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UNITED STATES v. FRANK

May 26, 1998

UNITED STATES OF AMERICA, Plaintiff,
v.
DERIC FRANK, Defendant.



The opinion of the court was delivered by: COTE

OPINION

 DENISE COTE, District Judge:

 Defendant Deric Frank moved to compel production by May 1, 1998, of certain discovery materials in this death penalty prosecution. The selection of the jury who will try this case is scheduled to begin on June 4, 1998, with the submission of a written questionnaire to members of the venire; the presentation of evidence is scheduled to begin on June 15. At conferences with the parties on March 12 and April 29, 1998, the Court ruled on the defendant's motion, essentially denying it. This Opinion explains the basis for the Court's ruling.

 More specifically, in a January 8, 1998 letter, the Government set forth its position regarding the schedule for production of certain discovery materials. By that time, the Government already had provided what it describes as "voluminous" amounts of material in response to prior defense requests. Frank accepted some of the Government's proposals for the production of additional information but, as described below, moved for the Court to advance the disclosure of other materials. This Opinion will address in turn Frank's requests for specific types of materials.

 Finally, in a May 4, 1998 letter and at a May 7, 1998 conference, Frank accused the Government of violating its obligations under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). In a letter of May 14, 1998, Frank elaborated on his view of the Government's Brady obligations in a death penalty prosecution. The Government responded with a letter of May 17 and two letters of May 20, one addressed to the Court and one addressed to Frank's counsel. This Opinion will explain the basis for the Court's finding that there has been no Brady violation by the Government.

 A. Production of Witness List; Brady, Giglio, and Jencks Material

 The Government and defense counsel agreed that the Government would produce by May 1, 1998, with one exception, a list of its witnesses for both the liability and penalty phases, as well as the materials related to these witnesses' testimony, that is, the impeachment material that it must produce pursuant to Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972) ("Giglio material"), and the prior statements of witnesses that it must produce pursuant to 18 U.S.C. § 3500 ("3500 material"). *fn1" The one exception involves the information with respect to witnesses for whom the Government has safety concerns, which the Government proposed to produce on June 3, 1998, *fn2" unless it made a motion beforehand to delay production further. The parties are in agreement about the Government's obligation to produce without delay any exculpatory information, pursuant to Brady, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 ("Brady material"). The Government had indicated, however, that it is unaware of any such information regarding Frank. The Court has ordered the Government to provide Frank with all exculpatory information of which it does become aware promptly after learning of it. Pursuant to Brady, and because he will have an opportunity to submit to the jury information in mitigation of the imposition of the death penalty should he be found guilty of the capital crime of kidnapping in which death results, Frank also has requested disclosure of any statements regarding his character that could be interpreted as favorable to him. The Government agreed on March 12 to disclose such statements, and did so through a letter of March 16.

 Frank subsequently moved to compel the Government to disclose by May 1 its complete list of witnesses as well as all of the 3500 material and Giglio material. To assuage the Government's concerns regarding the safety of certain witnesses, defense counsel proposed that the identity of those witnesses, along with their 3500 material and Giglio material, be disclosed to defense counsel alone; and counsel have further represented that this information would be shared with neither the defendant nor his family until June 3 or until they have obtained permission from the Court to remove any restrictions on the use of the material, whichever date comes first. Defense counsel anticipates that an application to remove restrictions most likely would be made when counsel can represent to the Court that they have independently learned the identity of a Government witness.

 With respect to the provision of a complete witness list, Title 18 of the United States Code, Section 3432 ("Section 3432") states in pertinent part that a defendant in a capital case must be furnished "three entire days before commencement of trial" with a list of the witnesses at trial "stating the place of abode of each . . . witness," unless" the court finds by a preponderance of the evidence that providing the list may jeopardize the life or safety of any person." 18 U.S.C. § 3432 (1997). Thus, with respect to those witnesses for whom the Government establishes a basis for concern regarding their safety, the statute allows for disclosure of their identity even later than three days before trial.

