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United States v. Tyson

United States District Court, N.D. Ohio, Eastern Division

January 16, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
KENNETH TYSON, Defendant.

          CHRISTOPHER A. BOYKO, JUDGE

          OPINION AND ORDER

          CHRISTOPHER A. BOYKO, SENIOR UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Kenneth Tyson's Motion to Compel Production of certain documents under Federal Rule of Civil Procedure 16. (Doc. 60). For the following reasons, Defendant's Motion is GRANTED, in part.

         I. Background

         On November 21, 2018, the Grand Jury indicted Defendant with one count of Conspiracy to Commit Bribery and Honest Services Fraud, in violation of 18 U.S.C. § 371; three counts of Honest Services Wire Fraud, in violation of 18 U.S.C. §§ 1343, 1346 and 2; and one count of Bribery in Federally Funded Programs, in violation of 18 U.S.C. § 666(a)(1)(B). (Doc. 1). Defendant pleaded not guilty to all counts.

         Discovery commenced pursuant to a Protective Order. (See Doc. 21). According to Defendant, the discovery process has been slow, drawn out and frustrating. According to the Government, it has produced a large swath of materials and complied with its legal obligations. Moreover, the Government believes Defendant is not yet entitled to certain materials.

         This disagreement prompted Defendant to file a Motion to Compel additional evidence on October 23, 2019. (Doc. 60). The Government responded on October 31, 2019 requesting the Court deny Defendant's Motion in its entirety. (Doc. 64). Defendant filed a Reply in support of his Motion on November 6, 2019. (Doc. 68).

         II. Law & Analysis

         A. Standard of Review

         “In most criminal prosecutions, three governing rules, ” i) Federal Rule of Criminal Procedure 16; ii) the Brady[1] doctrine; and iii) the Jencks Act, 18 U.S.C. § 3500, “‘exhaust the universe of discovery to which the defendant is entitled.'” United States v. Watson, 787 F.Supp.2d 667, 672 (E.D. Mich. 2011) (quoting United States v. Presser, 844 F.2d 1275, 1285 n.12 (6th Cir. 1988)). Thus, the scope of criminal discovery is limited as compared to civil discovery. See Degen v. United States, 517 U.S. 820, 825-26 (1996).

         i. Federal Rule of Criminal Procedure 16

         Federal Rule of Criminal Procedure 16 “is the primary means of discovery in criminal cases.” United States v. Llanez-Garcia, 735 F.3d 483, 493 (6th Cir. 2013). “Upon request, Rule 16 requires the government to ‘permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items.'” Id. (quoting Fed. R. Crim. P. 16(a)(1)(E)). This obligation however, “does not arise unless ‘the item is within the government's possession, custody, or control and: i) the item is material to preparing the defense; ii) the government intends to use the item in its case-in-chief at trial; or iii) the item was obtained from or belongs to the defendant.'” Id. (quoting Fed. R. Crim. P. 16(a)(1)(E)) (emphasis in original).

         In order to be ‘within the government's possession, custody, or control,' the material must either be “in the actual possession of the prosecutor or if the prosecutor has knowledge of and access to the material while it is in the possession of another federal agency.” United States v. Skaggs, 327 F.R.D. 165, 174 (S.D. Ohio 2018). “The prosecution is deemed to have knowledge of and access to the material that is in the possession of any federal agency that participated in the investigation that led to defendant's indictment, or that has otherwise cooperated with the prosecution.” Id. Importantly however, Rule 16 “does not contain a due diligence requirement for the [g]overnment to affirmatively inquire of all federal, state and local law enforcement agencies” for discoverable evidence. United States v. Mills, 2019 WL 3423318, at *3 (E.D. Mich. July 30, 2019).

         As discussed, Rule 16 authorizes discovery of documents that are material to the preparation of the defense. Fed. R. Crim. P. 16(a)(1)(E)(i). “Materiality under Rule 16 has not been authoritatively defined in the Sixth Circuit.” United States v. Lykins, 428 Fed.Appx. 621, 624 (6th Cir. July 6, 2011). However, when reviewing for materiality, courts “consider the logical relationship between the information withheld and the issues in the case, as well as the importance of the information in light of the evidence as a whole.” Id. ‘Defense' in this context means “the defendant's response to the [g]overnment's case in chief.” Id. (quoting United States v. Armstrong, 517 U.S. 456, 462 (1996)). Finally, the defendant bears the burden in establishing materiality. United States v. Phillip, 948 F.2d 241, 250 (6th Cir. 1991). General descriptions or conclusory allegations of materiality will not suffice. Id.; see also United States v. Popa, 369 F.Supp.3d 833, 837 (N.D. Ohio 2019) (Pearson, J.).

         Lastly, “the discovery afforded by Rule 16 is limited to the evidence referred to in its express provisions.” Presser, 844 F.2d at 1285.

         ii. The Brady Doctrine

         “[T]he obligation the Brady rule imposes on the government is…‘to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment.'” Presser, 844 F.2d at 1281 (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987)). That obligation was extended to evidence which may undermine the credibility of a given witness in Giglio v. United States. See 405 U.S. 150, 154-55 (1972). However, neither Brady nor Giglio created a general right to pre-trial discovery in a criminal proceeding. Presser, 844 F.2d at 1283. All that Brady and Giglio require is disclosure in time for “effective use” at trial. Id.

         iii. The Jencks Act

         “The Jencks Act ‘generally requires the government, on motion of a defendant, to produce statements in its possession of witnesses who testify at a trial.'” Watson, 787 F.Supp.2d at 672 (quoting United States v. Short, 671 F.2d 178, 185 (6th Cir. 1982)). The Act “prohibits a court from ordering disclosure of Jencks material before the witness has testified in direct examination.” Id. at 673 (citing 18 U.S.C. § 3500(a)).

         “If impeachment evidence is within the ambit of the Jencks Act, then the express provisions of the Jencks Act control discovery of that kind of evidence.” Presser, 844 F.2d at 1283. The Sixth Circuit has been consistent-“the intent of Congress expressed in the Act must be adhered to and, thus, the government may not be compelled to disclose Jencks Act material before trial.” Id. (citing additional authority).

         B. Defining the ‘Prosecution Team'

         A threshold issue applicable to many of Defendant's arguments is whether the information requested is ‘within the government's possession, custody, or control.' The Government refers to this as the ‘prosecution team.' While it does not elaborate on that term, it seems to imply that civil investigators of the SIGTARP investigation team are not part of the prosecution team. (Doc. 64, PageID: 575-76).

         Defendant argues the prosecution team is broader than the Government claims. At a minimum, Defendant believes the Department of Housing and Urban Development's Office of Inspector General (“HUD-IG”); the Office of Special Inspector General for the Troubled Asset Relief Program (“SIGTARP”); the Federal Bureau of Investigation (“FBI”); and the Internal Revenue Service-Criminal Investigations (“IRS-CI”) make up the prosecution team.

         The Court agrees with Defendant. For purposes of criminal discovery, the prosecution team includes “any federal agenc[ies] that participated in the investigation that led to defendant's indictment.” Skagg, 327 F.R.D. at 174 (emphasis added). The Government's Press Release at the beginning of this case states the following: “This case was investigated by the Department of Housing and Urban Development's Office of Inspector General, The Office of the Special Inspector General for the Troubled Asset Relief Program, the Federal Bureau of Investigation and…the Internal Revenue Service-Criminal Investigations.” (emphasis added).[2]

         Therefore, for purposes of this Order, the “government” or “Prosecution Team” includes: HUD-IG, SIGTARP, the FBI and the IRS-CI.

         C. General Discussion of ...


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