United States District Court, S.D. Ohio, Western Division
ORDER GRANTING MOTION FOR PROTECTIVE ORDER
TIMOTHY S. BLACK UNITED STATES DISTRICT JUDGE
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).
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).
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.)
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
STANDARD OF REVIEW
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,
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).
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). 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”; 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).
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).
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).
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