Doc 47 OCR extract - part 2: GOVERNMENT'S OMNIBUS RESPONSE TO DEFENDANT MANGIAPANE'S PRE-TRIAL MOTIONS
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B. The Defendant's Motion for a List of Witness Not Being Called at Trial Should be Denied
The defendant's motion (DJ. 36) seeks an order requiring the government to provide him with a list of the names/addresses of "persons who witnessed the actions or offenses charged in the indictment, but whom the [government] does not intend to call at the trial of this case." This motion should be denied.
Rule 16 of the Federal Rules of Criminal Procedure does not require the government to identify its witnesses to the defense in advance of trial (either directly or by identifying who it is not calling as a witness). Long-standing Third Circuit case law has reaffirmed this point. See, e.g., United States v. Casseus, 282 F.3d 253, 257 (3d Cir. 2002) ("in no event" is government required to divulge identity of witnesses in a non-capital case) (citing United States v. Addonizio, 451 F.2d 49, 62 (3d Cir. 1972)); United States v. DiPasquale, 740 F.2d 1282, 1294 (3d Cir. 1984).
This Court does have the discretion to order the production of a witness list, but such disclosure is not required by statute or the Constitution. Govt. of the Virgin Islands v. Martinez, 847 F.2d 125, 128 (3d Cir. 1998). In accordance with this principle, the government will adhere in this case to its usual practice of providing the defendant (as well as the Court) with its expected witness list at the time of jury selection. The defendant has offered no credible reason why this will not suffice The defense may not demand disclosure of witness identities while relying only on an "abstract, conclusory claim that such disclosure [is] necessary to its proper preparation for trial." United States v. Solomonyan, 451 F. Supp. 2d 626, 645 (S.D.N.Y. 2006) (citing cases). The same abstract, conclusory claim cannot support the disclosure of a list of non- witnesses.
In support of his motion, the defendant relies upon a 1984 Ninth Circuit decision that has not been adopted in this circuit -- and the substance of which has been rejected previously by a judge of this Court. United States v. Cadet, 727 F.2d 1453 (9th Cir.1984). In Cadet, the Ninth Circuit held that the district court did not abuse its discretion in ordering the government to disclose the names and addresses of persons who had personally observed the alleged crimes, even if the government did not intend to call those people as witnesses. 727 F.2d at 1469. This Court rejected an identical application in United States v. Boffa, 513 F. Supp. 444, 502 (D. Del. 1980), holding that "[t]here is no statutory basis for such broad requests," which "far exceed the parameters of Rule 16(a)(1)(C)." [3]The defendant's motion should similarly be denied on this ground.[4]
C. The Defendant's Motion for Jencks Act Materials in Advance of Trial Should be Denied as Moot
The defendant requests an Order directing the government to provide Jencks Act materials, 18 U.S.C. §3500, in advance of trial. This motion (DI 37) should be denied as moot. The government will continue to adhere to its long-standing policy of providing Jencks Act materials to the defendant no later than three business days before trial unless to do so would, in the judgment of the prosecutor, jeopardize the safety of a witness. Given that this practice exceeds the government's obligations under the statute, the defendant's motion should be denied as moot.
[3]The request in Boffa read as follows:Disclosure of the names and addresses of all persons reasonably believed by the Government to have relevant knowledge, or who purport to have such knowledge, of the events alleged in the indictment, whom the Government does not intend to call as witnesses during its ease-in-chief. 513 F. Supp. at 502.
