United States District Court, W.D. Pennsylvania
David Stewart Cercone United States District Judge.
On July 31, 2013, a grand jury returned a two-count indictment charging Steven Beech (“defendant”) at count one with conspiracy to distribute and possess with intent to distribute 1, 000 kilograms or more of marijuana, from in and around 2006 to in and around May, 2012, in violation of 21 U.S.C. § 846 and at count two with conspiring to launder monetary instruments, from in and around 2008 to in and around May 2012, in violation of 18 U.S.C. § 1956(h). Presently before the court are defendant's motions for Information Favorable to the Defense, Disclosure of Agreements Between the Government and Its Witnesses, Expert Disclosure/Discovery, Notice of Government's Intention to Use Similar or Related Act Evidence, Early Disclosure of All Jencks Act Material and motion to have law enforcement Retain Rough Notes. For the reasons set forth below, defendant's motions will be granted in part and denied in part.
A number of defendant's motions seek various forms of "discovery." Defendant's motion for information favorable to the defense and motion for agreements between the government and its witnesses seek a litany of exculpatory and impeachment information falling within the doctrine set forth in Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. This information includes any exculpatory information from any source, all evidence of transactions not charged in the indictment that might be offered to prove intent, mode of operation, course of conduct and so forth, the names and addresses of all witnesses the government intends to call and any promises made or inducements offered to them, any episodes of criminal conduct by any government witness, any information pertaining to a witness's cooperation, any information about services provided to any such witness, any evidence tending to negate the existence of a conspiracy, any expressed or implied promise or assurance of favorable treatment offered or extended to such witnesses, any expressed or implied consideration offered or extended to such witnesses, any expressed or implied threat, coercion or intimidation aimed at or advanced to any such witness, and so forth. The motion for Early Disclosure of Jencks Act material seeks an order directing the government to produce such materials prior to trial in order to preserve defendant's Sixth Amendment right to "a fair trial." Defendant's motion for expert disclosure seeks the substance and foundation for all expert testimony which the government intends to use at trial.
The government has filed a response acknowledging its obligations under Federal Rule of Criminal Procedure 12 and 16, Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972), and the Jencks Act. It asserts that its primary obligation to produce discovery is governed by Rule 16 and it need only produce Brady impeachment material in time for it to be used effectively at trial. It highlights that the United States Court of Appeals for the Third Circuit held in United States v. Higgs, 713 F.2d 39 (3d Cir. 1983), that a defendant's right to a fair trial was fully protected where the government disclosed Brady impeachment material the day the government's witness testified. Id. at 44. It claims that it is unaware of any Brady exculpatory material at this time and it has produced extensive Rule 16 material to date. It intends to disclose all Jencks Act material and all Brady impeachment material two weeks prior to trial. Beyond these areas, it asserts that defendant is not entitled to a list of the government's witnesses, the minutia of the evidence it will introduce at trial, or information outside the scope of Rule 16.
To the extent defendant’s motion seeks the disclosure of statements, information and things beyond (1) that which the government has made or has agreed to make available and (2) the dictates that flow from Rule 16 and Brady, the motion will be denied for a number of reasons. First, the government has acknowledged its obligations under Rule 16 and indicated it has complied and will continue to comply with those obligations fully. Rule 16 was not designed to provide a defendant with a vehicle to discover the government’s case in detail or the strategy it intends to pursue at trial. United States v. Fioravanti, 412 F.2d 407, 410 (3d Cir.), cert. denied, 396 U.S. 837 (1969). Nor is the rule designed to provide a defendant with verification that the use of anticipated evidence at trial by the defense is not vulnerable to attack by evidence within the government’s possession. United States v. Randolph, 456 F.2d 132, 136 (3d Cir.), cert. denied, 408 U.S. 926 (1972). In fact, in sharp contrast with these propositions, the United States Court of Appeals for the Third Circuit has recognized that discovery in criminal cases is limited to those areas delineated in Rule 16, “with some additional material being discoverable in accordance with statutory pronouncements and the due process clause of the Constitution.” United States v. Ramos, 27 F.3d 65, 67-68 (3d Cir. 1994). As a general matter these other areas are limited to the Jencks Act and materials available pursuant to the so-called “Brady doctrine.” Id. at 68.
Second, the government has no obligation to produce an outline of the evidence it will offer at trial. A defendant is not entitled to conduct a wholesale review of the government's investigation. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (there is no general constitutional right to discovery in a criminal case). Nor is a defendant entitled to obtain a list of the government's witnesses through discovery. See United States v. DePasquale, 740 F.2d 1282, 1294 (3d Cir. 1984), cert. denied, 469 U.S. 1228 (1985). Similarly, there is no authority to support a defendant's request for the specifics of each government witness' proposed testimony. See Fioravanti, 412 F.2d at 410 (a defendant has no right to discover the minutia of the government's evidence or the manner in which it will be used). And even assuming arguendo that this court has some residual discretion to order the pretrial disclosure of the government's evidence in appropriate circumstances, the current record falls woefully short of presenting sufficient grounds to justify such an extraordinary measure.
