United States v. Johnson

• Decision Date: 27 October 2016
• Docket Number: 1:15cr11–1
• Parties: UNITED STATES of America v. James Lamont JOHNSON.
• Court: U.S. District Court — Western District of Pennsylvania

218 F.Supp.3d 454

UNITED STATES of America

v.James Lamont JOHNSON.

1:15cr11–1

United States District Court, W.D. Pennsylvania.

Signed October 27, 2016

Filed October 31, 2016

Marshall J. Piccinini, U.S. Attorney's Office, Erie, PA, for United States of America.

MEMORANDUM OPINION

David Stewart Cercone, United States District Judge

On March 11, 2015, a grand jury returned a twelve-count indictment charging James Lamont Johnson ("defendant") and a co-defendant. The indictment charges defendant at Count One with conspiracy to defraud the United States through the submission of false claims for income tax refunds, from in and around January, 2011, and continuing thereafter until in and around May, 2012, in violation of 18 U.S.C. § 286 and at Count Two with theft of government property from in and around January, 2011, and continuing thereafter until in and around May, 2012, in violation of 18 U.S.C. §§ 641 and 2. Defendant is charged at counts three through twelve with aggravated identity theft, on or about September 15, 2011 through September 20, 2011, in violation of 18 U.S.C. §§ 1028A(a)(1) and 2. Presently before the court are defendant's Motion for a Bill of Particulars, Motion to Preserve Investigative Notes, Motion for Early Release of Jencks Act Material and Motion to Disclose and Exclude Uncharged Other Crimes, Wrongs, or Acts. For the reasons set forth below, defendant's motions will be granted in part and denied in part.

Defendant has filed a Motion for Early Disclosure of Jencks Act Material. In the motion defendant requests information that extends well beyond the confines of the Jencks Act. For example, defendant seeks the disclosure of "important discovery material in the form of cooperating witness and eyewitness testimony" and notes that the disclosure of such materials can be compelled "in order to guarantee Defendant a fair trial and an even playing field." Defendant asserts that this material must be obtained with sufficient time to review the material and conduct any appropriate inquiry.

It is apparent that defendant has blurred the lines between the various forms of authorized discovery and disclosure under the Jencks Act. It also is apparent that an understanding of the disclosures that can be compelled is a prerequisite to delineating the information that is beyond the court's ability to do so. Consequently, the court will treat defendant's motion as one seeking all forms of permissible disclosures.

The government has filed a response acknowledging its obligations under the Jencks Act and the corresponding obligation under Federal Rule of Criminal Procedure 26.2. In doing so it implicitly asserts that its primary obligation to produce such information is only after direct testimony by a witness has been provided. From this premise the government argues that the defendant's request for this information is premature at this time. It otherwise fails to address the breadth of defendant's requests.

Of course, it would appear to be shortsighted for this court to follow suit. Accordingly, it will treat defendant's motion as seeking all disclosures available under Rule 16, Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and the Jencks Act.

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, in responding to the motion for a bill of particulars the government has acknowledged its Rule 16 obligations and has 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, 90 S.Ct. 97, 24 L.Ed.2d 88 (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, 92 S.Ct. 2507, 33 L.Ed.2d 337 (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 68.¹

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, 97 S.Ct. 837, 51 L.Ed.2d 30 (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. D i Pasquale , 740 F.2d 1282, 1294 (3d Cir. 1984), cert . denied , 469 U.S. 1228, 105 S.Ct. 1226, 84 L.Ed.2d 364 (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.

Third, the statements of co-conspirators, whether indicted or not, are not available to the defendant under Rule 16. 8 J. Moore, MOORE'S FEDERAL PRACTICE , 16.04[1], 16–64. Every circuit court to address the issue has held that such statements are not discoverable under Rule 16 and that disclosure of such statements is governed by the Jencks Act, regardless of whether the co-conspirator will be called as a witness. See United States v. Tarantino , 846 F.2d 1384, 1418 (D.C. Cir.), cert. denied , 488 U.S. 840, 109 S.Ct. 108, 102 L.Ed.2d 83 (1988) ; United States v. Roberts , 811 F.2d 257, 258 (4th Cir. 1987) (en banc ); United States v. Diaz , 834 F.2d 287 (2d Cir. 1987), cert. denied , 488 U.S. 818, 109 S.Ct. 57, 102 L.Ed.2d 35 (1988). These courts have reasoned that disclosure of such statements is governed by the Jencks Act because the government must present some witness who will testify to the unavailable co-conspirator's statements. Accordingly, defendant's request for pretrial disclosure of statements to the extent they can be conceived as co-conspirator statements through the review of records and information bearing on any non-witness declarants whose statements may be offered at trial must be denied.²

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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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, 83 S.Ct. 1194. 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, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ; see alsoUnited 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, 96 S.Ct. 2392, 49 L.Ed.2d 342 (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, 96 S.Ct. 2392 ; 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, 104 S.Ct. 725, 79 L.Ed.2d 185 (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.2d at 44 ; United...