The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendants' Joint Defense Motion to Compel Access to Witnesses (ECF No. 779), and the Government's response thereto (ECF No. 880).*fn1 For the following reasons, Defendants' Motion will be granted in part and denied in part.
On May 9, 2012, a federal grand jury returned a seventeen-count Fourth Superseding Indictment (the "Indictment") charging Defendants Kaboni Savage, Robert Merritt, Steven Northington, and Kidada Savage with conspiracy to participate in the affairs of a racketeering ("RICO") enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1) and other related crimes. (Fourth Superseding Indictment, ECF No. 480.)*fn3 In addition to the RICO charge, Savage was charged with twelve counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Counts 2-7, 10-15); tampering with a witness, in violation of 18 U.S.C. § 1512(a) (Count 8)*fn4 ; conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count 9); retaliating against a witness, in violation of 18 U.S.C. § 1513(a) (Count 16); and using fire to commit a felony, in violation of 18 U.S.C. § 844(h)(1) (Count 17). (Id.) In addition to the RICO conspiracy count, Merritt was charged on Counts 9 through 17; Northington was charged on Counts 5, 7 and 8; and Kidada was charged on Counts 10 through 17. (Id.)*fn5 On March 14, 2011, the Government filed a notice of intent to seek the death penalty against Savage, Merritt, and Northington. (ECF Nos. 196, 197, 198.) The Government does not seek the death penalty against Kidada.
The charges against Defendant relate to a long-standing RICO conspiracy involving drug trafficking, murder, and witness intimidation. The Government alleges that all four Defendants were members of a regional criminal organization, which was based in North Philadelphia and was known as the Kaboni Savage Organization ("KSO"). From late 1997 through April 2010, members of the KSO conspired and agreed to distribute large quantities of controlled substances, to commit murder and arson, and to tamper with, and retaliate against, witnesses who had testified, or were about to testify, against the racketeering enterprise or its members. It is alleged that the KSO was committed to maintaining, preserving, protecting and expanding its power, territory, and profits by tampering with and retaliating against Government witnesses and their families through the use of threats, intimidation, violence, and murder.
On December 3, 2012, Kidada Savage filed the instant Joint Defense Motion to Compel Access to Witnesses on behalf of all Defendants. (Defs.' Mot., ECF No. 779.) On January 4, 2013, the Government filed a response in opposition to the Motion. (Gov't's Resp., ECF No. 880.) Trial is presently scheduled for February 4, 2013. (See ECF No. 877.)
Defendants request that the Court compel the Government to make twelve Government witnesses available for interviews by defense counsel. (Defs.' Mot. 2.)*fn6 Although it is not entirely clear, it appears that these twelve witnesses are all currently in protective custody.*fn7 To the extent that any of the witnesses are not in the custody of the Government, Defendants request that the witnesses' last known address be disclosed to defense counsel. (Defs.' Mot. 2.) The Government advised defense counsel that the witnesses do not wish to be interviewed. (Id. at Ex. 2.) Nevertheless, Defendants argue that "[t]he Government cannot invoke this individual right and must make the witnesses available for defense counsel to make an inquiry of the prospective witness." (Id. at 3.) Defendants contend that they have due process rights to access the witnesses to determine if they are amenable to an interview and that the Government "has obstructed prospective witnesses from communicating with defense counsel" in this regard. (Id. at 3.)
The Government responds, again, that the witnesses do not wish to be interviewed, and that there is no authority to support an order compelling them to be interviewed. (Gov't's Resp. 2.) The Government advises that, contrary to defense counsel's contentions, it has never "'discourage(d) or obstruct(ed) communication between prospective witnesses and defense counsel.'" (Id. at 3 (citing ABA Criminal Justice Section Standards, Part I, Standard 3-3.1).)
