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United States v. Losch

United States District Court, D. Arizona

December 4, 2019

United States of America, Plaintiff,
v.
Kenneth K. Losch, Defendant.

          ORDER

          Michael T. Liburdi United Slates District Judge

         Pending before the Court are numerous discovery requests made by Defendant (Doc. 59), (Doc. 72), (Doc. 79), and the Government's request for reciprocal discovery (Doc. 70 at 6 n.2). The Court heard oral argument on November 26, 2019. For reasons that follow, the Court grants in part and denies in part Defendant's discovery requests. The Government's request for reciprocal discovery (Doc. 70 at 6 n.2), (Doc. 83) is granted.

         I. Special Agent Lace and the Prosecution Team

         Defendant requested in his Reply in Support of his Discovery Motion (Doc. 72, at 6) that the Court order the Government to disclose all “communications by and between [Special Agent William] Lace and other members of the prosecution team about the case and witnesses in the case.” Defendant argues that Special Agent Lace is a member of the prosecution team, and he makes this discovery request pursuant to Brady/Giglio, Rule 16, Rule 26.2, and the Jencks Act (18 U.S.C. § 3500). (Doc. 85 at 3); (Doc. 72 at 5-6.)

         The Government in turn maintains that Special Agent Lace's role in the investigation was “limited” and that he is not part of the prosecution team. (Doc. 70, at 4 n.4.) The Government states (Doc. 82 at 3), however, that it has complied to date with its affirmative duty to seek out information in Special Agent Lace's possession that is favorable to Defendant, and that its disclosures have exceeded the scope of its obligations under Rule 16 and Brady. At oral argument, the Government clarified that it will review the communications of members of the prosecution team so that it can produce any impeachment material or additional Jencks Act material therein; the Government indicates that it will do so, however, closer to the time of trial.

         While the Court does not find the citations provided by the parties particularly helpful in defining who constitutes a “member of the prosecution team” for purposes of the Government's forthcoming review of prosecution team emails, [1] the Court finds pursuant to a factual inquiry that under these particular circumstances Special Agent Lace was a member of the prosecution team. Special Agent Lace was present for investigatory interviews conducted by Special Agent Ross (who was the case agent at the time) and Special Agent Capello (who is presently part of the prosecution team); Special Agent Lace had various contacts with two of the founders of Advanced Green Innovations (“AGI”) on unrelated investigations (which apparently yielded information pertinent to the instant case that Special Agent Lace then relayed to prosecutors); Special Agent Lace toured the AGI facility as part of his counterintelligence briefing at AGI; Special Agent Lace participated in the execution of the search warrants at AGI and was a “team leader” during the execution of the search warrants due to his familiarity with AGI; and Special Agent Lace was at one point added as a “participant to the [FBI's] investigation file” in this case by Special Agent Ross. Given this combination of unique facts, the Court finds that Special Agent Lace was a member of the prosecution team.

         Accordingly, it is ordered that the Government treat Special Agent Lace as a member of the prosecution team when reviewing communications among the prosecution team for potential disclosures. Upon reviewing Special Agent Lace's communications with members of the prosecution team, the Government shall disclose such communications consistent with the deadlines set forth in the Court's prior orders (Doc. 37, Doc. 78). If the communications contain Brady material, for example, they shall be disclosed as promptly after discovery as possible, but no later than March 30, 2020. (Doc. 78 at 5-6.) In accordance with the Government's request at oral argument, [2] any impeaching material or Jencks Act material contained in prosecution team communications shall be disclosed no later than 30 days before trial.

         II. Text Messages and the Jencks Act

         Pursuant to the Scheduling Order (Doc. 37), the Government was required to produce all Jencks Act material by July 1, 2019.[3] The Government maintains (Doc. 70, at 9-10) that it has routinely captured and produced electronic communications between agents and witnesses, consistent with its obligations under the Jencks Act and Federal Rule of Criminal Procedure 26.2, and that it will produce additional Jencks Act material after it finalizes its witness list and conducts a final review of prosecution team emails and text messages. Defendant does not dispute that the Government has properly disclosed emails to date. (Doc. 72, at 9.) Instead, Defendant asserts that the Government did not properly comply with its obligation to produce text messages. (Id.)

         The parties filed supplemental briefing addressing whether text messages can meet the definition of “statement” under 18 U.S.C. § 3500(e) and outlining the Government's disclosures to date of text messages under the Jencks Act. (Doc. 84, Doc. 87.) The parties agree that, under some circumstances, text messages may meet the definition of “statement” under 18 U.S.C. § 3500(e). The Government also averred at oral argument that it has ordered federal agents to preserve all emails and text messages exchanged between special agents and potential witnesses. The disputed questions, therefore, are: 1) whether text messages that were “exchanged to coordinate meeting places, times, and to make other logistic arrangements” constitute Jencks Act material; and 2) if so, whether such material is subject to immediate disclosure. Defendant argues that statements exchanged for the purpose of coordinating meeting places, times, and logistical arrangements “relate to” the subject matter of a witness' potential testimony, and therefore are required to be disclosed under the Jencks Act. Defendant moves for immediate disclosure of the texts. The Government agrees that text messages coordinating meeting places, times, and other logistics may potentially fall within the subset of statements that are required to be disclosed under the Jencks Act. But the Government disavows that it has any obligation to review and evaluate every federal agent's text messages at this juncture for potential Jencks Act disclosures.

