U.S. v. Beckford
| Decision Date | 13 May 1997 |
| Docket Number | Criminal No. 3:96CR66-20.,Criminal No. 3:96CR66-01.,Criminal Nos. 3:96CR66-05 to 3:96CR66-07. |
| Citation | 964 F.Supp. 1010 |
| Parties | UNITED STATES of America v. Dean Anthony BECKFORD, Claude Gerald Dennis, Leonel Romeo Cazaco, Richard Anthony Thomas, Llewellen Fernando Smith. |
| Court | U.S. District Court — Eastern District of Virginia |
David Novak, Stephen Miller, Andrew McBridge, Asst. U.S. Attys., Richmond, VA, for U.S.
Gerald T. Zerkin and Robert J. Wagner, Richmond, VA, for Dean Anthony Beckford.
John C. Jones, Quinton, VA, Scott Brettschneider, Kew Gardens, NY, for Claude Gerald Dennis.
Reginald M. Barley, Richmond, VA, Cary B. Bowen, Bowen & Bowen, Richmond, VA, for Leonel Romeo Cazaco.
David P. Baugh, Richmond, VA, Elizabeth D. Scher, Morchower, Luxton & Whaley, Richmond, VA, for Richard Anthony Thomas.
Jeffrey Everhart, Richmond, VA, for Llewellen Fernando Smith.
Before the Court is the Government's Motion to Quash ex parte subpoenas duces tecum returnable before trial which were issued under seal by the Court upon ex parte application by individual defendants. The Government also moved to stay delivery to the defendants' counsel of the documents, production of which had been required by the subpoenas. For the reasons set forth below, the Government's motion is granted in part and denied in part.
Defendants Dean Anthony Beckford, Claude Gerald Dennis, Leonel Romeo Cazaco and Richard Anthony Thomas have been charged in the Superseding Indictment with the capital crime of intentional murder in furtherance of a Continuing Criminal Enterprise and a drug trafficking conspiracy punishable under 21 U.S.C. § 841(b)(1)(A), in violation of 21 U.S.C. § 848(e). Pursuant to 21 U.S.C. § 848(h), the Government has notified each defendant that it intends to seek a penalty of death in the event of conviction and has posited with specificity the statutory and non-statutory aggravating factors which it will seek to prove as the basis for imposition of the death penalty. Pursuant to 18 U.S.C. §§ 3005 and 3006, the Court has appointed two attorneys to defend each of the death-eligible defendants, finding that the defendants were financially eligible for those services.1
With the approach of trial, defendants Beckford, Cazaco and Thomas filed ex parte applications for subpoenas duces tecum. requiring the pre-trial production of specified documents. The documents subpoenaed by the defendants fall into three general categories:
(1) records from state and federal correctional facilities and other state governmental agencies concerning the requesting defendants;
(2) state law enforcement records concerning the statements, criminal activities, and general backgrounds of specified individuals who are victims of the crimes alleged in the Superseding Indictment and/or prospective Government witnesses in this case; and
(3) state court probation records respecting prospective Government witnesses.
The Government also has filed an ex parte application of its own for a subpoena duces tecum requiring pre-trial production of school records of one defendant which the Government shared with the affected defendant (as has been represented in the ex parte motion for issuance of the subpoena).
The Court initially granted these ex parte applications of the Government and of the defendants, and issued the requested' subpoenas ex parte and under seal. Some of the subpoenaed documents in Categories (1) and (3) were delivered to the Clerk and copies have been delivered to counsel at whose behest the subpoena was issued. A few of the documents listed in Category (2) also have been delivered to the Clerk and copies have been provided to counsel who issued the subpoena. Other documents in Category (2) have been delivered to the Clerk, but copies have not been provided to counsel. None of the documents delivered to counsel for defendants are of the sort which the Government apprehends might jeopardize its rights or the safety of its witnesses if information in them were publicly known.
At this point, it is necessary briefly to explain what seems to be the root problem respecting issuance of subpoenas in Category (2) to certain state law enforcement agencies: a lack of clarity in the identification of the law enforcement entities involved in prosecuting this case. A brief look at the history of the case is therefore appropriate.
