United States v. Heck

218 F.R.D. 684, 2003 U.S. Dist. LEXIS 21224, 2003 WL 22804913
CourtDistrict Court, D. Kansas
DecidedOctober 14, 2003
DocketNo. 02-40069-03-SAC
StatusPublished

This text of 218 F.R.D. 684 (United States v. Heck) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Heck, 218 F.R.D. 684, 2003 U.S. Dist. LEXIS 21224, 2003 WL 22804913 (D. Kan. 2003).

Opinion

MEMORANDUM AND ORDER

CROW, Senior District Judge.

The case comes before the court on the motion of the defendant Paige A. Heck for the production of investigative interview reports of .government witnesses. (Dk. 232). At the status conference, Ms. Heck’s counsel argued that it was the government’s duty to produce these interview reports as Jencks Act statements of either the testifying government agents who wrote the reports or the testifying government witnesses who were interviewed. The government opposed the request because it believes those interview reports which have not been produced do not relate to the government agents’ intended testimony and are not substantially verbatim recitals of the witnesses’s oral statements. The court directed the parties to brief the matters for the court’s consideration. Having received the defendant Paige Heck’s motion (Dk. 232) and the government’s response (Dk. 236) and having researched the law relevant to these issues, the court issues the following order.

The defendant argues that as part of the government’s investigation agent Brian Holt interviewed numerous individuals and then recorded the information obtained during the interviews in written investigative reports. The defendant argues these reports of interviews of persons who will be government witnesses at trial qualify as “statements” under Fed.R.Crim.P. 26.2 and 18 U.S.C. § 3500 because they contain substantially verbatim, contemporaneously recorded recitals of the witnesses’s oral interview on matters related to the subject matter of their testimony. Alternatively, the defendant maintains the investigative interview reports are statements because they are signed written statements of the interviewer, Agent Brian Holt.

In arguing that the reports are statements of the interviewed witnesses, the defendant’s counsel at page five of his memo[685]*685randum represents that the government permitted him to make a limited review of the reports and that “the reports in every instance appear to relate to the issues which the defendant anticipates that the witness will testify to on direct examination.” (Dk. 233). What is noteworthy by its absence from page five is any direct representation by defense counsel that the reports appear to contain substantially verbatim, contemporaneously recorded recitals of the witnesses’ oral interviews. Earlier in the memorandum is found the argument in that regard, but it is not accompanied by any similar direct representation by defense counsel. Thus, the government is incorrect in saying that the defendant “makes no argument or representation that the interview reports contain ‘substantially verbatim recitals’ of the witnesses’ statements to the interviewing agents.” (Dk. 236, p. 5) (italics added). The government firmly represents that the interview reports here do not contain such recitals and argues that interview reports typically do not contain substantially verbatim recitals.

In arguing that the reports are statements of the interviewing agent Holt, the defendant points to several authorities which have recognized that a law enforcement officer’s report can be the officer’s statement required to be produced under the Jeneks Act. The government represents that it has produced copies of certain interview reports related to the agents’ expected testimony but that it has withheld copies of those interview reports that are not relevant to expected testimony. The government denies that the agents will be testifying about what other witnesses told them during interviews.

GOVERNING LAW

Rule 26.2 of the Federal Rules of Criminal Procedure incorporates the rules from the Jeneks Act, 18 U.S.C. § 3500, and extends their applicability to defense witnesses and to other evidentiary hearings before and after trial. For ease of reference, the court will cite only Fed.R.Crim.P. Rule 26.2 but will rely on cases that cite and interpret either or both Rule 26.2 and the Jeneks Act.1

“[0]n motion of the party who did not call the witness,” the court must order the attorney for other party to produce “any statement of the witness that is in their possession and that relates to the subject matter of the witness’s testimony.” Fed.R.Crim.P. 26.2(a). “Statement” is defined as follows:

(1) a written statement that the witness makes and signs, or otherwise adopts or approves;
(2) a substantially verbatim, contemporaneously recorded recital of the witness’s oral statement that is contained in any recording or any transcription of a recording; or
(3) the witness’s statement to a grand jury, however taken or recorded, or a transcription of such a statement.

Fed.R.Crim.P. 26.2(f). In this case, as in most others, there are two general issues: (1) whether the statement made by the witness meets one of these definitions, and (2) whether the statement relates to the subject matter of the witness’s testimony.

For purposes of this motion, the first definition applies to the defendant’s argument that the reports are statements of the interviewing agents, and the second definition applies to the argument that the reports are statements of the interviewed witnesses. As there appears to be no dispute over the applicability of the first definition,2 the court will only discuss the second definition.

Notes from a witness’s interview can be a “statement” if they are “substantially verba[686]*686tim.” United States v. Smith, 984 F.2d 1084, 1086 (10th Cir.), cert. denied, 510 U.S. 873, 114 S.Ct. 204, 126 L.Ed.2d 161 (1993); United States v. Daniels, 174 F.Supp.2d 1205, 1207 (D.Kan.2001). The Supreme Court has said that a statement is a substantially verbatim recital if it can “fairly be deemed to reflect fully and without distortion what had been said to the government agent.” Palermo v. United States, 360 U.S. 343, 352, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). The Supreme Court has observed that this definition was:

[D]esigned to eliminate the danger of distortion and misrepresentation inherent in a report which merely selects portions, albeit accurately, from a lengthy oral recital. Quoting out of context is one of the most frequent and powerful modes of misquotation. We think it consistent with this legislative history, and with the generally restrictive terms of the statutory provision, to require that summaries of an oral statement which evidence substantial selection of material, or which were prepared after the interview without the aid of complete notes, and hence rest on the memory of the agent, are not to be produced. Neither, of course, are statements which contain the agent’s interpretations or impressions.

Id. at 352-53, 79 S.Ct.

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Related

Palermo v. United States
360 U.S. 343 (Supreme Court, 1959)
United States v. Patrick Joseph O'Brien
444 F.2d 1082 (Seventh Circuit, 1971)
United States v. John Glenn Peters
625 F.2d 366 (Tenth Circuit, 1980)
United States v. Manuel Bobadilla-Lopez
954 F.2d 519 (Ninth Circuit, 1992)
United States v. Curtis Dale Smith
31 F.3d 1294 (Fourth Circuit, 1994)
United States v. Rosa Motaka Lewis
35 F.3d 148 (Fourth Circuit, 1994)
United States v. Robert Martinez, Jr.
76 F.3d 1145 (Tenth Circuit, 1996)
United States v. Jackson
850 F. Supp. 1481 (D. Kansas, 1994)
United States v. Daniels
174 F. Supp. 2d 1205 (D. Kansas, 2001)
United States v. Smith
984 F.2d 1084 (Tenth Circuit, 1993)
United States v. Marshall
985 F.2d 901 (Seventh Circuit, 1993)

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Bluebook (online)
218 F.R.D. 684, 2003 U.S. Dist. LEXIS 21224, 2003 WL 22804913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-heck-ksd-2003.