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United States v. Begay

United States District Court, D. New Mexico

October 19, 2017


          Damon P. Martinez United States Attorney Kyle T. Nayback Novaline Wilson Michael D. Murphy Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          John F. Samore Albuquerque, New Mexico Attorney for the Defendant


         THIS MATTER comes before the Court on the Defendant's Motion and Memorandum to Compel Investigative Notes and Early Disclosure of Jencks Material, filed June 4, 2014 (Doc. 17)(“Motion”). The Court held a hearing on July 8, 2014. The primary issues are: (i) whether the Court should compel the production of investigative notes in Plaintiff United States of America's possession that relate to interviews federal law enforcement agents conducted of potential trial witnesses; and (ii) whether the Court should compel production of the evidence Begay seeks no later than thirty days before trial. The Court concludes that: (i) the Court need not compel the United States to produce the investigative notes, because the United States has already produced or volunteered to produce them; and (ii) the Court need not compel production of the evidence Begay seeks no later than thirty days before trial, because the United States has agreed to make that production. Accordingly, the Court denies the Motion without prejudice to renew if necessary.


         On March 11, 2014, a federal grand jury indicted Begay for one count of violating 18 U.S.C. §§ 1153, 2241(c), Aggravated Sexual Abuse, and three counts of violating 18 U.S.C. §§ 1153, 2244(a), 2246(3), Abusive Sexual Contact. See United States' Response in Opposition to Defendant's Motion and Memorandum to Compel Investigative Notes and Early Disclosure of Jencks Material, filed June 17, 2014 (Doc. 19)(“Response”). During discovery, the Federal Bureau of Investigation (“FBI”) interviewed Begay and the alleged victims. See Motion at 2. Begay requests various notes that FBI agents took during these interviews. See Motion at 2. Specifically, Begay requests “[i]nvestigative notes taken of any interviews of the Defendant, ” “investigative notes taken of any potential witness statements by the Government, ” and “any Government . . . agent's notes of interviews of persons who are or may be witnesses at hearing or at trial.” Motion at 2-3.

         1. The Motion.

         In the Motion, Begay argues that “[t]he government has an obligation to produce exculpatory material which includes investigative notes.” Motion at 4 (citing United States v. Padilla, No. CR 09-3598, 2011 WL 1103876, at *5 (D.N.M. 2011)(Browning, J.)). He argues that the “Jencks[1] Act codified the Defense's right to any relevant statements or reports in the Government's possession relating to its witnesses and touching the subject matter of their testimony at trial.” Motion at 5 (citing 18 U.S.C. § 3500(a)-(b)).

         Begay further argues that the FBI agent who interviewed him likely took notes regarding the interview, but does not confirm that the agent took notes. See Motion at 11. Begay concludes that the “Government counsel should be held responsible on the record for whatever investigative notes have been taken and are preserved.” Motion at 12.

         2. The Response.

         The United States responds to the Motion. See Response at 1. The United States asserts that, “[b]ecause the information Defendant seeks has either already been disclosed by the government or clearly fall[s] outside discovery obligations, the government requests his motion be denied.” Response at 1. According to the United States, the “Defendant does not dispute that recorded interviews and reports were provided. He only asserts that agents' investigative notes have not been disclosed.” Response at 1. The “Defendant offers nothing but speculation that the notes contain any material to which he is entitled to under the rules of criminal discovery.” Response at 2.

         The United States details the recordings and reports it has already given to Begay from the various victim and witness interviews which the FBI conducted. See Response at 2-4. The United States then explains that, when FBI Special Agent Jennifer Sullivan interviewed Begay on the morning of July 30, 2013, the interview was not recorded, and Sullivan did not take notes. See Response at 4. The interview later in the day, which Sullivan and Navajo Nation Criminal Investigator Darryl Boyd conducted, “was audio-recorded and disclosed to Defendant.” Response at 4. FBI Special Agent Matt Schaffer relied on the recording to draft a report summarizing the latter interview. See Response at 5. The United States disclosed that report. See Response at 5. Boyd “took down demographic information and brief notes during Defendant's audio-recorded afternoon interview.” Response at 5.

         The United States argues that “[a]ny demographic information or notes taken by Sullivan, Ms. Blackwell, or Boyd during the course of the interviews is included in both the audio and video-recordings and their corresponding 302 reports.” Response at 5. “As such, Defendant's request for this information is moot and outside the scope of discovery.” Response at 5-6.

         The United States continues that it must disclose two categories of material under Brady, [2]“(1) material that tends to be exculpatory and (2) material that may be used to impeach or discredit government witnesses.” Response at 6 (citing United States v. Ruiz, 536 U.S. 622, 628 (2002)). Regarding the first category, the United States “believes that it has provided all material in its possession.” Response at 6. Regarding the second category, the United States argues that “well-settled case law makes clear that disclosure of evidence that may be used to discredit government witnesses is not directly exculpatory and need not be disclosed well in advance of trial.” Response at 9.

         Regarding Begay's request for early Jencks material, the United States argues that, “under the plain language of § 3500, Jencks Act statements are not discoverable until the declarant witness has testified on direct examination, either at a trial or [at] certain pre-trial hearings.” Response at 11 (citing Fed. R. Crim. P. 26.2(g)). The United States concludes that, “[b]ecause the discovery Defendant seeks has either already been provided or falls outside the United States' disclosure obligations, the Court should deny the Defendant's motion.” Response at 12.

