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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)

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The respective federal civil and criminal rules regarding the formatting and organization of discovery materials for one’s adversary are so disparate that they appear to straddle different centuries of technological development. Civil Rules 26 and 34, and the case law which has construed them, are firmly of the 21st century, and have generated expectations among litigants and judges regarding the manner in which discovery will be produced electronically, according to certain formats and commensurate with search software and evidence organization programs. Criminal Rule 16 harkens, by contrast, to the early Industrial Revolution, encouraging the government to produce rooms, or even warehouses, full of paper documents to be examined in challenging physical environments of heat, cold, or excessive moisture; even as to electronic criminal discovery, requests for particular formatting or search capability often generate bemusement instead of cooperation.

According to a recent Sixth Circuit opinion (see previous posts here and here), nothing will soon change in regard to how courts view the government’s obligations under Rule 16 . United States v. Warshak, et als., 2010 WL 5071766 (6th Cir., 12/14/2010). Rule 16 requires that the government permit a defendant to inspect and copy any documents or data which it possesses or controls and which is material to the defense, is intended to be used as evidence in the case-in-chief, or which was obtained from or belongs to the defendant. In Warshak, the government turned over the electronic equivalent of 17 million pages of discovery, mostly seized from the defendant’s company computers, an additional 500,000 pages of hard-copy documents seized at the company, and nearly 300 CD’s worth of other evidentiary materials obtained from other sources. Warshak complained that the district court failed to order the government under Rule 16 to organize its electronic discovery and make it searchable.

The court of appeals noted that Warshak’s objections were not very well taken, since the record below indicated that the defendant and his expert witness had seemingly been able to locate pertinent materials within the government discovery. Moreover, the government had provided the defense with “something of a guide” to the electronic discovery in the form of a room-by-room inventory of items seized from the company; there was no mention of any kind of a guide provided to make sense of the 300 disks filled with materials located elsewhere than at the company. In any event, a civil litigator would shudder at the idea that a physical inventory of the places and computers searched would even approximate “something of a guide” to the resulting electronic data.

More to the point, perhaps, the Sixth Circuit noted that Rule 16 is entirely silent on the form in which the government must produce discovery, and does not require the organization or indexing of that discovery. In light of the “scant” authority cited by the defendant for requiring any more from the government (referring to a single, distinguishable district court opinion) and the “pronounced dearth of precedent” compelling the result sought by the defendant, the trial court’s refusal to accede to the request was affirmed.
 

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On January 4, 2010, Deputy Attorney General David W. Ogden issued a series of three memoranda, published on the website of the Department of Justice, which represented the culmination of a several-months long study of discovery practices among the United States Attorney's Offices and retraining of new discovery coordinators from each Office. The study was undertaken following a number of embarrassing episodes in which courts sanctioned Department lawyers for misconduct such as covering up exculpatory and impeachment material. The most spectacular flame-out was undoubtedly the failed prosecution of former Alaska Senator Ted Stevens, which ended in April 2009 with the court's dismissal of the indictment against him. More recently, another judge incensed over prosecutorial mishandling of evidence dismissed an indictment against several Blackwater employees charged in an Iraq shooting incident.

In the most significant and substantive of the memoranda, one entitled "Guidance for Prosecutors Regarding Criminal Discovery," the Department has enshrined in practical, specific guidelines principles which were formerly only expressed in the most general terms in the United States Attorney's Manual. To ensure that every federal prosecutor adheres to a disclosure approach which exceeds the bare constitutional requirements of Brady and Giglio and the literal requirements of FRCP 16 and 26.2 and 18 U.S.C. § 3500, the new Guidance memorializes a number of particular obligations, including:

 the obligation of every prosecutor to cast a broad net in searching for potential exculpatory and impeachment material. This includes reviews of the entire files of federal agents involved in a matter, including internal emails never before routinely made available to prosecutors. For testifying confidential witnesses or informants, the material to be reviewed now includes agent assessments of the witness(es) and records of payments of expenses. In 16 years as a federal prosecutor, the author can never recall having seen an internal FBI "airtel" or other internal communications regarding evidence gathering, or records of meals bought for witnesses; those are now among the materials which must be reviewed for potential discovery.

 as to agent-witnesses, prosecutors are now directed to have "candid conversations" about potential impeachment information concerning those agents, which they are expected to divulge to the prosecutor.

 as to non-agent witnesses, the Guidance spells out a formidable list of potential areas of impeachment information to be gathered and disclosed, including "benefits provided to witnesses," a category of conceivably enormous breadth.

