United States District Court, E.D. New York
MEMORANDUM AND ORDER
KIYO A. MATSUMOTO, District Judge.
By application dated March 23, 2015, submitted " ex parte and under seal" and served on the government on March 22, 2015, Defendant Michael Garrett ("Mr. Garrett") requests immediate disclosure of jail logs of telephone calls, recordings of telephone calls, and electronic mail for each anticipated cooperating witness who is currently incarcerated. In the alternative, Mr. Garrett requested that the court order the government to provide current jail locations so that Mr. Garrett could serve "forthwith" subpoenas for requested communications of named individuals, or order the government to serve the subpoenas upon the institutions. The government opposes Mr. Garrett's requests. For the reasons stated below, Mr. Garrett's application is denied.
Mr. Garrett first requested the immediate disclosure of email and telephone communications intercepted "in relation to any incarcerated cooperating witness" in his omnibus motions in limine filed on January 20, 2015. (Garrett Mots. in Limine, ECF No. 164, at 5, filed 1/20/15.) The government responded, stating that it does not possess any such materials for its cooperating witnesses. (Gov't Mem. of Law in Resp. to Def. Michael Garrett's Pre-Trial Mots. ("Gov't Resp. to Pre-Trial Mots."), ECF No. 180, at 9, filed 2/13/15.) Thereafter, Ms. Kelley J. Sharkey, counsel for Mr. Garrett, served a February 27, 2015 Discovery Request for the information and discussed the request with AUSA Taryn Merkl on March 16, 2015, who advised that the government was not in possession of, and did not intend to obtain, the requested materials. Ms. Sharkey filed an affirmation dated March 23, 2015 seeking "immediate disclosure of jail calls and logs, and emails for all anticipated incarcerated cooperating witnesses, " with proposed subpoenas as attachments. (Aff. of Kelley Sharkey ("Sharkey Aff."), ECF No. 205, filed 3/22/15.) Specifically, Mr. Garrett requested that "the court order the government to either provide current jail locations" or "serve [Mr. Garrett]'s subpoenas upon these institutions." (Id. at 2.)
The government filed a letter dated March 24, 2015 opposing the requests made in Ms. Sharkey's affirmation, arguing that it was not required to provide the locations of the incarcerated cooperating witnesses it intends to call at trial nor serve the subpoenas upon these institutions. (Letter in Opp. to Def. Garrett's Mot. for Rule 17 Subpoena for Prison Calls ("Gov't Opp."), ECF No. 210, filed 3/25/15.) Mr. Garrett filed a letter dated April 1, 2015 in reply to the government's opposition that also requests the court "to preclude the government from introducing any jail calls, phone records or prison emails which involve either of the defendants or any government or defense witness" if the court declines to compel the government to subpoena the requested communications and logs. (Garrett Reply Letter, filed as "Motion to Quash Opposition" ("Garrett Reply"), ECF No. 227, filed 4/1/15.) On April 4, 2015, the government filed a further response to Mr. Garrett's reply letter. (Letter, filed as "Reply to Response to Motion to Quash Opposition" ("Gov't Reply"), ECF No. 231, filed 4/4/15.)
II. Legal Standard
A. Required Disclosures Under Brady and the Jencks Act
The Supreme Court has recognized that to the extent the government possesses or knows of material evidence, the government has a due process duty "to disclose evidence favorable to an accused when such evidence is material to guilt or punishment." United States v. Coppa, 267 F.3d 132, 135 (2d Cir. 2001) (citing Brady v. Maryland, 373 U.S. 83 (1963)). The government's duty also includes the disclosure of material evidence that "could be used to impeach a key government witness." Id. (citing Giglio v. United States, 405 U.S. 150, 154 (1972)). The government must disclose the material exculpatory and impeachment information "in time for its effective use at trial." Id. at 142.
Although an individual prosecutor has "a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, " such as the police, Kyles v. Whitley, 514 U.S. 419 (1995), the scope of the prosecutor's duty to obtain information from other agencies, such as departments of correction, is dependent on the agency's involvement with "the investigation or trial" of the defendants. United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998) (citing United States v. Locascio, 6 F.3d 924, 949 (2d Cir. 1993), cert. denied, 511 U.S. 1070 (1994)). The Second Circuit has made clear with regard to Brady that "the imposition of an unlimited duty on a prosecutor to inquire of other offices not working with the prosecutor's office on the case in question would inappropriately require... a monolithic view of government, that would condemn the prosecution of criminal cases to a state of paralysis." Avellino, 136 F.3d at 255 (internal quotations and citations omitted).
In addition to the government's Brady disclosures, pursuant to the Jencks Act, "the court shall, on motion of the defendant, order the United States to produce any statement... of the witness in the possession of the United States which relates to the subject matter as to which the witness as testified." 18 U.S.C. § 3500(b). No witness statement or report in the possession of the government shall be "the subject of subpoena, discovery, or inspection" until the witness has testified on direct examination at trial. 18 U.S.C. § 3500(a). The Second Circuit has held that district courts may not order the pretrial disclosure of witness statements pursuant to the terms of the Jencks Act. See generally Coppa, 267 F.3d at 145-146 (finding district court exceeded its authority in ordering pre-trial disclosure of Jencks material because the Jencks Act constrained the court's power to issue any such order).
B. Discovery Pursuant to the Federal Rules of Criminal Procedure
Rule 16 of the Federal Rules of Criminal Procedure governs discovery between the parties in a criminal case. Rule 16(a)(2) expressly does not authorize "the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500." Fed. R. Crim. P. 16(a)(2).
Rule 26.2 of the Federal Rules of Criminal Procedure provides that after a witness testifies on direct examination, a party who did not call the witness may compel production of any statement of the witness that is in the possession of the party calling the witness that "relates to the subject matter of the witness's testimony." Fed. R. Crim. P. 26.2(a).
Rule 17 of the Federal Rules of Criminal Procedure governs the procedure for subpoenas of non-party witnesses, documents and objects in criminal cases. "Rule 17 subpoenas are properly used to obtain admissible evidence, not as a substitute for discovery." United States v. Barnes, 560 F.Appx. 36, 39-40 (2d Cir. 2014) cert. denied, 134 S.Ct. 2715 (-) (citations omitted). Rule 17(h) provides that "[n]o party may subpoena a statement of a witness or of a prospective witness under this rule. Rule 26.2 governs the production of the statement." The party requesting the Rule 17 subpoena must "make a preponderance showing that the materials requested are relevant, ...