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United States Attorney Policy Memorandum Western District of Oklahoma • CR 14 œ

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United States Attorney Policy Memorandum Western District of Oklahoma • CR 14 œ United States Attorney Policy Memorandum Western District of Oklahoma CR 14 Date: October 15, 2010 Subject: Discovery Policies and Procedures In Criminal Prosecutions This memorandum describes the policy of the United States Attorney’s Office for the Western District of Oklahoma relating to the identification, acquisition and disclosure of discovery material in criminal cases. In general this memorandum will discuss an Assistant United States Attorney’s (AUSA)1 disclosure obligations under federal rules, federal statutes, case law, local rules and policies of the Department of Justice. Additionally, this memorandum will discuss the relationship among AUSAs, agents, local law enforcement, federal agencies and any other agency/individual who may be considered a member of the “prosecution team.” This policy is intended to provide consistency in our discovery practice while at the same time provide flexibility and discretion to AUSAs in individual cases.2 AUSAs should remember that complete and early discovery is in the best interest of the government and the defendant. AUSAs are obligated to comply with the continuing duty to disclose discoverable material. This policy provides internal guidance to AUSAs in the Western District of Oklahoma3 and cannot be relied upon to create any substantive or procedural rights enforceable at law by any person in any administrative, civil or criminal matter. United States v. Caceres, 440 U.S. 741 (1979). 1 As used in this policy, “AUSA” includes Special Assistant United States Attorneys and DOJ lawyers working on a case in this district. 2 This is an internal policy and is not for dissemination outside the United States Attorney’s Office for the Western District of Oklahoma. 3 This policy is composed of attorney work product having been prepared in contemplation of foreseeable criminal litigation and containing insights and advice in anticipation of issues that likely will be encountered in such litigation. Additionally, this discovery policy is part of a deliberative process within the USAO intended to encourage continued open and frank discussions between AUSAs and supervisors in contemplation of reasons and rationales for any future changes. I. Government’s Obligations A. Federal Rule of Criminal Procedure 16 Fed. R. Crim. P. 16(a) sets forth the government’s basic discovery obligations. Discovery obligations also are reflected in the Joint Statement of Discovery required by Local Criminal Rule 16.1. An AUSA must disclose the following material: < Substance of any relevant oral statement made by the defendant in response to interrogation by a known government agent; < Any relevant written or recorded statement of the defendant within the possession of the government that the attorney for the government knows exists or through due diligence could know exists; < For an organizational defendant, any statement made by a person capable of legally binding an organization or a person legally involved in the offense and capable of binding the organization; < Defendant’s prior record; < All documents or other tangible evidence the government plans to introduce in its case-in-chief or which are material to the defense; < Reports of physical, mental, or scientific examinations (such as handwriting analysis, drug analysis, fingerprint reports) to be introduced by the government in its case-in- chief or which are material to the defense; < Expert witness disclosures and summaries. Disclosure of witness statements is not controlled by Fed. R. Crim. P. 16 but rather is governed by the Jencks Act, 18 U.S.C. § 3500, and Fed. R. Crim. P. 26.2. 2 B. Witness Statements 1. The Jencks Act, 18 U.S.C. § 3500 The Jencks Act, 18 U.S.C. § 3500, requires the government to make a “witness statement” available to the defense after the witness testifies on direct examination. A witness statement includes writings that the witness made and signed or adopted; recordings and transcribed statements of the witness; substantially verbatim written recordings by a person interviewing the witness; and grand jury transcripts.4 While as a matter of law, a court cannot order the government to disclose a witness’ statement before the witness has testified at trial, the policy of this office requires disclosure of witness statements, including grand jury transcripts, sufficiently in advance to allow the defense to make use of the information. If a threat against a witness exists, an AUSA may consider delaying disclosure of the statement until closer in time to the start of trial, and seek a protective order limiting the dissemination of the statement to defense counsel only. An agency report of an interview of a witness typically is not a “witness statement” because the report is not substantially verbatim and has not been adopted by the witness. However, it is the practice of this office to disclose interview reports of witnesses who will be