United States v. Thevis

84 F.R.D. 47, 1979 U.S. Dist. LEXIS 11246
District Court, N.D. Georgia·Decided July 3, 1979·No. Crim. A. No. CR78-180A·Published·Cited by 15 cases

Opinion

HAROLD L. MURPHY, District Judge.

This order arises from the submission of defense motions for pretrial discovery pursuant to Rule 16, F.R.Cr.P., and the consti[50]*50tutional mandate of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1962).1

The indictment in this case alleges that ten different crimes were committed over a ten year period beginning in 1968. ' Four conspiracies are alleged, as well as six substantive violations. Six defendants are charged, four of whom are individuals, the remaining two corporations.2

The investigation of the affairs of defendant Thevis, his companies, and associates has been massive. In an in camera hearing, representatives of the F.B.I. estimated that their investigation alone had assembled approximately thirty thousand documents. Not unsurprisingly, the defendants believe that at least some of these materials would be discoverable under Rule 16 or as exculpatory information under the Brady doctrine. While the government acknowledges its obligations under Rule 16 and Brady, it disputes the timing of the allowed discovery and the extent to which the requested discovery would infringe on its ongoing investigation and case preparation.

I

The following timetable will control requests for disclosure of discoverable materials under Rule 16 or the constitutional imperative of Brady and its progeny:

(1) Requests for Rule 16(a)(1)(A) and Rule 16(a)(1)(B) shall be disclosed to the defendants as soon as reasonably possible.

(2) Specific requests for Rule 16(a)(1)(C) or Rule 16(a)(1)(D) materials which also contain Brady materials shall be disclosed to the defendants as soon as reasonably possible.

(3) General or non-Brady specific requests for Rule 16(a)(1)(C) or Rule 16(a)(1)(D) shall be disclosed to the defendants after the defendants make a prima facie showing of materiality.

(4) Requests for exculpatory Brady materials shall be disclosed to the defendants prior to July 20,1979, or if the materials are discovered by the government after that date, as soon thereafter as reasonably possible.

(5) Requests for Brady materials useful for impeachment shall be disclosed prior to August 1, 1979 or as soon thereafter as discovered for those government witnesses who have already been identified in the record of this proceeding and for those govern witnesses who are currently under government protection.

(6) Requests for Brady materials useful for impeachment for all other witnesses shall be disclosed seven days prior to the expected direct testimony of the government witness.

In Part II of this order, the Court will set forth its reasoning which underlies the disclosure timetable set forth supra, and in Part III, the Court will analyze the generic requests for discovery.

II

Resolution of the issues presented by the discovery motions requires consideration of three distinct mandates: Rule 16, Brady and its progeny, and the Jencks Act, 18 U.S.C. § 3500. Not only the scope of disclosure, but the timing of the allowed discovery turns on the interplay of Brady’s constitutional command upon the statutory mandates of Rule 16 and the Jencks Act.

Pretrial discovery must begin with Rule 16, and at the outset, it must be recognized that the discovery under Rule 16(a)(1)(A) and (B) is mandatory, 8 Moore’s Federal Practice ¶ 16.30, and absent a [51]*51government motion for a protective order, see, Rule 16(d)(1), it must be allowed as soon as reasonably possible.

Discovery under Rule 16(a)(1)(C) or (D) is dependent on a showing by the defendant that it is “material to the preparation of his defense . . . .”3 In order to obtain discovery under these provisions, it is necessary that the defendant make a prima facie showing of materiality. United States v. Buckley, 586 F.2d 498, 506 (5th Cir. 1979); United States v. Johnson, 577 F.2d 1304 (5th Cir. 1978). “Materiality,” as defined by this Circuit means,

more than that the evidence in question bears some abstract logical relationship to the issues in the case. . . . There must be some indication that the pretrial disclosure of the disputed evidence would have enabled the defendant significantly to alter the quantum of proof in his favor. United States v. Ross, 511 F.2d 757, 762—763 (5th Cir. 1975), cert. denied 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975), quoted in Buckley, supra at 506.

While the “materiality” standard as enunciated in Johnson, supra, might conflict with the more liberal discovery practices recognized by both court and commentator, its practical effect is seriously undercut by the constitutional mandate of Brady v. Maryland, supra.

Before considering that mandate, suffice it to state that in the absence of Brady considerations, discovery under Rule 16(a)(1)(C) or (D) shall be allowed as soon as reasonably possible after the defense makes a prima facie showing of materiality. This showing may be had made by affidavit, counsel’s statement in his place, or otherwise. By this, the Court does not mean to preclude formal evidentiary hearings to allow the defendant to carry his showing of materiality, but it does mean to obviate such hearings if the same record can be produced by less formal, more efficient, trustworthy means.

The constitutional command of Brady is that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment . . . .” Brady, supra 373 U.S. at 87, 83 S.Ct. at 1196-97. As interpreted by the Fifth Circuit, the Brady mandate also includes evidence important or useful for impeachment purposes. Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968), cert. denied 393 U.S. 1105, 89 S.Ct. 908, 21 L.Ed.2d 799 (1968); United States v. Hildebrand, 506 F.2d 406 (5th Cir. 1975), cert. denied 421 U.S. 968, 95 S.Ct. 1961, 44 L.Ed.2d 457 (1976).

While the fundamental basis for the disclosure required by Brady is that due process guaranteed by the Fifth Amendment, that same due process does not guarantee pretrial disclosure in every case. “Brady is not a discovery rule, but a rule of fairness and minimum prosecutorial obligation.” United States v. Beasley, 576 F.2d 626, 630 (5th Cir. 1978).

However, when a Rule 16 request seeks information which is within the ambit of both that statutory rule and the constitutional directive of Brady

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United States v. Thevis, 84 F.R.D. 47, 1979 U.S. Dist. LEXIS 11246 (N.D. Ga. 1979).

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