United States District Court, N.D. Ohio, Eastern Division
CHRISTOPHER A. BOYKO, JUDGE
OPINION AND ORDER
CHRISTOPHER A. BOYKO, SENIOR UNITED STATES DISTRICT JUDGE
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.
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
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.
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).
Law & Analysis
Standard of Review
most criminal prosecutions, three governing rules, ” i)
Federal Rule of Criminal Procedure 16; ii) the
Brady 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
Federal Rule of Criminal Procedure 16
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).
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).
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.).
“the discovery afforded by Rule 16 is limited to the
evidence referred to in its express provisions.”
Presser, 844 F.2d at 1285.
The Brady Doctrine
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.
The Jencks Act
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.
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).
Defining the ‘Prosecution Team'
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).
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.
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
for purposes of this Order, the “government” or
“Prosecution Team” includes: HUD-IG, SIGTARP, the
FBI and the IRS-CI.
General Discussion of ...