         3. The Hearing.

         The Court held a hearing on July 8, 2014. See Draft Transcript of Motion Proceeding (taken July 8, 2014)(“Tr.”).[3] Begay began by explaining that “we are asking that not just the notes taken of my client's interview, but the notes taken of any Government witness that may be called at trial, and we also ask . . . [for] any witness the Government interviews.” Tr. At 14:19-23 (Samore). Regarding the third category, Begay conceded that “I don't have any new sources, Judge, to say they have to disclose any witness they interview, but I do make that argument anticipating that the Court will turn it down.” Tr. at 15:5-9 (Samore).

         Begay continued that he was “concerned that apparently [Agent] Sullivan . . . is representing that she took no notes. We think that is contrary to the record that will emerge at trial, and we would ask that at the very least the Government . . . state on the record the source of that information.” Tr. at 15:18-24 (Samore). Begay concluded by requesting that “anything the Government has of any of these agents regarding these interviews . . . we would ask that the Government commit on the record whether or not it has notes, whether it's disclosing everything, what the source is of any representations regarding any of these three agents . . . .” Tr. at 17:8-16 (Samore).

         The United States began by stating that it “is prepared to disclose . . . notes from Special Agent Matt Schaffer, Criminal Investigator Boyd, and forensic interviewer Karen Blackwell.” Tr. at 18:17-20 (Wilson). The United States contended that it “complied with all of [its] discovery obligations under the law.” Tr. at 18:22-23 (Wilson). According to the United States, “Special Agent Sullivan did not take notes, nor was that interview recorded.” Tr. at 19:7-9 (Wilson). The Court asked: “Is that from your conversations with Ms. Sullivan?” Tr. at 19:11-12 (Court). The United States replied: “Yes. And also with the agent in charge. So I did talk to them.” Tr. at 19:13-14 (Wilson). The Court then asked: “Who is the agent in charge?” Tr. 19:15 (Court). The United States replied: “Special Agent Schaffer.” Tr. at 19:16 (Wilson). The Court asked: “He's the agent, and Schaffer talked to Sullivan?” Tr. at 19:17-18 (Court). The United States confirmed: “Yes.” Tr. at 19:19 (Wilson). The Court then asked: “So you have the information from two sources?” Tr. at 19:20-21 (Court). The United States confirmed: “Yes.” Tr. at 19:22 (Wilson).

         The Court then asked: “Is there anything that you understand Mr. Samore's requesting that you're not producing or have not produced?” Tr. at 19:23-25 (Court). The United States replied: “[W]e've turned over everything that has been disclosed to me from the case agent as part of the case. And then I also, based on counsel's motion, inquired if there were any further documents, and that's what I would be disclosing today.” Tr. at 20:1-6 (Wilson). The Court further inquired: “Are you aware of any witness interviews related to this case that you have not turned over . . . say some witnesses that you don't intend to call at trial or anything like that?” Tr. at 20:10-15 (Court). The United States replied: “Not that I'm aware of.” Tr. at 20:16 (Wilson).

         The Court then said to Begay: “It sounds to me like I should . . . deny your motion without prejudice to renew . . . . It sounds like there is nothing more that you seek that the Government hasn't either given or committed to giving.” Tr. at 21:9-14 (Court). The Court asked: “I thought Ms. Wilson said [the United States is] producing the notes, correct?” Tr. at 21:20-21 (Court). The United States replied: “Yes, Your Honor.” Tr. at 21:22 (Wilson).

         Begay responded that he was “concerned in the wording of the Court's dialogue with [the United States] that we didn't cover notes that may not have been provided or may not have been requested, and I think Kyles[4] makes very clear that the Government has to ask that question of those agents.” Tr. at 22:13-18 (Samore). Begay continued, saying that he “would ask each of the four agents that were mentioned -- Blackwell, Schaffer, and Boy[d] and . . . Sullivan, ” if they had provided the United States with “all notes that [they] took during the course of [their] investigation.” Tr. at 23:2-8 (Samore). The United States represented that it had asked that question, and that it disclosed notes from Schaffer, Boyd, and Blackwell. See Tr. at 23:11-15 (Wilson). Eventually, Begay said: “I think the Court's idea is a good one, that we -- based upon the Government's representation . . . is to say denied without prejudice to refile if the disclosure proves inadequate.” Tr. at 23:18-24 (Samore).

         Regarding the Jencks Act, the Court said to Begay that “it does look like the Government is willing to give you early production.” Tr. at 25:1-3 (Court). The Court then asked the United States if it could disclose Jencks material 30 days before trial. See Tr. at 26:14-16 (Court). The United States responded that it could make that early production. See Tr. at 26:16 (Wilson). Begay said that such an arrangement is fair. See Tr. at 26:21 (Samore). Regarding producing grand jury transcripts, the United States also indicated that it could produce them thirty days before trial, and Begay indicated that such an arrangement is fair. See Tr. at 26:22-27:5 (Court, Wilson, Samore).

         The Court then observed: “[I]t looks like we worked everything out, or the Government has made the agreements or concessions or representations, so I'll deny the motion [without] prejudice to remove.” Tr. at 27:8-12 (Court). Begay then asked if the order would state that it is based on the United States' representations, and the Court indicated that it would make that statement. See Tr. at 27:14-20 (Samore, Court). The Court added: “I'll probably just deny the motion but also indicate what the representations were.” Tr. at 27:19-20 (Court). Begay concluded “that would be fair.” Tr. at 27:21 (Samore).


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