The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendant Kaboni Savage's Motion to Compel the Production of Non-Jencks Act Discovery (ECF No. 394) and Defendant Kaboni Savage's Supplemental Motion to Compel Non-Jencks Act Discovery (ECF No. 503). For the following reasons, Defendant's Motions will be denied.
On May 9, 2012, a federal grand jury returned a seventeen-count Fourth Superseding Indictment (the "Indictment") charging Defendant Kaboni Savage with: conspiracy to participate in the affairs of a racketeering ("RICO") enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1); 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); 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). (Fourth Superseding Indictment, ECF No. 480.)*fn2 Kaboni Savage was charged along with three co-defendants, Steven Northington, Robert Merritt, and his sister, Kidada Savage. Lamont Lewis was also charged in the First Superseding Indictment. The charges against Lewis were disposed of by guilty plea on April 21, 2011. On March 14, 2011, the Government filed a notice of intent to seek the death penalty against Kaboni Savage, Merritt, and Northington. (ECF Nos. 196, 197, 198.) The Government does not seek the death penalty against Kidada Savage.
On October 9, 2004, six people, including four children, died as a
result of arson at a home located at 3256 North Sixth Street,
Philadelphia, Pennsylvania. (Def.'s Mot. 1, ECF No. 376.) The
Indictment alleges that Kaboni and Kidada Savage solicited and ordered
Lewis and Merritt to set fire to the home of Eugene Coleman, a former
associate of Kaboni Savage. (Indictment 21-23.) Savage believed that
Coleman was cooperating with the Government and planned to testify
against him in his 2005 federal drug conspiracy trial.*fn3
The firebombing took the lives of Coleman's mother, infant
son, and four other relatives. The Government intends to show at trial
that the firebombing was ordered by Kaboni Savage in order to
intimidate Coleman and prevent him from testifying against him at the
2005 drug conspiracy trial.
Savage has filed a Motion to Compel the Production of Non-Jencks Act Discovery.
(Def.'s Mot., ECF No. 394.)*fn4 The Government filed an omnibus response in opposition. (Gov't's Resp., ECF No. 468.) Savage then filed a Supplemental Motion to Compel Production of Non-Jencks Act Discovery. (Def.'s Supp. Mot., ECF No. 503.) We held a hearing on the pretrial motions. At that hearing, the parties presented additional argument on the Motion. Thereafter, Savage filed a Memorandum of Law in Support of His Motion to Produce NonJencks Act Discovery. (Def.'s Mem., ECF No. 530.)
Defendant seeks production of fourteen sets of materials identified in
a November 14, 2011 correspondence with the Government (see Def.'s
Discovery Mot. Ex. A), additional materials listed in Savage's
Supplemental Motion (see Def.'s Supp. Mot.), and information stemming
from existing discovery identified during the suppression hearing (see
June 12, 2012 Hr'g Tr. 105 (on file with Court)) pursuant to Brady and
Rule 16 of the Federal Rules of Criminal Procedure.*fn5
The Government advises that many of these materials have
been produced,*fn6 made available to Defendants,*fn7
are better suited for Jencks Act-related
productions,*fn8 or simply do not exist.*fn9
(Gov't's Resp. 28-32.) To the extent that any of the
requested documentation is Jencks Act material, we expect the Government to
produce them in accordance with their statutory discovery obligations
and our Order dated June 14, 2012.*fn10 See 18 U.S.C.
§ 3500 (requiring the production of statements and reports of
Government witnesses or prospective Government witnesses after the
witnesses' testimony on direct examination); see also United States v.
Kimoto, 588 F.3d 464, 475 (7th Cir. 2009). With regard to the
materials that the Government claims do not exist, they obviously
cannot be produced. If the Government discovers responsive documents
in their possession that they are obligated to produce, the Government
shall produce them.
The remaining issue is the Government's obligation to locate, review, and produce requested documentation, to the extent that it exists, from a number of other governmental agencies. Defendant contends that because the Government's investigation is inherently inter-departmental, the Government is compelled to produce the requested evidence in advance of trial. Specifically, these outstanding requests relate to any reports by the PPD, FBI, DEA, and ATF for fourteen individuals and eight locations.*fn11
A. Brady Material and Rule 16 Discovery
As an initial matter, the Government has an ongoing obligation to produce material evidence under its control pursuant to Brady. In Brady v. Maryland, the Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87 (1963). Similarly, the prosecution is required to turn over impeachment evidence to the defense - that is, evidence relating to a Government witnesses' credibility. United States v. Friedman, 658 F.3d 342, 357 (3d Cir. 2011) (citing United States v. Giglio, 405 U.S. 150, 154 (1972)). While Brady evidence must be turned over "in time for its effective use at trial," Giglio material need not be produced prior to trial. United States v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983) (holding that a defendant's due process rights are satisfied as long as evidence pertaining to Government witness credibility is produced the day of their testimony).
These ongoing production obligations differ from Rule 16 discovery obligations. See United States v. Boffa, 513 F. Supp. 444, 499 (D. Del. 1980) (finding that the Brady Rule "is not a discovery rule but a rule of fairness and minimum prosecutorial obligation"). Rule 16 states that "[u]pon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents . . . if the item is within the government's possession, custody, or control and the item is material to preparing the defense . . . ." Fed. R. Crim. P. 16(a)(1)(E). Unlike Brady, "Rule 16 contemplates a fundamentally limited range of pretrial discovery." United States v. Norris, 753 F. Supp. 2d. 492, 529 (E.D. Pa. 2010); see also United States v. Mohammad, No. 10-389, 2012 WL 1605472, at *2 (N.D. Ohio, May 8, 2012) (denying Defendants' request for early production of Jencks material and finding that Government met its discovery obligations under Rule 16).
Under Rule 16 discovery, a defendant is required to make a prima facie showing of materiality with regard to the evidence requested. United States v. Boffa, 89 F.R.D. 523, 535 (D. Del. 1981). As with Brady evidence, materiality in the Rule 16 context is such that "'there must be some indication that the pretrial disclosure of the disputed evidence would have enabled the defendant significantly to alter the quantum of proof in his favor.'" United States v. Buckley, 586 F.2d 498, 506 (5th Cir. 1978) (quoting United States v. Ross, 511 F.2d 757, 762-63 (5th Cir. 1975)); see also United States v. Perdomo, 929 F.2d 967, 971 (3d Cir. 1991) (finding that materiality is based on whether there is a reasonable probability that the production of evidence would affect the outcome of the trial); United States v. Garcia, No. 99-064, 2001 WL 173784, at *2 n.8 (D. Del. Feb. 13, 2001) (same). In terms of materiality in the ...