Another area potentially remaining in dispute concerns the disclosure of impeachment material. As a general matter, a defendant's requests for impeachment material such as the criminal records of and promises or inducements made to prospective government witnesses raise issues under Brady and the Jencks Act. In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that due process requires the disclosure of “evidence favorable to an accused upon request . . . where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87. The Supreme Court subsequently held that evidence which may be used to impeach the testimony of a government witness falls within the ambit of Brady when the credibility of the witness may have an effect on the jury’s determination of guilt or innocence. See Giglio v. United States, 405 U.S. 150, 154 (1972); see also United States v. Starusko, 729 F.2d 256, 260 (3d Cir. 1984); Ramos, 27 F.3d at 68 (Brady material includes “materials that might affect the jury’s judgment of the credibility of a crucial prosecution witness”) (quoting United States v. Hill, 976 F.2d 132, 134-35 (3d Cir. 1992)). In United States v. Agurs, 427 U.S. 97, 107 (1976), the Supreme Court modified the Brady rule to require the government to disclose exculpatory evidence even when the defendant has not requested the information. Id. at 107; see also United States v. Perdomo, 929 F.2d 967, 970 (3d Cir. 1991).
The so-called Brady doctrine generally is understood as a rule of minimum fairness. United States v. Higgs, 713 F.2d 39, 42 (3d Cir. 1983), cert. denied, 464 U.S. 1048 (1984). It establishes a prosecutorial obligation rather than a general rule of pretrial discovery. The government thus has an obligation to produce favorable material bearing on a defendant’s culpability or punishment as well as material bearing on the credibility of any witness who will be used to establish material matters at trial. This obligation is not to be used, however, to permit a defendant to obtain wholesale discovery of the government’s principal case. See Higgs, 713 F.2d at 42; United States v. Bocra, 623 F.2d 281, 285 (3d Cir. 1980).
It is well-settled that the government’s obligations under Brady require it to disclose actual exculpatory evidence without undue delay. Brady impeachment material ordinarily must be disclosed “in time for its effective use at trial.” Higgs, 713 F.3d at 44; United States v. Blackwell, 954 F.Supp. 944, 968 (D.N.J. 1997). A district court has general discretionary authority to order the pretrial disclosure of Brady impeachment material and that discretion is to be exercised in a manner which “ensure[s] the effective administration of the criminal justice system.” Government of Virgin Islands v. Martinez, 847 F.2d 125, 127 (3d Cir. 1988); Blackwell, 954 F.Supp. at 968. As to this material, the government requests leeway to turn it over when it produces its Jencks Act material, ten business days prior to trial.
While the court recognized in Higgs that a defendant's due process rights to a fair trial are not violated where the disclosure of Brady impeachment material occurs in time to be used effectively, subsequent cases by the Third Circuit have reiterated and encouraged adherence to the long-standing policy of promoting the early production of all types of Brady material, including impeachment and so-called Higgs materials. See Starusko, 729 F.2d at 261 (citing United States ex rel. Marzeno v. Gengler, 574 F.2d 730, 739 (3d Cir. 1978); United States v. Kaplan, 554 F.2d 577, 578 (3d Cir. 1977)); see also United States v. Giampa, 904 F.Supp. 235, 281 (D.N.J. 1995); Blackwell, 954 F.Supp. at 968. The government's early production of Higgs-type impeachment material may well overlap with its subsequent production under the Jencks Act and provide defendant with "advanced" notice of certain witnesses the government intends to use at trial. Nevertheless, the court notes that after disclosure is made defense counsel can more fully advise his client regarding the appropriate development of the case, including consideration of any plea agreement offered by the government. In light of all of the circumstances, the government is encouraged to disclose all Brady impeachment material without further delay, and in any event it will be ordered to produce all such material no later than ten business days prior to trial.
Defendant also moves for timely notice of any prior bad acts the government intends to introduce pursuant to Rule 404(b). The government indicates it does not presently intend to offer evidence at trial that falls within the scope of Rule 404(b). In the event that its approach to such matters should change, it intends to provide formal reasonable notice in accordance with the Rule. It further notes that it does intend to impeach defendant in accordance with Rule 609 in the event defendant chooses to testify at trial.
The government is required to give notice of its intention to use Fed.R.Evid. 404(b) evidence prior to trial. Rule 404(b) specifically provides “that upon request by the accused the prosecution in a criminal case shall provide reasonable notice in advance of trial . . . of the general nature of any evidence it intends to introduce at trial.”
The rule requires only the disclosure of the general nature of the evidence the government intends to introduce. A demand for specific evidentiary detail, such as dates, times, places and persons involved is overly broad. See United States v. Alex, 791 F.Supp. 723 (N.D. Ill. 1992). Thus, the disclosure of “the general nature” of such evidence is that which is sufficient to put a defendant on notice as to which of his or her past episodes of conduct may be used by the government at trial.
What constitutes “reasonable notice in advance of trial” is determined by the circumstances and complexity of the prosecution. In Alex, the court ordered disclosure of Rule 404(b) evidence seven days prior to trial. In contrast, the court in United States v. Williams, 792 F.Supp. 1120, 1133 (S.D. Ind. 1992), noted generally that disclosure within ten days prior to trial constitutes reasonable advanced notice. Similarly, in United States v. Evangelista, ...