Despite New Expansive DOJ Disclosure Policies, Multiple Proffers Taken Of Cooperating Witness Held Not Producible To Defense Without Specific Showing That They Contain Traditional Giglio Material
The Department of Justice has, in response to a spate of cases involving its prosecutors behaving badly, recently routinized a set of procedures for handling discovery, in particular for identifying and disclosing Brady and Giglio material. Courts, however, have been slow to transform those voluntarily-assumed burdens into a broader mandate to compel disclosure from the government.
In January 2010, the DOJ provided a memorandum to Department prosecutors entitled “Guidance for Prosecutors Regarding Criminal Discovery” and now enshrined as Department policy in its Criminal Resource Manual. The Guidance, among other things, now requires all witness interviews, other than those undertaken for trial preparation, to be memorialized by an agent (which typically leads to a typed memorandum of interview). Gone are the days when either no notes at all were created of witness proffers or only the AUSA in attendance created work product-protected notes. Moreover, the Guidance provides that “material variances” in a witness’s statements from interview to interview should be memorialized as discoverable material. All of these new requirements are part of the Department's enhanced policy regarding the disclosure of exculpatory and impeachment information, which “provides for broader disclosures than required by Brady and Giglio.”
The translation of policy to actual trial procedure will however take some time, as exemplified by United States v. Wilkes, 2011 WL 4953070 (9th Cir., Oct. 19, 2011). Wilkes was a prosecution of a government contractor who had obtained large numbers of contracts as a result of bribing Congressman Randall “Duke” Cunningham (R-CA). In obtaining a conviction, the government had relied on a cooperator named Combs, telling the trial court that their decision to immunize him was the result of having taken a number of proffers from Combs over a period of months. Wilkes had prior to his trial in 2007 sought the production of those proffer notes under Giglio to contrast them with Combs’ FBI-302 interview memoranda.
Perhaps Wilkes’ 2011 argument in the court of appeals failed to reference the new DOJ policy or perhaps the circuit court found the policies not binding upon the government; the resulting opinion simply makes no reference to them. In any event, his appeal on this point was rejected, the court noting that Wilkes had cited no authority, and the court had found none, requiring the government to disclose all proffers irrespective of whether they contained Brady or Giglio information. A sound argument for the proffers’ production, it seems, could be based on the expansive DOJ Guidance -- without having a clue as to the proffer notes’ contents, a reasonable surmise could be made that there would have to be some “material variances” in the months’ worth of handwritten notes when compared with the typed FBI memoranda of those interviews, making the notes discoverable prior to trial.
(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)