called by the government at trial. While judges and defense counsel often treat agents’ interview reports as witness statements, AUSAs should resist that characterization of the reports. Disclosure of non-testifying witnesses is left to the discretion of the AUSA on a case-by-case basis; however, an AUSA should take care to examine these statements for Brady and/or Giglio material. Should an AUSA have any reservation about whether a particular witness statement may assist the defense, you should err on the side of disclosing the statement. At a minimum, an AUSA should consult with the Criminal Chief, Deputy Criminal Chief or Senior Litigation Counsel about disclosing the statement. If a witness statement contains Brady and/or Giglio material, it should be disclosed sufficiently in advance of any evidentiary hearing or trial to allow the defense to make use of it, regardless of whether the government intends to call the witness at trial. In addition, an AUSA should disclose to the defense the statements of all witnesses the government intends to call at trial not less than 14 days before trial.5 If a new witness becomes known to the government shortly before 4 Fed. R. Crim. P. 49.1 requires redaction of certain categories of information from statements that will be made part of the record including social security numbers, date of birth, financial account numbers, names of minors and street address of witnesses. 5This 14- day period is established in the Joint Statement of Discovery Conference pursuant to the Local Court Rules. 3 trial or even during the trial, the government should provide the witness’ statement to defense counsel as promptly as possible either in the form of a new investigative report or a letter disclosing the substance of the statement. If early disclosure of Brady and/or Giglio material would subject a witness to harassment, intimidation or threaten an ongoing investigation, an AUSA should consider filing an ex parte sealed motion and proposed order requesting the court delay the disclosure of such witness statement until a specific date and request a protective order limiting the dissemination of the statement to defense counsel. In this District, disclosure of an agent’s rough notes of a witness interview is not required when the notes are reduced to a formal report and provided to the defense. If there is a reason to believe that the agent’s notes may materially vary from the written report, an AUSA should review the notes. Absent a court order, a prosecutor generally should not turn over agent notes unless there is no other means available to meet the government’s discovery obligations. 2. Federal Rule of Criminal Procedure 26.2 As a practical matter, AUSAs should be aware that Fed. R. Crim. P. 26.2 is similar to 18 U.S.C. § 3500, except that it applies to the government and the defense. This rule incorporates the Supreme Court’s holding in United States v. Nobles, 422 U.S. 225 (1975), which upheld a district court’s refusal to permit a defense investigator from testifying about his interviews of witnesses until the court had inspected his reports and then turned the relevant portions over to the government for use in cross-examination. Similar to the government’s duties under the Jencks Act, Fed. R. Crim. P. 26.2 requires the defendant to produce statements of witnesses who will be called to testify, excluding a statement of the defendant. Furthermore, if a defense counsel fails to comply with an order to deliver a statement of a witness to the attorney for the government, the rule requires the district court order the testimony of the witness to be stricken from the record. If the government disobeys a court order to produce a statement the court may declare a mistrial, if in the interest of justice. Fed. R. Crim. P. 26.2 applies equally to the government and defense at trial, suppression hearings, sentencings, hearings to revoke or modify probation or supervised release, detention hearings and preliminary hearings. C. Brady and Giglio In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held the suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is 4 material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Nine years later, in Giglio v. United States, 405 U.S. 150, 154 (1972), the Supreme Court held that Brady material includes information that might be used to impeach key government witnesses. The Court reasoned that when the reliability of a given witness may well be determinative of guilt or innocence, non-disclosure of evidence affecting a witness’s credibility falls within the general rule of Brady. Impeachment as well as exculpatory evidence falls within the rule of Brady v. Maryland. United States v. Burke, 571 F.3d 1048 (10th Cir. 2009). For discovery purposes, Brady and Giglio material are somewhat distinctive with “Giglio material” being the label for impeachment evidence, and “Brady material” being the label for every other kind of evidence that could be helpful to the defendant’s efforts to create a reasonable doubt (exculpatory evidence) or receive a lower sentence (mitigating circumstances).
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