United States District Court, Middle District of Pennsylvania
August 15, 2000
UNITED STATES OF AMERICA
DAVID M. GRIGGS, A/K/A DAVID BRIGGS, A/K/A DAVID GREGGS, A/K/A JAMES BROOK, A/K/A DAVID DRUMMOND, AND ERIC SPENCER SAUNDERS, A/K/A ERIC SPENCER, DEFENDANTS.
The opinion of the court was delivered by: McCLURE, District Judge.
On March 8, 2000, a grand jury sitting in the Middle District
of Pennsylvania returned an indictment charging defendants David
M. Griggs and Eric Spencer Saunders with possession with intent
to distribute in excess of 50 grams of cocaine base (crack
cocaine), in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii).
Both defendants entered pleas of not guilty at arraignment on
March 29, 2000 (Griggs), and April 11, 2000 (Saunders). Jury
selection currently is scheduled for September 6, 2000.
Before the court is a motion by Saunders to compel discovery. A
pending motion by Saunders to suppress evidence will be addressed
by separate order, an evidentiary hearing on the motion having
been held August 11, 2000.
I. STATEMENT OF FACTS
Because this is a criminal matter, of course, no record has
been created from which the court may recite established
facts.*fn1 The following facts are presented in the parties'
briefs and are set forth only for the purpose of placing the
legal discussion into context. Factual matters relating to the
issue of probable cause are omitted.
On February 29, 2000, at approximately 9:15 p.m., Corporal
Terrance Jankouskas of the Pennsylvania State Police was
patrolling Interstate Highway 80 in Luzerne County, Pennsylvania.
He conducted a traffic stop of a vehicle driven by Saunders with
Griggs, the owner, in the passenger seat. After obtaining consent
to search the vehicle, Jankouskas found a quantity of crack
cocaine hidden in a hoagie*fn2 wrapper. Saunders and Griggs were
arrested and given their Miranda warnings. Saunders admitted to
driving Griggs to Philadelphia to get the crack and to being a
user himself. At the Hazleton State Police Barracks, Saunders
signed a written waiver of his Miranda rights, then gave a full
statement inculpating himself. According to the government, he
admitted to having transported crack for Griggs on previous
occasions and to knowing that the crack was in the vehicle on
On May 24, 2000, counsel for Saunders was given copies of the
relevant State Police report concerning the instant charges,
copies of a laboratory report showing that 82.8 grams of crack
was found, and the substance of all statements of the defendant.
The notes made by the interrogating officers were not provided,
II. DISCOVERY OF ITEMS SOUGHT
Saunders seeks three items or classes of items: a written
warning issued after the traffic stop by the arresting officer;
information relating to open case files and investigations which
are referenced in the police reports provided in discovery; and
handwritten notes of the interview of Saunders following his
The government indicates in its brief in opposition to the
motion to compel that the written warning relating to the traffic
stop has been provided, and, indeed, the same was presented as
the government's first exhibit at the suppression hearing. This
request is therefore moot.
Saunders cites no authority for the proposition that he is
entitled to discovery of investigative reports generally, and we
are aware of none. That request will be denied.
The government opposes disclosure of the rough notes of
interview because it already has provided a copy of a typewritten
version of the statement prepared from the rough notes. The
governing rule provides in part:
Upon request of a defendant the government must
disclose to the defendant and make available for
inspection, copying, or photographing: . . . that
portion of any written record containing the
substance of any relevant oral statement made by the
defendant whether before or after arrest in response
to interrogation by any person then known to the
defendant to be a government agent; . . .