 As a general matter, a defendant has no constitutional right to receive either Brady or Giglio material prior to trial. United States ex rel. Lucas v. Regan, 503 F.2d 1, 3 n.1 (2d Cir. 1974). As the Supreme Court observed in Weatherford v. Bursey, 429 U.S. 545, 51 L. Ed. 2d 30, 97 S. Ct. 837 (1977), "there is no general constitutional right to discovery in a criminal case and Brady did not create one . . . ." Id. at 559. See also Kyles v. Whitley, 514 U.S. 419, 437, 131 L. Ed. 2d 490, 115 S. Ct. 1555 (1995); United States v. Percevault, 490 F.2d 126, 131-32 (2d Cir. 1974) (holding that court has no power to compel disclosure of 3500 material prior to time mandated by statute). Exculpatory material must be disclosed, however, in sufficient time to permit a defendant to make effective use of it at trial, thus potentially necessitating pre-trial disclosure, depending on the nature of the material. See, e.g., Grant v. Alldredge, 498 F.2d 376, 382, 383 n.7 (2d Cir. 1974). As noted, the Court has ordered that Brady material be disclosed promptly after it comes to the Government's attention, inasmuch as the defendant may need to undertake an investigation to develop and present effectively the exculpatory information. Giglio material falls under the umbrella of the Brady rule because impeachment material directly affects the credibility of a witness and the "reliability of a given witness may well be determinative of guilt or innocence." Giglio, 405 U.S. at 154 (internal quotation omitted). The issue of when Giglio material should be disclosed, however, must be analyzed separately. Provided that the defendant has sufficient time after receipt of Giglio material to use it effectively at trial, there is no violation of the defendant's rights from deferring production of this material until closer to the time of the witnesses' testimony. Thus, while the requirements of due process underlie both the Brady doctrine and its offspring, including Giglio, the very nature of Giglio material dictates a different timetable for its effective use.

 As a consequence, in cases not involving the death penalty, courts have approved disclosure of Giglio material on the day that a witness testifies. See, e.g., United States v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983); United States v. Aguirre-Parra, 763 F. Supp. 1208, 1216 (S.D.N.Y. 1991) (to be produced with 3500 material); United States v. Ruiz, 702 F. Supp. 1066, 1069-70 (S.D.N.Y. 1989), aff'd, 894 F.2d 501 (2d Cir. 1990) (approving Government agreement to provide impeachment material along with 3500 material on day before witness testifies); United States v. Biaggi, 675 F. Supp. 790, 811-12 (S.D.N.Y. 1987) (same, although noting that the Government had already begun disclosure of prior bad acts of several key witnesses). In a death penalty prosecution, one court has ruled that production of Giglio material three business days before jury selection gave the defendant "ample" opportunity to prepare for cross examination. United States v. Beckford, 962 F. Supp. 780, 788 (E.D. Va. 1997). That holding follows the structure of Section 3432, which does not require the Government to produce a list of its witnesses until three days before trial. See also United States v. Storey 956 F. Supp. 934, 938-39 (D. Kan. 1997) (3500 material provided seven days before trial); United States v. Walker, 910 F. Supp. 837, 860 (N.D.N.Y. 1995) (reserving on whether disclosure of witness list could be delayed until trial began, but denying defendant's motion for list earlier than required by Section 3432); United States v. Nguyen, 928 F. Supp. 1525, 1551 (D. Kan. 1996) (denying defendant's motion for disclosure of witness list earlier than required by Section 3432). But see United States v. McVeigh, 923 F. Supp. 1310, 1315 (D. Col. 1996) (ruling, after finding that Giglio material was required to be disclosed on same schedule as other Brady material, that all exculpatory or impeaching witness statements be immediately produced). *fn3"

 Pursuant to the agreement of the parties, the Government has made an ex parte submission in a letter of April 13 to support its contention that disclosure of the identity of six witnesses will create a risk for their safety. The April 13 letter describes the defendant's co-conspirators, all of whom are at large, and its basis for believing that the co-conspirators present a serious risk of danger to the six witnesses. I find that there is a reasonable basis to believe that disclosure of the identity of these witnesses will present a serious risk to their safety and to the integrity of the trial process. As a consequence, I have not required that the Government identify these six witnesses or produce their Giglio or 3500 material on May 1. I will require, however, that the identity of these witnesses and their Giglio and 3500 material be produced on May 29, 1998, four business days before the venire will arrive to fill out their written questionnaires and over two weeks before the presentation of evidence begins. Disclosure on May 29 will comply with the disclosure requirements of Section 3432 and will provide the defendant with more than sufficient time to prepare to examine these witnesses at trial. Should the Government seek a delay in production of such material beyond May 29, it must make a separate written application to the Court. *fn4"

 Although the Court has every confidence in defense counsel and the reliability of their representations to the Court, counsel's proposal for earlier disclosure of this information is fraught with risk and will be difficult to administer. Defense counsel will not be able to undertake any investigation of the witnesses without placing those witnesses at risk. Given all of these circumstances, and balancing Frank's need for the material, the nature of the testimony to be given by these witnesses, the role of this testimony in light of the nature of the Government's evidence as a whole, *fn5" and ...


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