 "substantive" case-related communications between prosecutors and agents are now to be preserved for review, and include emails, notes, and memoranda. For someone used to issuing regular "to-do" lists to agents, the need to review and potentially disclose such elaborately itemized lists would have proven embarrassing on many occasions; as of January 4th, such review and potential disclosure is the new normal.

 while trial preparation sessions with witnesses are exempt. all other witness interviews should now be memorialized by the attending agent. This is a significant change from the practice in the District of New Jersey, where it has been routine for prosecutors themselves, and not agents, to be the only note-takers for in-office interviews, thereby depriving the putative defendant of any Jencks statements, since attorneys' notes could be argued to be attorney work product and not subject to discovery.

 the Guidance emphasizes the importance of memorializing any variances in witnesses' statements, potentially expanding the scope of Giglio disclosures in this area, which have traditionally been meager or non-existent

 while the Guidance does not require the prosecutor himself or herself to conduct these expansive reviews -- expressing only a preference for prosecutor review but permitting delegation to agents, paralegals, or others -- it is made clear that the prosecutor will ultimately be held accountable for the non-delegable decision to disclose or not

 finally, while banishing the use of the term "open file" discovery because of its potential to mislead, the Guidance is plain in encouraging broad and early discovery

Of course, experience teaches that the implementation of DOJ policies, not their high-minded pronouncement, is where the rubber meets the proverbial road. But there is no doubt that the Department has now given the clearest direction to its lawyers and, at the same time, created a welcomed opportunity for defense counsel to press for greater and more timely discovery than has ever before been the case.
 

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Federal Rule of Criminal Procedure 16(b) imposes discovery requirements on the defense which are triggered when the government complies with its own, initial disclosure obligations. Some defense counsel treat the reciprocal obligation as more or less voluntary, betting that they will be spared the district court’s wrath and will avoid the sanction of evidence preclusion due to the defendant’s transcendent Sixth Amendment rights. In at least one recent case that bet proved to be a resounding loser.

In United States v. Hardy, 586 F.3d 1040 (6th Cir. 2009), the defendant had been charged with embezzling $250,000 from her employer, a box manufacturer, by transferring funds under her control to another company. Hardy’s defense was that the transfers amounted to a repayment of loans she had earlier caused to be made to the box company, and sought to introduce at trial check stubs in her possession documenting the alleged, earlier loan. Defense counsel had not supplied the government with copies of those defense exhibits prior to trial, and explained the omission by saying that he had not intended to use them and was only obliged to do so when a duces tecum subpoena served on the box company failed to yield original documentary evidence of the loans. The government objected, and the trial court precluded use of the defense check stubs because of a failure to comply with FRCP 16(b).

The Sixth Circuit affirmed the resulting conviction. Under FRCP 16(b), the defense was required to produce in discovery papers and documents in the possession of the defense which are intended for use in the defense’s case-in-chief. Under FRCP 16(c), the obligation is a continuing one. The appeals court viewed the non-disclosure as willful, making exclusion a proper remedy. To the defense counsel’s strained argument that the requirements of FRCP 16(b) apply only to admissible records and the admissibility of the defense’s copies could only be determined when the subpoena seeking original versions proved unavailing, the Sixth Circuit had an emphatic response: the disclosure obligation exists when (a) the defense possesses the document and (b) intends to offer it, regardless of the outcome of any anticipated dispute over admissibility. The Sixth Amendment’s guaranteed right to present exculpatory evidence was not absolute, and could be overcome by the countervailing interests represented here by FRCP 16(b).

The Hardy case is a useful reminder that, while a risk-benefit analysis may justify delaying disclosure until as late in the pre-trial process as possible, that analysis may tilt unalterably against defense counsel if disclosure is not finally made at some point prior to the actual start of the trial.
 

