information will not reveal the identity of an informant, or the informant's identity is relevant to the defense of the accused, the privilege does not apply. Id. at 60-61.

In applying Roviaro the Fifth Circuit has established a three-part test to determine the applicability of the informant's privilege. See United States v. De Los Santos, 810 F.2d 1326, 1331 (5th Cir. 1987). The court must first consider the level of the informant's participation in the criminal activity. The greater the informant's participation, the greater the appropriateness of disclosure. Second, the court must determine the extent to which disclosure will assist the defense of the accused. Disclosure is not warranted by "`[m]ere conjecture or supposition about the possible relevancy of the informant's testimony.'" Id. (quoting United States v. Gonzales, 606 F.2d 70, 75 (5th Cir. 1979)). Third, the court must also evaluate the government's interest in maintaining the informant's anonymity. The safety of the informant and the informant's future usefulness to authorities are the principal criteria to be considered by the court in this context. Id.

Pursuant to De Los Santos the court will conduct an in camera review of a government written submission concerning the three-prong test. No later than March 7, 2005 the government must either advise the court and Webb in writing that no informant is involved in this case or must disclose ex parte to the court the identity of any informants and must address the reasons on which it relies for nondisclosure. Nothing in this procedure excuses the government from complying with its normal obligations under Brady and Giglio or from complying with all requirements that apply in the event an informant will be used as a trial witness.

E Government Communications to Defendant

Webb requests disclosure of any communications with him undertaken by any government agent, informer, or anyone else acting at the government's direction since the commencement of adversarial proceedings against him. He also requests identification of the individuals involved, the details surrounding the communications, and the statements made. The government states that the only communications occurred before he was represented by counsel, were conducted telephonically, and related to his voluntary surrender. The government also recounts a chance encounter between Webb and government counsel at the courthouse, at which brief greetings were exchanged, and a meeting with Webb and his counsel. Because the government has complied with Webb's request, the court denies the motion as moot.

F Witness Statements

Webb requests that the court compel the government to produce witness statements at least 24 hours before the witness testifies at trial or sentencing, including prior grand jury testimony, prior written statements, witness reports or notes, reports of prior oral statements, and any prosecutor's notes concerning witness statements that have been or may be adopted, approved, or verified by the witness. He also moves the court to compel the government to produce all exculpatory, as well as negative exculpatory, witness statements, any evidence concerning narcotics habits or psychiatric treatment of its witnesses, and the personnel file of any government witnesses.

The government agrees in its response to comply with the Jencks Act, but it objects to the extent Webb's request exceeds this agreement. It states that it has already produced reports from the Drug Enforcement Administration and Dallas Police Department and audio recordings of several conversations between an undercover law enforcement officer and Webb and his coconspirators.

The court orders the government to comply with its obligations under Rule 16, Rule 26.2, Brady, and Giglio. It must, in accordance with the custom in this district, disclose Jencks Act and Rule 26.2 statements no later than the end of the business day that precedes the date on which Webb will begin his cross-examination of a witness. To the extent Webb seeks greater relief, his motion is denied.

G Statements of Individuals Who Will Not be Witnesses

Webb requests disclosure of statements of individuals who will not be witnesses. The government states that it has provided a witness list and that it will comply with the Brady obligations. The government shall comply with Brady and Giglio. To the extent Webb seeks greater relief, his motion is denied.

H Electronic Surveillance

Webb moves for disclosure of electronic surveillance, including logs and transcripts concerning him, any coconspirator, codefendant, or witness, and documents such as Federal Bureau of Investigation "airtels" or interoffice memoranda relating to any monitored conversations. The government states that it will comply with Rule 16 and 18 U.S.C. § 2511, but it objects to the extent Webb seeks greater relief. The government notes that it has already produced nearly all the electronic surveillance in this case and that surveillance that has not been produced will be provided according to Rule 16 and 18 U.S.C. § 2511. The court grants the motion to the extent that the government must comply with the requirements of Brady, Giglio, Rule 16, 18 U.S.C. § 2510 et seq., and the Jencks Act. Otherwise, the motion is denied.

II Request for Notice under Rule 404(b)

Webb requests notice under Rule 404(b) of the government's intent to use evidence of his other crimes, wrongs, or acts and those of all other witnesses. The government agrees in its response to comply with its obligations under Rule 404(b). The government must provide the notice required by Rule 404(b) no later than March 14, 2005.

III Motion for Brady and Giglio Material

Webb moves the court to direct the government to produce nineteen categories (including some sub-categories) of evidence in the possession of the government or its agents that would tend to exculpate him under Brady, or that would impeach government witnesses under Giglio. The government responds generally that it will comply with its obligations under the Jencks Act, Rule 16, Brady, Giglio, and their progeny, and it agrees to do so specifically, in response to this motion. The government objects to the extent the request exceeds these authorities, and it states that it has already provided some discovery and that it will submit to the court for inspection any evidence that it elects not to disclose.

To the extent the government has agreed to the requests that Webb makes and has agreed to comply with its obligations under Brady, and Giglio, the motion is denied as moot; otherwise, the motion is denied as exceeding what is required by these authorities.

IV Motion for Notice of Intention to Use Evidence

Webb moves under Rule 12(b)(4)(B) to require the government to give notice of its intention to offer evidence at trial any evidence that he may be entitled to discover under Rule 16. The government responds that it has already filed and served an exhibit list, that it intends to introduce most, if not all the exhibits so described, and that it may decide to introduce the exhibits during other parts of the trial.

To the extent the government in its response has provided notice under Rule 12(b)(4)(B), the request is denied as moot. Otherwise, to the extent the government has not done so already, it shall comply with its obligations under Rule 12(b)(4)(B) no later than March 7, 2005.

SO ORDERED.