UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,
v.  Criminal Case No. 11-102 (GK)
CHARLES DAUM, et al., :
Defendants.
MEMORANDUM OPINION

Defendants have filed a Motion to Compel Production of Brady/Giglio/Bagley ("hereafter
"Brady/Giglz'o") and Jencks Act Materials [Dkt. No. 60]. Upon consideration of the Motion, the
Opposition, the Reply, and the applicable case law, the Court concludes that the Motion should be
granted in part and denied in part for the following reasons.

As all parties know, the three Defendants have been charged with conspiracy to influence or
injure an officer or juror; Defendant Daum, alone, has been charged with influencing or injuring an
officer or juror, tampering with a witness and subordination of perjury. Defendants request in the
present Motion that the Government be required to disclose all exculpatory information and
impeachment materials 60 days before trial, and all jencks Act materials pursuant to 18 U.S.C.
§ 3500, three weeks before trial. The Govemment strongly opposes the Motion and takes the
position that Defendants should not be given such materials any earlier than three days before trial.

The charges against the Defendants are extremely serious. Because these charges have been
filed against an experienced criminal defense lawyer and his investigators, the case has already
received substantial attention in the press. Given this context, it cannot be maintained, as the
Govemment suggests, that this is a simple or straightforward case in which Defendants deserve no

more than the traditional period of time allowed in this District Court for the disclosure of

 

Brady/Giglz'o materials and Jencks Act statements. Gov.’s Opp’n at 2, 4. However, it is true that
the Govemment has already tumed over a substantial amount of information to the Defendants
including documents, photographs, and more than l,3 00 recorded jail calls made by Delante White
when incarcerated in the original case, Criminal No. 08-065, before Judge Paul L. Friedman.
Moreover this Court has unsealed all the proceedings in that earlier case, thereby giving Defendants
access to plea agreements, statements of facts, and transcripts of all the proceedings. Thus, it is
virtually certain that Defendants already have access to a substantial amount of the Jencks Act and
Giglz`o materials that they now seek.

Defendants have made clear in their Motion that they want "the government [compelled] to
produce all exculpatory information and impeachment materials, including any and all inconsistent
statements that have been made by the four principal cooperating witnesses in this case about the
subject matter of this prosecution." Defs.’ Mot. at l.

The Government argues that the Defendants’ right to a fair trial does not require early
disclosure of impeachment materials pursuant to Giglz'o. Gov.’s Opp’n at 3. The case law is quite
to the contrary The Supreme Court has clearly ruled that impeachment material is included in the
Govemment’s Brady obligations. United States v. Bagley, 473 U.S. 667, 676-77 (1985); Giglio v.
United States, 405 U.S. 150, 154 (1972); Brady v. Mag;land, 373 U.S. 83, 87 (1963). Moreover,
such material must be disclosed "at such time as to allow the defense to use the material effectively
in the preparation and presentation of its case, even if satisfaction of Giglio requires pre-trial

disclosure." United States v. Pollack, 534 F.2d 964, 973 (D.C. Cir. 1976), accord, United States v.

Celis, 608 F.3d 818, 835 (D.C. Cir. 2010). Finally, there can be no dispute at this point that Braa'y

obligations cover both exculpatory and impeachment evidence.

_2_

 

It has long been established that Federal Rule of Criminal Procedure 16 was "designed to
provide to a criminal defendant, in the interests of fairness, the widest possible opportunity to inspect
and receive such materials in the possession of the government as may aid him in presenting his side

of the case." United States v. Poindexter, 727 F. Supp. 1470, 1473 (D.D.C. 1989). Importantly, our

Court of Appeals has cautioned that the Govemment should be erring on the side of disclosure when
interpreting its Brady/Gz'glio obligations. §_e§ United States v. Moore, 651 F.3d 30, 99 (D.C. Cir.
2011) ("The Supreme Court has instructed that ‘the prudent prosecutor’ will resolve doubtful
questions in favor of disclosure." (quoting United States v. Agurs, 427 U.S. 97, 108 (1976))); United
States v. Karake, 281 F. Supp. 2d 302, 306 (D.D.C. 2003).

The Govemment seems to be suggesting in its Opposition that because the jencks Act
precludes disclosure of witness statements until after the witness has testified, there is no obligation
under Brady/Giglz`o to tum over any and all inconsistent statements made by the cooperating
witnesses in this case until three days before trial. However, Brady/Gz'glio obligations always trump
both the Jencks Act and any limiting language in Rule 16. §e_g United States v. Tarantino, 846 F.2d
1384, 1414 n.11 (D.C. Cir. 1988); United States v. Safavian, 233 F.R.D. 12, 16 (D.D.C. 2005);
Poindexter, 737 F. Supp. at 1485 ("The Brady obligations are not modified merely because they
happen to arise in the context of witness statements.").

As ChiefJudge Sentelle explained in United States v. Marshall 132 F.3d 63, 67 (D.C. Cir.
1998), not only does Rule 16 not immunize inculpatory evidence from disclosure, but such evidence
"is just as likely to assist in ‘the preparation of the defendant’s defense’ as exculpatory evidence. ln
other words, it is just as important to the preparation of a defense to know its potential pitfalls as it

is to know its strengths."

 

Thus, in a case such as this where, as Defendants correctly argue, the success of the
Government’ s case will undoubtedly turn on the jury’ s assessment of the credibility of its four maj or
witnesses, it is particularly important that the Defendants be given access to any inconsistent
statements of those witnesses which constitute potential impeachment.

For all these reasons, the Court concludes that Defendants are entitled to production of all
Brady/Giglio materials, even if that material includes statements which are also covered by the
jencks Act. While the Court concludes that Defendants are entitled to the materials they seek, the
Court does not agree that they are entitled to receive these materials as far ahead of trial as they
requested in their Motion.l As the parties know, the trial judge has great discretion in setting
deadlines such as these, and usually balances any potential dangers of early discovery against the
Defendant’s ability to use the materials effectively. In this case, the Court concludes that the
interests of both the Defendants, as well as the Govemment,z will be served by requiring the

Govemment to disclose all Brady/Giglz'o information by April 20, 2012 (10 days in advance of trial),

1 The periods of time requested by the Defendants have now been mooted by the

passage of time since the filing of the Motion, as well as the extensions of time granted to the parties
to complete briefing on the many pending Motions.

2 The Government alludes to concems about "witness security, obstruction of justice,

and the defendants’ willingness to interfere with the judicial process" that the Court should consider.

However, no concrete representations have been made to justify these concems. There has been
nothing to suggest that disclosure of any of these materials would jeopardize the safety of the four
cooperating Govemment witnesses, especially since their identification has been known for an
extended period of time.

_4_

 

and by requiring the Govemment to disclose jencks Act statements by April 25, 2012 (five days in

advance of trial).

march 8, 2012    

Gladys Kessler ¢/)
United States District Judge

Copies via ECF to all counsel of record