Fed.R.Crim.P. 16(a)(1)(A). The statement which would be contained
in the rough notes was made to a Trooper with the Pennsylvania
State Police, not a "government agent." See generally United
States v. Brazel, 102 F.3d 1120, 1150 (11th Cir.) (evidence
possessed by local law enforcement offices not in possession of
"government"), cert. denied, 522 U.S. 822, 118 S.Ct. 78, 79,
139 L.Ed.2d 37 (1997); United States v. Ramos, 27 F.3d 65,
71-72 (3d Cir. 1994) (municipal police officers not federal
agents for purposes of rule requiring preservation of rough notes
of interview); Fed.R.Crim.P. 54(c) ("attorney for the government"
refers to Attorney General, U.S. Attorney, and their assistants,
and attorneys authorized to act on behalf of territories);
18 U.S.C. § 6 (for purposes of Title 18, "agency" refers to
department, independent establishment, etc., of the United
States). But see United States v. Burns,
15 F.3d 211, 214 (1st Cir. 1994) (noting in dicta that a
"government agent" would include persons with criminal law
enforcement responsibilities, not limited to federal officers;
the latter portion of the definition is dicta because the agent
in question was a Postal Service employee). While it is not clear
that handwritten notes of an interview must be disclosed under
Rule 16(a), as opposed to Brady v. Maryland, see United States
v. Coe, 220 F.3d 573, 583 (7th Cir. 2000) (rough notes need not
be provided under Rule 16 if government provides written report
containing all information in agent's notes), it is clear that
Saunders would not have known that the State Troopers were agents
or potential agents of the federal government at the time that he
gave the statement. Cf. United States v. Bailey, 123 F.3d 1381,
1399 (11th Cir. 1997) (oral statement not subject to disclosure
because defendant did not know that person to whom he gave
statement was a government agent).
We believe that, at a minimum, the "agent" must be (1) an agent
employed by a federal entity, (2) a person acting on behalf of a
federal entity such as a confidential informant, or (3) a person
allied with the prosecution once a federal investigation or
prosecution commences, such as a state officer working on a joint
task force or with the U.S. Attorney's Office. Since, at the time
that Saunders' statement was given, the Troopers did not fit any
of these descriptions, they were not "government agents."
We are constrained to note, however, the fundamental unfairness
which the operation of Rule 16(a)(1)(A) works in this case. If
Saunders had made his statement to a DEA agent or an FBI agent,
the notes likely would be discoverable, despite Coe, because
the language of the rule is to the effect that any written
record of an oral statement by the defendant to a known
government agent must be disclosed. See United States v. Fritz,
No. 4:CR-99-0042 (M.D.Pa. Aug. 9, 1999) (Muir, J.).*fn3 It is
only because Saunders' statement was made to a state law
enforcement officer that the notes are not discoverable.
In addition to that unfairness, there is the likelihood that
the rough notes contain impeachment material. See Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)
(government must disclose evidence which is exculpatory and
material to the defense); United States v. Bagley,
473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (impeachment evidence
is Brady material). In Ramos, the Third Circuit recognized
the value of rough notes as impeachment material. 27 F.3d at 70.
See also United States v. Pelullo, 105 F.3d 117, 122 (3d Cir.
1997). However, it stopped short of holding that rough notes must
be presumed to constitute Brady material, instead concluding
that the defendant in that case had failed to demonstrate the
exculpatory nature of destroyed notes, and that concluding that
the notes were Brady material was speculation. Ramos at 71.
The problem here is that the court has no opportunity to
undertake the usual Brady analysis, i.e. to consider whether
the questioned evidence would have been favorable to the defense
and whether there is a reasonable probability that, had the
evidence been disclosed to the defense, the outcome of the trial
would have been different. Pelullo at 123. See also United
States v. Kimssy, No. 4:CV-99-0252, slip op. at 5 (M.D.Pa. May
17, 2000) (McClure, J.; noting difficulty of reviewing pre-trial
motion for Brady material due to lack of context; citing
Strickler v. Greene, 527 U.S. 263, 266, 119 S.Ct. 1936, 144
L.Ed.2d 286 (1999)). We have not been provided with a copy of the
rough notes and we do
not know the defense theory of the case (to determine the
impeachment value or otherwise exculpatory nature of the notes),
nor have we heard the other evidence in the case (to determine
the materiality of the notes).