         Preliminarily, the Court agrees that a text message may meet the definition of “statement” as outlined in the Jencks Act. 18 U.S.C. § 3500(e) (statement means “a written statement . . . signed or otherwise adopted or approved” by the witness). The Court further agrees with Defendant that statements about meeting times, meeting locations, and other logistical arrangements may potentially relate to the subject matter of a witness' testimony.[4] It is therefore ordered that, pursuant to the Jencks Act, the Government shall disclose text messages in its possession that were sent by a Government witness or a prospective Government witness if the text message relates to the subject matter of the witness' testimony, including text messages that were exchanged to coordinate meeting places, times, and other logistical arrangements. If the Government believes that certain statements about meeting times, locations, and logistical arrangements do not relate to the subject matter of the testimony of the witness, the Government must deliver such statement for the inspection of the court in camera. 18 U.S.C. § 3500(c). Consistent with the Government's request at oral argument, the Government must disclose all text messages constituting Jencks Act material, as outlined in this order, no later than 30 days prior to trial.

         III. Reciprocal Discovery

         Pursuant to the Scheduling Order, the close of reciprocal Rule 16 discovery is December 2, 2019. (Doc. 37.) The Court ordered supplemental briefing regarding the parties' respective positions on reciprocal discovery under Rule 16 after Defendant responded in his Reply in Support of his Motion for Discovery that the Court should “deny any attempt by the Government to impose an obligation on [Defendant] to review the Government's own data as part of [Defendant's] reciprocal discovery obligations.” (Doc. 72, at 10.)

         In its Supplemental Brief (Doc. 83), the Government states that it has complied with Defendant's requests for disclosures under Rule 16(a)(1)(E), and that therefore Rule 16(b)(1)(A) requires Defendant to produce the documents he intends to use in its case-in-chief. (Doc. 83 at 1-2.) The Government argues that Defendant must comply with reciprocal discovery by disclosing any of the search warrant evidence that he wishes to use at trial, if such evidence was not already disclosed to Defendant by the prosecution.[5](Id. at 3.) To date, the Government states that it has produced approximately 73, 695 pages of documents to Defendant. In his Supplemental Brief (Doc. 86 at 2) Defendant claims, for the first time, that his reciprocal discovery obligations have not yet been triggered because the Government has not met its obligation under Rule 16(a)(1)(E)(ii) to designate the material within its disclosures that the Government intends to use in its case-in-chief at trial.

         Rule 16(b)(1)(A) states that “[i]f a defendant requests disclosure under Rule 16(a)(1)(E) and the government complies, then the defendant must permit the government, upon request, to inspect and to copy . . . items if: (i) the item is within the defendant's possession, custody, or control; and (ii) the defendant intends to use the item in the defendant's case-in-chief at trial.” Fed. R. Crim. P. 16(b)(1)(A). Rule 16(a)(1)(E) requires the Government to permit the defendant to inspect and copy all items in the Government's possession that are material to the defense, that the government intends to use in its case-in-chief, or that were obtained from or belong to the defendant. Fed. R. Crim. P. 16(a)(1)(E)(i)-(iii).

         To support his argument that his reciprocal discovery obligations have not been triggered, Defendant cites United States v. Crowder, 325 F.Supp.3d 131 (D.D.C. 2018), where a district judge of the United States District Court for the District of Columbia acknowledged that “the text [of Rule 16(a)(1)(E)(i)-(iii)] is less clear as to how specific the government's disclosure must be to ‘compl[y]' with a defendant's Rule 16(a)(1)(E) request, ” but nonetheless held that the defendant's reciprocal discovery obligations are not triggered until the Government identifies the exhibits, documents, and other evidence it intends to use its case-in-chief. See Crowder, 325 F.Supp.3d at 135-36.

         As the Court indicated at oral argument, it declines to follow Crowder. First, while district court opinions may be relevant for their persuasive authority, this Court is not bound by the opinion of another judge of the same or different district. See Starbuck v. City and County of San Francisco, 556 F.2d 450, 457 n.13 (9th Cir. 1977). Second, the Court notes that other district courts have decided not to read into the text of Rule 16 the requirement that the Government identify which documents it intends to use at trial. See, e.g., United States v. Nachamie, 91 F.Supp.2d 565, 568-69 (S.D. N.Y. 2000); United States v. Causey, 356 F.Supp.2d 681, 686-87 (S.D. Tex. 2005). Third, the Government may, at the present time, intend to use in its case-in-chief all of the 76, 695 pages it has disclosed, and nothing in Rule 16 prevents the Government from narrowing its list of exhibits as it prepares for trial over the next five months. See Causey, 356 F.Supp. at 687 (where Government agreed to provide an exhibit list to defendant in advance of trial, Government's initial disclosure of 300, 000 “hot documents” was not just a “perfunctory invitation to look at the contents of a file.”).

         In sum, the Court declines to read into the plain text of Rule 16 the requirement that the Government identify the evidence or exhibits within the universe of discovery documents that it intends to use in its case-in-chief. Rule 16(b)(1)(A) triggers reciprocal discovery by the defendant if he “requests disclosure under Rule 16(a)(1)(E) and the government complies . . . .” Because the Government has complied with Defendant's requests for disclosures under Rule 16(a)(1)(E), which includes disclosing the evidence in its possession that it intends to use in its case-in-chief, [6] the Court finds that Government has complied with Rule 16(a)(1)(E). Therefore, Defendant's reciprocal discovery obligations have been triggered under Rule 16(b)(1)(A).

         Defendant's objection notwithstanding, at oral argument Defendant agreed to produce his initial reciprocal discovery on December 2, 2019, in accordance with this Court's prior order. (See Doc. 37.) Consistent with the parties' agreement at oral argument, it is ordered that Defendant shall continue to disclose all known items within his possession, custody, or control that he intends to use in his case-in-chief, if such items are not contained within the approximately 73, 695 pages of documents that were already produced to Defendant by the prosecution. It is further ordered, consistent with the parties' agreement at oral argument, that Defendant may continue to produce such items on a rolling basis as he locates them within the 4 terabytes of data that he received from the filter team.

         IV. ...


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