The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge
REGARDING DISCOVERY MOTIONS
Docket Nos. 268, 269, 270, 272
ORDER RE MOTIONS TO COMPEL (Dockets 268, 269, 270, 272)
Defendant Robin Jensen moves to compel production of material pertaining to Joseph O. Saladino and other related material, Docket 269. She has also moved to compel production of material referenced at the August 23, 2010 hearing, Docket 270. Defendant James Jensen moves to compel discovery, Docket 272. The defendants have joined in their co-defendant's motions.*fn1 The government filed a response/opposition to these motions at Dockets 274 (for 270), 275 (for 269), and 276 (for 272). The government has also filed a motion to file reciprocal discovery and inspection as to both defendants, Docket 268. Defendants filed an opposition at Docket 273. Theses motions are granted in part and denied part as discussed below.
Motion to Compel Production of Material Pertaining to Joseph O. Saladino
This motion seeks discovery under Federal Criminal Rule 16 as well as exculpatory information pursuant to Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), United States v. Agurs, 427 U.S. 97 (1976), United States v. Bagley, 476 U.S. 667 (1985), and Kyles v. Whitley, 115 S. Ct. 1555 (1995).
Robin Jensen states that the joint tax returns referenced in Counts 2 through 4 of the Indictment were prepared by Joseph O. Saladino. Saladino was successfully prosecuted for conspiracy to defraud the United States under 18 U.S.C. § 371. United States v. Joseph Oquindo Saladino, et al, Case No. 3:07-cr-00535-BR (D.Or.) The defendant acknowledges that the government has produced some portion of their Saladino files identified as relating to the Jensens. Jensen seeks an order compelling the immediate production of all material from the government's investigation or prosecution of Saladino "that could be relevant to the preparation of the defense including all such material bearing on the credibility of Saladino or his ability to persuade or deceive customers or potential customers regarding his various tax products."*fn2
Federal Criminal Rule 16(a)(2) excepts from discovery "reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting" the case against the moving defendant. Rule 16(a)(1)(E) provides that "the government must permit the defendant [upon request] to inspect and to copy or photograph books, papers, [or] documents" which are within the government's possession, custody or control and are material to the preparation of a defense or intended for use by the government in its case-in-chief at trial or the item was obtained from or belonged to the defendant. Thus, by these two rules not all of the material in the government's possession relevant to the preparation of a defense is discoverable where the document, memorandum or report was made be a government attorney or agent in connection with investigating or prosecuting this case.
Material bearing on the credibility of Saladino appears to fall under Brady material. Material addressing the government's assessment of Saladino's ability to pursue or deceive customers appears to be the government's work product. Materials substantiating the government's claims that Saladino conned hundreds of tax payers or deceived his customers should be produced as discovery if the government intends to use that document in its case-in-chief at trial or the item was obtained from either or both Jensens. To the extent that the government and its agents have information that Saladino and/or his associates represented that his tax services were legitimate or their advice verifiable, or such information that would be material or tending to negate the government's allegation of willfulness, the material should be disclosed as exculpatory. The defendant's motion serves to inform the government as to how the defendant's claim the discovery sought is material to the preparation of their defense.
Neither defendant has requested specific documents that they deem to be exculpatory. They have not identified which conferences they participated in. The government is not required to conduct an investigation to locate such information not known to it, but it is required to review its agents reports, memorandums and interviews, and agents notes of witness interviews to locate any exculpatory information.
Also included in the defendant's Brady request is any information in the government's possession or knowledge of any person whom the Jensens retained or hired for tax advice where the person withheld material information from them.
The standard for requiring Brady disclosure is Due Process. Brady does not encompass all information that might necessarily be considered by the defense as helpful to the preparation of a defense. Rule 16(a)(1)(E) refers to documents and objects per se and not statements of witnesses merely because they have been recorded in a document or a report. The duty to disclose exculpatory information, however, requires review of all information possessed by the government, whether it relates to tangible objects or statements or a potential witness.
Production of witness statements by the government is governed by the Jencks Act, 18 U.S.C. § 3500. If the statement is memorialized by a person who is not called as a government witness, then production of such statement shall be produced only to the extent that it is exculpatory.
The request for production of all government and IRS records concerning the Jensens is overly broad and therefore denied. Notes of interviews with individuals relating to this matter are producible as Jencks Act material within the limitations of that statute. For example, agents notes taken during an interview but never read back to the interviewee and which are not signed or otherwise approved or adopted by the interviewee as his own need not be produced. A government agent's rough notes are not Jencks Act statements when they are incomplete, truncated in nature, or have become "an unsiftable mix of witness testimony, investigator selections, interpretations and interpolations." United States v. Mincoff, 574 F.3d 1186 (9th Cir. 2009).