Generally, "witnesses belong neither to the defense nor to the prosecution" and "both must have equal access to witnesses before trial." United States v. Bryant, 655 F.3d 232, 238 (3d Cir. 2011) (internal quotation marks omitted); see also United States v. Medina, 992 F.2d 573, 579 (6th Cir. 1993) ("Witnesses are neither the property of the government nor of the defendant."). A defendant's due process rights are violated "[i]f the prosecution impermissibly interferes with the defense's access to a witness" such that the conduct "undermines the fundamental fairness of the proceeding." Bryant, 655 F.3d at 238. However, "'[n]o right of a defendant is violated when a potential witness freely chooses not to talk; a witness may of his own free will refuse to be interviewed by either the prosecution or the defense." Id. at 239 (quoting Kines v. Butterworth, 669 F.2d 6, 9 (1st Cir. 1981)); see also United States v. Bittner, 728 F.2d 1038, 1041 (8th Cir. 1984) ("Although the prosecution and the defense have an equal right to interview witnesses in a criminal proceeding, the defendant's right of access is not violated when a witness chooses of her own volition not to be interviewed."); Medina, 992 F.2d at 579 ("[A] defendant's right to access is tempered by a witness' equally strong right to refuse to say anything.").
We may easily dispose of Defendants' request to compel the Government to make the witnesses available for interviews. There is no constitutional guarantee granted to a defendant to interview a witness. See United States v. Tipton, 90 F.3d 861, 889 (4th Cir 1996) (stating that "there is no right to have witnesses compelled to submit to interview"); United States ex rel. Jones v. DeRobertis, 766 F.2d 270, 274 (7th Cir. 1985) ("The inability of a defendant to interview witnesses is a constitutional problem only if the state artificially restricted the defendant's ability to obtain evidence."); United States v. Pepe, 747 F.2d 632, 655 (11th Cir. 1984) ("It is clear that the government had no duty, absent a court order, to present its witnesses for interviews."); United States v. Bonilla, 615 F.2d 1262, 1264 (9th Cir. 1980) (finding no error in district court's refusal to compel the government to produce a government informant for a pretrial interview); United States v. Morean, No. 93-40, 1983 U.S. Dist. LEXIS 12622, at *5 (D. Del. Oct. 18, 1983) (stating that "the constitution does not give defendants the right to an actual interview").
Counsel for the Government advise that the twelve witnesses do not wish to speak to defense counsel. (Gov't's Resp. 2; Defs.' Mot. Ex. 2.) This is perhaps not surprising. Allegations in this case include: (1) the murder of a witness in order to prevent his testimony at a murder trial; (2) the arson murder of a witness' family in order to intimidate the witness from testifying against Savage at the 2005 drug conspiracy trial; and (3) threats of violence and death against numerous other individuals suspected to be cooperating with the Government. (Fourth Superseding Indictment.) Under these circumstances, one can imagine that prospective witnesses in this case may not wish to be interviewed by, let alone, communicate with, Defendants or their counsel. Indeed, many of the Government's witnesses are currently in protective custody for security reasons. In any event, the right to accept or deny an invitation to be interviewed belongs to the witness. See United States v. Pinto, 755 F.2d 150, 152 (10th Cir. 1985); Kines, 669 F.2d at 9. This Court cannot compel a witness to submit to an interview with defense counsel.
The cases cited by Defendants simply do not in any way support their argument that the Court may compel the Government to provide witnesses in protective custody to defense counsel for an interview. For example, in United States v. Mendez-Rodriguez, 450 F.2d 1, 5 (9th Cir. 1971), the Ninth Circuit held that a defendant's right to due process is violated where the prosecution deports a witness before the defendant had the opportunity to question or interview the witness and elicit potentially favorable evidence. Mendez-Rodriguez was later overturned by the Supreme Court in the case United States v. Valenzuela-Bernal, 458 U.S. 858 (1982), a case also cited by Defendants. See United States v. Marquez-Amaya, 686 F.2d 747, 747-48 (9th Cir. 1982) (noting that Mendez-Rodriguez was overturned by Valenzuela-Bernal). In ValenzuelaBernal, the Supreme Court held that a defendant's right to due process is violated when witnesses are deported prior to being interviewed by the defendant, but "only if the criminal defendant makes a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses." Id. at 873. We are not dealing with deportations here. There has been no showing that any witness in this case risks deportation.
Moreover, Defendants have not made a showing here that the Government has in any way acted improperly in communicating defense counsel's request to the witnesses. Certainly, the Government is not permitted to instruct a witness not to speak to defense counsel or otherwise artificially restrict a defendant's access to a witness. See United States v. Agostino, 132 F.3d 1183, 1191 (7th Cir. 1997). There is no evidence in the record that the Government has done this. The Government is well aware of its obligations and indeed, advised the Court that it has never discouraged or obstructed communication between defense counsel and witnesses. ...