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A lengthy ruling and opinion from an en banc Tenth Circuit upheld the insider trading conviction of Joseph Nacchio, the former CEO of Qwest Communications, and further held that the trial judge properly excluded a defense expert’s opinion testimony under FRE 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). United States v. Joseph P. Nacchio¸ Docket No. 07-1311 (Feb. 25, 2009). The ruling and opinion overruled a prior panel opinion, and reinstated Nacchio’s conviction.

The defense disclosed the expert three days before trial and provided the government with his C.V. and a summary of his testimony. Because the disclosure did not contain the basis for the expert’s opinions as required by Criminal Rule 16, the trial judge ordered the defense to provide a compliant disclosure. The disclosure was to comply both with Rule 16 and the evidentiary rules regarding expert testimony (e.g. FRE 702). The government sought to exclude the revised report under Criminal Rule 16, FRE 702, and Daubert.

Citing Daubert, FRE 702, Criminal Rule 16, and other grounds not critical to this analysis, the trial judge excluded the expert’s opinion testimony largely because the defense failed to establish that the opinions resulted from reliable principles and methods and that the expert applied those principles in the analysis at hand.

The en banc Tenth Circuit focused on the Daubert and FRE 702 rationale in upholding the expert’s exclusion and reinstating Nacchio’s conviction. Further, the court rejected the defense argument that it was entitled to establish the admissibility of the expert’s opinions on the stand, where he would have been subject to voir dire by the government. In this case, the government’s submissions and the trial judge’s instructions to the parties placed the defense on notice that providing notice under Criminal Rule 16 would be insufficient to get the expert to the stand, and that the defense would have to address the government’s objections under Daubert and FRE 702. The defense’s failure to address the Daubert and FRE 702 issues (the defense almost exclusively focused on Criminal Rule 16 in its submissions) was a strategic miscalculation, and, the en banc Tenth Circuit held, it was within the trial judge’s discretion to exclude the expert’s opinions under Daubert and FRE 702.

The impact of the en banc ruling and reasoning is twofold. First, the opinion signals that a trial court may, in its discretion and on appropriate notice, exceed Criminal Rule 16 requirements and obligate parties to establish a proffered expert’s compliance with Daubert and FRE 702 before allowing the expert to testify. Second, as in civil cases, it is not sufficient to show that the proffered expert is “qualified” in the general sense. Rather, in addition to having the appropriate qualifications, the proffered expert must demonstrate an application of reliable methods and principles to the facts of the particular case.
 

(With appreciation to Eric E. Reed, Esq., for contributing this entry)

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On January 6, 2009, the Fifth Circuit rendered its opinion affirming the conviction of Jeffrey K. Skilling in the Enron financial fraud. United States v. Skilling, No. 06-20885. One of the issues raised by Skilling on the appeal was an alleged Brady violation. Skilling argued the government failed to disclose exculpatory information and its use of an open file containing “several hundred million pages of documents” violated Brady. The open file “resulted in the effective concealment of a huge quantity of exculpatory evidence.” Skilling alleged the open file was too vast and he was unable to review all of the documents. As a result, the government, he argued, had suppressed evidence by not informing him specifically of any exculpatory documents.

The court of appeals held that there was no Brady violation. The Fifth Circuit explained that under Brady the government is not obligated to direct a defendant to exculpatory information contained in a “mass of disclosed evidence.” See United States v. Mulderig, 120 F.3d 535, 541 (5th Cir. 1997); United States v. Mmahat, 106 F.3d 89, 94 (5th Cir. 1997) ([T]here is no authority for the proposition that the government’s Brady obligations require it to point the defense to specific documents within a larger mass of material that is already turned over.”), overruled in part on other grounds by United States v. Estate of Parsons, 367 F.3d 409 (5th Cir. 2004). A voluminous open file can only violate Brady if the government purposefully pads it with erroneous information “to frustrate a defendant’s review of the file” because the government cannot hide Brady material of which it is aware in an open file with the hopes a defendant will never find it.

In this case, the court reasoned there was no Brady violation because the open file was electronic and searchable. The government provided Skilling with a listing of documents labeled “Hot Documents.” Additionally, the government provided indices to other documents that may have been relevant to Skilling’s defense. Finally, both parties had equal access to the open file.
 

(With appreciation to Rochelle D. Laws, Esq. for contributing this entry)

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