The request for all search warrants, subpoenas, summonses, administrative summons requests and supporting documentation in relation thereto concerning the Jensens or an individual retained on relied upon by them during the time period of the indictment is overly broad and beyond the parameters of Federal Criminal Rule 16. The government shall provide defendants with copies of any search warrants used in this criminal prosecution. The government, of course, shall abide by the notice requirement in Federal Criminal Rule 12(b)(4) requiring the government to notify the defendant of its intent to use specified evidence at trial in order to afford the defendant(s) an opportunity to object before trial by filing a motion to suppress evidence. The general request constitutes an unwarranted fishing expedition.
A defendant is not entitled to discovery in a criminal prosecution merely because the items sought may be material to preparation of a defense. The defendant is not entitled to a preview of all the government's evidence prior to trial. Thus, the request for evidence of willfulness that the government may attempt to introduce at trial is beyond the parameters of the government's duty to disclose discovery where such evidence does not fall under Brady and its progeny or a statutory obligation, or applicable rules or procedure. The defendant is not entitled to a preview of the government's evidence merely because the admissibility of that evidence may be "complex" or present a "difficult question that can only be fully briefed after full disclosure." The government has a duty to disclose Brady material even in the absence of a request by the defense. Brady includes impeachment evidence.
Defendants seek immediate disclosure of all requested material. Courts addressing the issue of timeliness of Brady disclosures have stated that the appropriate time is such time as would allow the defense an opportunity to effectively utilize the Brady material. The motion at Docket 269 is granted in part and denied in part accordingly.
RE Government's motion for Reciprocal Discovery The government seeks reciprocal discovery from defendants pursuant to Federal Rules Criminal procedure 16(b)(1)(A). The rules allows the government, after complying with a request by defendants for similar material, to inspect and to copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions of any of these items if the item is within the defendant's possession, custody or control; and the defendant intends to use them in the defendants case-in-chief at trial. The defendant's, through counsel, previously invoked Fed. R. Crim. P. 16(a) in their request for discovery.
Defendants characterized the government's motion to compel reciprocal discovery as a "threat" and characterize it as absurd stating that the prosecuting attorneys have likely withheld significant exculpatory evidence.*fn3 Such characterization is inappropriate as opposition to producing reciprocal discovery. The defense is not relieved of its obligation to give reciprocal discovery based upon an unsupported claim that the government has withheld exculpatory evidence.
The identity of unnamed professionals from whom the Jensens may have sought relevant tax advice should be within the knowledge of the Jensens. The defendants' request for a "broad general order" for production of information from such unidentified persons, dates or context is an unwarranted attempt to shift the burden to the government to investigate potential defenses for the defendants.
What advice the Jensens sought, as well as the advice they received, may or may not fall into the category of exculpatory material that the government must produce. The government is in a far better position than the court to analyze its investigative materials and determine what likely constitutes exculpatory evidence. A "board, general discovery order" as sought by defendants is not warranted simply because the defense counsel may be unaware of information that might be useful to the defense.
Jensen cites United States v. Eley, 335 F. Supp. 353, 357, n.2 (ND GA. 1972) in support of his requests for such broad discovery order. In the footnote cited, the court addressed instances in which the accused is unaware of what the prosecution possess and must therefore resort to a broadside request for "all favorable evidence" in contrast to having to show materiality in order to get Brady disclosures. This court recognizes the defendant's general request for Brady material but such a request does not validate the need for a discovery order beyond what is authorized by the law. Eley, supra, holds that at a minimum the court should be convinced that the information would have a material bearing on defense preparation before it grants pretrial discovery of such information. Id. at 357.
Rule 16 and the Jencks Act provides for general discovery of certain information under certain conditions. Brady recognizes the due process right of a defendant to information in the possession of the prosecution which may exonerate him or reduce punishment. Brady does not replace Rule 16 of the Federal Rules of Criminal Procedure or the Jencks Act.
The government is directed to carefully consider whether the Jensen's Brady request conflicts with any state of federal statutory restrictions and disclose such exculpatory material in accordance with the constitutional mandate of due process.
Defendants note that discovery produced by the government lacks revenue agent reports, special agents' reports, etc. Defendants argue that the missing reports and rough notes "will likely contain additional useful discovery. . ." The test for compelled discovery is not whether it would be useful to the defendant.
"[T]he prosecutor has no duty to disclose information in the possession of governmental agencies which are not investigative arms of the prosecution and have not participated in the case, even if such information might be helpful to the accused." Eley, at 335. The scope of discovery under subdivision (E) is limited by Rule 16(a)(2). Subparagraph (E)(relating to documents and objects) does not contain a requirement contained in subparagraphs (B), (D), and (F) ...