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United States v. Campbell

United States District Court, S.D. Ohio, Western Division

June 14, 2019




         This criminal case is before the Court on the Government's motion for a protective order (Doc. 20) and the parties' responsive memoranda (Docs. 21, 22). Also before the Court is the Government's ex parte written statement in support of the protective order. (Doc. 23).[1]

         I. BACKGROUND

         On March 6, 2019, a federal grand jury returned a five-count indictment, charging Defendant Lelon Campbell with: distribution and attempt to distribute fentanyl, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count 1); possession with intent to distribute fentanyl, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) (Count 2); possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count 3); felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count 4); and possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c) (Count 5). (Doc. 17). As charged, Defendant faces up to 10 years imprisonment on Count 4, up to 20 years on Counts 1 and 3, a minimum mandatory of five years up to 40 years on Count 2, and a mandatory consecutive term of five years up to life on Count 5. See 18 U.S.C. § 924(a)(2), (c)(1)(A)(i), and (D)(ii); and 21 U.S.C. § 841(b)(1)(B), (b)(1)(C).

         Following a detention hearing, the United States Magistrate Judge found that, based upon Defendant's significant and lengthy criminal history, prior crimes of violence or use of a weapon, prior failures to appear, and prior violations of supervision, there were no conditions or combination of conditions that would reasonably assure Defendant's appearance or the safety of the community if Defendant were released. (Doc. 12). Accordingly, Defendant was ordered detained pending trial. (Id.)

         On March 21, 2019, the Court held a preliminary pretrial conference, during which the Government advised that it would seek a protective order from the Court prior to producing discovery. (Min. Entry, Mar. 21, 2019). Because Defendant intended to oppose the protective order, the Court established a briefing schedule, and the instant motion followed. (Id.)


         Pursuant to Fed. R. Crim. P. 16(d)(1), “[a]t any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief.” The Government bears the burden of showing ‘good cause' for a protective order, which showing must be made with sufficient specificity and cannot rest upon broad and unsubstantiated allegations. United States v. Stone, No. 10-20123, 2012 WL 137746, at *2 (E.D. Mich. Jan. 18, 2012).

         While Rule 16 “does not attempt to indicate when a protective order should be entered, it is obvious that one would be appropriate where there is reason to believe that a witness would be subject to physical … harm if his identity is revealed.” Fed. R. Crim. P. 16(d) advisory committee's note to 1974 amendment (emphasis added). Also relevant to the Court's consideration is whether the proposed protective order is no broader than necessary to accomplish its intended purpose, and whether Defendant has shown he is prejudiced by the imposed limitations. See United States v. Montgomery, 592 Fed.Appx. 411, 417 (6th Cir. 2014) (citing United States v. Davis, 809 F.2d 1194, 1210 (6th Cir. 1987)); United States v. Darden, No. 3:17-CR-00124, 2017 WL 3700340, at *2 (M.D. Tenn. Aug. 28, 2017).

         III. ANALYSIS

         The Government argues that “there is ‘good cause' to enter a protective order pursuant to Rule 16(d)(1) because this defendant presents a risk to the safety of witnesses and others.” (Doc. 20 at 3).[2] Accordingly, the Government proposes to redact personal identifying information relating to its confidential informants and other sources of confidential information, all contained in a limited number of discovery items, which items will be marked “CONFIDENTIAL.” (Id.; Doc. 22 at 1-2). The CONFIDENTIAL items will then be provided to defense counsel, subject to the limitations contained in the protective order-specifically, that CONFIDENTIAL materials and information may only be disclosed to “Designated Persons”;[3] that Defendant may only review CONFIDENTIAL items in the presence of his attorney; and that Defendant is prohibited from maintaining in his possession any CONFIDENTIAL items or any notes on CONFIDENTIAL information. (Doc. 20, Attach. 1).

         Thus, under the proposed protective order, although limited information will be redacted and a small percentage of items cannot be maintained in Defendant's possession or disseminated, Defendant will otherwise have access to all discovery materials. (Id.; Doc. 22 at 2-3). The only exception to Defendant's access relates to a recording of the controlled buys, which recording remains in the custody of the U.S. Attorney's Office, but has previously been shown to defense counsel and continues to be available for review at counsel's convenience. (Doc. 20 at 2-3). Moreover, although the protective order contemplates Defendant will be provided only the transcripts of the recording, the Government states in its reply that the parties “have already discussed the mechanics of having the defendant view the controlled buy videos in this case.” (Doc. 22 at 3).

         Defendant raises three arguments in opposition to the protective order. (Doc. 21). First, Defendant argues that the protective order encroaches upon his “Sixth Amendment right to know his accusers and the nature of the charges against him.” (Id. at 2-3). Second, Defendant argues that the proposed protective order is ill-reasoned, as the Government intends to redact personal identifiers in the CONFIDENTIAL materials and, therefore, Defendant's retention of those materials cannot logically pose any danger to informants or witnesses. (Id. at 3). Third, Defendant asserts that the protective order is impractical and overly-burdensome, as it would require in-person meetings with counsel in order for Defendant to review the discovery. (Id. at 4).

         Here, the Court finds that the Government's proposed protective order serves the significant interest of ensuring the safety of witnesses and confidential informants. Having considered Defendant's history and characteristics, the seriousness of the charged conduct, and the specifics of the Government's ex parte written statement (Doc. 23), this Court concludes that Defendant poses an ...

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