United States District Court, D. Arizona
CINDY K. JORGENSON, District Judge.
On November 10, 2014, Magistrate Judge Leslie A. Bowman issued a Report and Recommendation (Doc. # 81) in which she recommended the Motion to Suppress Statements (Doc. 63) filed by Defendant Tony Nixon ("Nixon") be denied. An objection and a response have been filed.
I. Report and Recommendation - Standard of Review
The Court has reviewed the Motion to Suppress Statements (Doc. 63), the response (Doc. 69), the Report and Recommendation ("R & R") (Doc. 81), the objections (Doc. 85), and the response (Doc. 86). The R & R summarizes that Nixon seeks suppression of two statements taken from the material witnesses because the statements were not recorded and were instead summarized in agents' reports, in violation of his due process rights. Nixon also asserts the video recorded depositions should be suppressed. Nixon argues that, because the prior statements were not recorded, the defense did not have a full and fair opportunity to cross-examine the witnesses, in violation of his due process rights. The magistrate judge recommends this Court deny the Motion to Suppress Statements.
The standard of review that is applied to a magistrate judge's report and recommendation is dependent upon whether a party files objections - the Court need not review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472-73, 88 L.Ed.2d 435 (1985). However, the Court must "determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instruction." Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."). Nonetheless, "while the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard." Thomas v. Arn, 474 U.S. 140, 154 (1985).
II. Duty to Preserve Evidence of Witnesses
Nixon argues the magistrate judge erred in determining the prosecutor had no duty to preserve evidence of witnesses. The magistrate judge acknowledged that, while there is no rule or constitutional requirement that post-arrest statements be electronically recorded, the "failure to record, when the equipment is available, might support an inference that the agents' testimony about the circumstances surrounding the statement may not be accurate." R & R, p. 4, citing United States v. Wright, 625 F.3d 583, 604 n.10 (9th Cir. 2010). To the extent the defense asserts the magistrate judge erred in determining the prosecutor had no duty to preserve evidence of witnesses, the Court finds the magistrate judge did not reach such a conclusion.
However, the Court also considers that Nixon is implicitly arguing that the government in this case did not adequately preserve evidence of the material witnesses' statements. While it may be appropriate for agents to memorialize witness statements, see e.g., Prince v. Ryan, No. CV-08-1299-PHX-SRB (JRI), 2011 WL 7781479 * (D.Ariz. April 12, 2011) ("A perverse incentive would apply if the prosecution could avoid disclosure of exculpatory information simply because the officers possessing it failed to memorialize it in writing or otherwise."), this Court agrees with the magistrate judge that there is no rule or constitutional requirement that post-arrest statements be electronically recorded. Rather, when the government chooses to memorialize evidence in some other form, the government's case may be subject to attacks of the memorializing agent, arguments regarding negative inferences, or similar consequences.
Nixon argues that, unless all contacts between material witnesses and government agents are scrupulously recorded, defendants can never know what agreements, express or implied, may have been conveyed to the witnesses, particularly where the prosecutor is directly involved and holds the power to file additional charges. Indeed, Nixon points out the government sent the material witnesses letters advising them they may be prosecuted for any false statements or perjury that the material witnesses had made or may make in connection with this case. Nixon appears to be arguing that a prosecutor should not advise a witness of possible consequences of false statements or perjury and further appears to be arguing that every time a prosecutor interviews a witness pre-trial, such interview must be recorded. However, even if a prosecutor does not have a substantial basis to believe a witness may be lying, non-coercive warnings to a witness are appropriate. United States v. Vavages, 151 F.3d 1185 (9th Cir. 1998). Further, Nixon has not provided any authority for his assertions and the Court is not aware of any such authority. See e.g., United States v. Bernard, 625 F.2d 854, 859-60 (9th Cir. 1980) (finding no statutory or constitutional basis to require government to create discoverable material). Further, the defense was not restricted from interviewing the material witnesses before the depositions, afforded an opportunity to inquire into the interviews during the depositions, and the defense did not object to the release of the material witnesses.
Additionally, prosecutors are subject to disclosure requirements. Brady v. Maryland, 373 U.S. 83 (1963), United States v. Bagley, 473 U.S. 667 (1985), United States v. Agurs, 427 U.S. 97 (1976), Strickler v. Greene, 527 U.S. 263, 280 (1999), Giglio v. United States, 405 U.S. 150, 154-55 (1972). Information obtained in interviews, whether they have been recorded or not, may be subject to disclosure. Just because the government does not provide that disclosure in the method preferred by the defense does not mean that the due process rights of Nixon have been violated. Although Nixon asserts in his original motion that defense counsel was "unable to find any cases where the prosecution interviewed material witnesses without preserving the testimony[, ]" Motion, pp. 7-8, the Court does not find such a practice is not typical. See e.g. 81 Am.Jur.2d Witnesses § 226 (discussing inter alia prosecutor testifying as to statements made to him or her by a witness other than the defendant or the victim of the crime and discussing other sources providing corroborating evidence); United States v. Acosta, 357 F.Supp.2d 1228 (D.Nev. 2005) (discussing prosecutor's notes of interview, as opposed to recording, with government witness).
The Court does not find that the failure to electronically record the material witnesses' statements results in a violation of Nixon's due process rights.
III. General Order 11-15(3)
Nixon argues the magistrate judge erred in determining General Order 11-15(3) applies equally to the prosecution and defense attorneys. The General Order provides:
3. After notification orally or in writing by the Court that a witness is being detained in the case the parties may arrange a date and time for the interview of the witness. A material witness is ...