Before late 1995, the investigation of many of the crimes charged or involved in this case was exclusively in the hands of state law enforcement agencies. As one would expect, some victims and other persons who the Government now says may be witnesses in this case provided statements to the state law enforcement agencies which were at the time handling the investigation. However, in late 1995, federal and state law enforcement agencies formed a working investigative unit called the Richmond Cold Homicide Task Force (hereinafter the "Task Force") which took over the investigation and prosecution of what is now this case. As the Court recently has been informed, the Task Force is comprised of members of the Richmond Police Department, the Virginia State Police and the Federal Bureau of Investigation. It also involves the Commonwealth's Attorney for the City of Richmond. According to the defendants, the files of the state agencies contain: (i) exculpatory information; and (ii) statements which can be used to impeach the Government witnesses and otherwise aid presentation of the defense. On that basis, the defendants sought production of that information directly from the state agencies by subpoena duces tecum. The Government, however, asserts that the Rule 17(c) subpoenas duces tecum were improperly issued, because all files of the law enforcement agencies comprising the Task Force are in the hands, or under the control, of the Government; and that, therefore, production of statements and other information generated by the state law enforcement agencies before the formation of the Task Force is controlled by the rules of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and the Jencks Act, 18 U.S.C. § 3500, and the Court's earlier orders respecting Brady, Giglio, and Jencks Act material.
The Jencks Act and Brady and its progeny govern the production by the Government of prosecution witness' pre-trial statements and favorable evidence to the defense which are in the possession of the Government. At the outset, then, in determining the applicability of the Jencks Act and the Brady doctrine, it is necessary for the court to determine what agencies comprise the "Government." Until required to do so recently, however, the Government has not identified specifically what agencies it considers to be included within the scope of its obligations respecting production of Jencks, Giglio and Brady material. Moreover, in some pleadings respecting the nature and extent of its obligations, the Government disclaimed any obligation to search, or produce material from, the files of certain state law enforcement agencies. Although the Government's earlier disclaimer related only to state courts and state probation agencies, there was some doubt whether state prosecutor's offices were also within the reach of those statements.
In any event, the Court was left with the impression that the' state and federal efforts were far more separate than, in fact, they were. Thus, the Court approved the issuance of defense subpoenas to state law enforcement agencies, considering those agencies not to be part of the Government for Jencks and Brady purposes. Although the Government argues otherwise, counsel for the defendants may have made the same mistake with respect to their subpoena requests to state law enforcement agencies as did the Court. Or, as the Government suggests, perhaps counsel for the defendants may have construed the Court's earlier decisions more narrowly than is warranted by their text. In either case, the defendants sought the requested information by subpoena under Rule 17(c), apparently of the view that the material was not the subject of the Court's previous decision respecting the timing of production of Jencks, Giglio and Brady material in the possession or control of the Government.
The Government's motion to stay and to quash was filed immediately after service of a subpoena (in Category (2)) on an officer of the Richmond Police Department. The Government, having learned of the issuance of that subpoena, immediately thereafter moved to stay production of all documents subpoenaed ex parte and to quash all ex parte subpoenas. The Government asserted two bases for the relief sought: (1) that the subpoenas could not properly have been issued ex parte given the nature of the documents which were the subject of the subpoenas;2 and (2) that many of the requested documents constitute Brady, Jencks, or Giglio material, production of which is governed by previous court orders, see United States v. Beckford, et al., 964 F.Supp. 993 (E.D.Va. 1997), and which is not permitted under Rule 17(c). The Government's previous pleadings have documented its concerns respecting the safety of its witnesses, some of whom had given statements which were called for by some of the subpoenas.
Finding merit in the Government's second contention, the Court unsealed the ex parte subpoenas (and the orders pursuant to which they were issued).3 The parties subsequently have resolved their disputes over most of the subpoenas, and the motions to quash and to stay many of the subpoenas previously at issue are now moot. See United States' Statement Regarding Subpoenas (filed April 28, 1997) at 1-3. However, there are several subpoenas duces tecum and the documents produced in response thereto which remain under seal. Further, there is pending another ex parte motion for...
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