Also, we question our authority to order disclosure of
potential Brady material under these circumstances, since the
initial decision regarding whether to make such disclosure rests
with the government.
The Third Circuit appears to take a more restrictive approach
to discovery in criminal matters than other Courts of Appeals. In
Ramos, the Third Circuit pointed out that Rule 16 delineates
the categories of material which are discoverable, supplemented
only by statutory pronouncements and the Due Process Clause.
Ramos at 68.
In contrast, the Fifth Circuit has recognized an inherent
authority on the part of a district court to take actions which
are "reasonably useful to achieve justice." United States v.
Webster, 162 F.3d 308, 339 (5th Cir. 1998) (citation omitted),
cert. denied, ___ U.S. ___, 120 S.Ct. 83, 145 L.Ed.2d 70
(1999). This power would include the administration of criminal
discovery. Id. While a district court could not exercise this
power in contravention of a rule, statute, or constitutional
provision, it could exercise its power in a manner consistent
with such authorities. Id. (citing Fed.R.Crim.P. 57(b)). The
Fifth Circuit also pointed out that federal courts have
"supervisory powers" to "formulate procedural rules not
specifically required by the Constitution or the Congress . . .
to preserve judicial integrity by ensuring that a conviction
rests on appropriate considerations validly before the jury . .
." Id. (quoting United States v. Hasting, 461 U.S. 499, 505,
103 S.Ct. 1974, 76 L.Ed.2d 96 (1983)).
Given the limiting language in Ramos, it seems unlikely that
the Third Circuit would recognize as broad an authority to
regulate discovery or countenance a wide-ranging exercise of any
inherent authority on the part of the district courts in such
matters. However, we think that the language of Rule 57(b) does
give some authority to permit discovery not specifically required
by Rule 16.
We emphasize, however, that our holding is limited. We have
taken what may be considered a narrow view of "government agent"
as that term is used in Rule 16(a)(1)(A). Because of that view,
this defendant is not entitled under Rule 16 to discovery
material which would be available to other defendants in similar
situations, with the only difference being the employer of the
person to whom a statement is given. That is, another defendant
may be arrested in the same manner as Saunders, be charged with
the same crime as Saunders, give the same statement in response
to the same questions during interrogation, and have the
arresting agent take the same notes, and yet the notes are
discoverable in one case and not the other. In addition, the
notes are a matter of considerable importance to a defendant,
given the potential (actually, likelihood) that they constitute,
or at least contain, Brady material.
Thus, our conclusion that the notes should be the subject of
discovery is more than merely holding that ordering the notes is
consistent with and does not violate the Federal Rules of
Criminal Procedure and the Constitution. We believe that ordering
disclosure of the notes is necessary to effectuate the purpose of
Rule 16(a)(1)(A)*fn4 and to prevent a likely Brady problem, in
circumstances which are unfair on their face. It is only under
such conditions that we believe a limited exercise of our
limited authority is appropriate,
and this order should not be construed as broadening discovery in
any significant way.
Saunders' request for the rough notes of the interrogation by
the Pennsylvania State Police after he was arrested on February
29, 2000, will be granted.
An order consistent with this memorandum will issue.
For the reasons stated in the accompanying memorandum, IT IS
1. Defendant Eric Spencer Saunders' motion (record document no.
31) to compel discovery is granted in part and denied in part.
2. The motion insofar as it constitutes a request for discovery
of the written warning issued by the arresting officer on
February 29, 2000, is denied as moot.
3. The motion insofar as it constitutes a request for discovery
of investigative reports relating to other matters is denied.
4. The motion insofar as it constitutes a request for discovery
of the written notes taken by the officer or officers who
interrogated Saunders on February 29, 2000, otherwise denominated
the officers' "rough notes," is granted.
5. The government shall provide copies of the officers' rough
notes, or shall make the rough notes available for inspection and
copying by counsel for Saunders, within fifteen days from the
date of this order.
6. The government may redact from the rough notes any material
that is not the substance of any relevant oral statement by