[4]Cadet has not been widely followed; indeed, numerous courts have rejected its broad discovery rule, instead requiring the defendant to make a showing of materiality before requiring this type of disclosure. See, e.g., United States v. Lujan, 530 F. Supp. 2d 1224, 1249-50 (D.N.M. 2008); United States v. Edelin, 128 F. Supp. 2d 23, 33 (D.D.C. 2001); United States v. Hsin-Yung, 97 F. Supp. 2d 24, 35-36 (D.D.C. 2000); United States v. Rosenthal, 1991 WL 267767 (S.D.N.Y. Dec. 3, 1991) (unpublished decision). This is particularly the case where, as here, the pool of potential witnesses with knowledge of some relevant facts is large, and it would be impractical for the government to call all persons who have any knowledge of the facts of the case. Rosenthal, supra, at *5. The defendant's motion makes no showing whatsoever of the materiality of any specific non-testifying witness. Indeed, his motion makes no mention of either the facts or the allegations in this case.
D. The Defendant's Motion for Production of Grand Jury Testimony Incorporating Any Trial. Witness's Statements Through an Intermediary Should be Denied
The defendant's motion (D.I. 38) seeks an order under the Jencks Act, 18 U.S.C. §3500, requiring the government to provide the grand jury testimony of witnesses who do not testify at trial if such a grand jury witness's testimony incorporates the hearsay statements of a government trial witness. This request is contrary to the plain language of the Act, and should be denied.
The Jencks Act requires the government to provide any relevant statement of a trial witness in its possession once that witness testifies on direct examination at trial. 18 U.S.C. §3500(b). "Statement" is a term of art defined in section 3500(e). It includes written statements made. or adopted by the witness, 18 U.S.C. §3500(e)(1), and statements made by the witness to the grand jury, 18 U.S.C. §3500(e)(3). The plain language of the Jencks Act is clear that the only statements that need be produced are those made by the trial witness or adopted by him/her; it contains no provision requiring the production of statements by persons other than the witness him/herself.
The Third Circuit, in an unpublished decision, applied this plain language and denied the identical claim raised by the defendant in his motion. United States v. Spurell, 245 Fed. Appx. 127 (3d Cir. Aug. 17, 2007). In Spurell, the defendant was charged with possession of a firearm by a prohibited person, arising out of his arrest by Philadelphia police officers. The arresting officers testified at trial, but did not testify before the grand jury. An ATF agent, by contrast, did testify before the grand jury, but did not testify at trial. The defendant sought an order requiring the government to disclose the ATF agent's grand jury testimony, arguing -- as defendant Mangiapane does here -- that that testimony would incorporate statements made to the ATF agent by the government's trial witnesses (i.e. the police officers). Id. at 128-29.
The Third Circuit held that the defendant's claim was properly denied under the Jencks Act. Id. The court held succinctly:
. . . there is no obligation under the Jencks Act for the Government to provide statements made by a witness who does not testify at trial. Here, the ATF agent did not testify at trial. Indeed, none of the witnesses who testified at trial testified to the grand jury. There was no error in the Government's failure to provide the ATF agent's grand jury testimony . . . . Id. at 129. The Seventh Circuit reached the same conclusion in United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985). There, the government relied at trial on the testimony of a cooperating co-defendant. The cooperating co-defendant had not testified before the grand jury; instead, a FBI agent had testified before the grand jury about the cooperating co-defendant's statements. The FBI agent did not testify at trial. Id. at 1533. The defendant sought the FBI agent's testimony under the Jencks Act. The Seventh Circuit rejected the claim:
But the agent did not testify at trial, and the Jencks Act is therefore inapplicable. It applies only to statements of the "witness," §3500(a), and then only after the witness has testified. There can be no plausible argument that what the agent said is a "written statement of [the cooperator], a "substantial verbatim" report of an oral statement of [the cooperator's], or a "statement . . . if any, made by said witness to a grand jury."
Id. (emphasis added).
The same result should apply here. If a witness testifies at trial, his/her grand jury statements will be provided in accordance with the Jencks Act. If a grand jury witness does not testify at trial, the government is not required to produce his/her testimony under Jencks, regardless of its content.[5] The defendant's motion should be denied.
[5]1f that transcript contains Brady information, or is otherwise discoverable under Fed. R. Crim. P. 16, it will be produced at an appropriate time.
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Doc 47 OCR extract - part 2
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