United States District Court, D. Nevada
HOFFMAN, JR., UNITED STATES MAGISTRATE JUDGE.
matter is before the court on the government's Motion for
a Protective Order Under Federal Rule of Criminal Procedure
16(d)(1) and to Submit a Document Under Seal Ex Parte (ECF
No. 1530), filed February 28, 2019, Ernesto Gonzalez's
response (ECF No. 1538), filed March 14, 2019, and the
government's reply (ECF No. 1545), filed March 21, 2019.
government moves for a protective order and to submit a
sealed ex parte document to delay the disclosure of certain
material because of witness security issues. (Mot. for
Protective Order (ECF No. 1530.) The superseding indictment
alleges that a charged co-defendant engaged in certain acts
with and made oral and written statements to a third party.
(Superseding Indictment (ECF No. 13).) Additionally,
cooperating witnesses took various photographs of Vagos
members and one cooperating witness identified one or more
Vagos members in a photo spread. (Id. at 16.)
the government seeks to protect statements by the
co-defendant which the government will introduce against all
defendants. The government argues that this evidence must be
disclosed to the declarant co-defendant under Rule 16 of the
Federal Rules of Criminal Procedure, but as to all other
defendants only under the Jencks Act. The discovery deadline
for Rule 16 material for Group 1 is March 1, 2019, but the
Rule 16 deadline for Group 2 is not until November 7, 2019,
and April 2, 2020 for Group 3. The declarant co-defendant is
not in Group 1. The Jencks Act deadline for the Group 1 trial
is July 19, 2019, 10 days before the July 28, 2019 trial
date. The government seeks a protective order delaying
discovery of this information to the Jencks deadline out of
an abundance of caution and due to witness safety concerns.
the government seeks to protect photographs of Vagos members
taken by cooperating witnesses and lineup arrays of Vagos
members shown to a cooperating witness, due to witness safety
concerns as well.
responds that a protective order already exists in this case,
and so it is unnecessary, and already contemplates earlier
disclosure of Rule 16 material. He also argues that there is
no basis to delay the production of photographs under Rule
16(a)(1)(E) regarding the production of photographs, and the
allegations in the indictment are not evidence sufficient to
establish a threat to witnesses. Finally, he argues that
co-conspirators statements are not Jencks Act materials but
are instead statements made in furtherance of an alleged
conspiracy under Rule 801(d)(2)(E), and therefore should be
disclosed in a timely fashion to allow the defense
preparation. He also argues that the court has already
decided that objections to other Rule 801 statements by Group
1 defendants should be made by June 20, 2019.
government replies that regardless of whether the materials
fall under Rule 16 or Jencks Act, delayed production is
necessary under Rule 16(d) based upon the need for witness
protection, and the existing protective order is
Rule of Criminal Procedure 16 requires the government, upon
defense request, to disclose “any relevant written or
recorded statement by the defendant” if the statement
is within the government's possession, custody, or
control and the government knows, or could reasonably learn,
that the statement exists. Fed. R. Crim. P. 16(a)(1)(B)(i).
Additionally, upon a defendant's request, the government
must make available for inspection and copying any documents
or photographs that the Government intends to offer in its
case-in-chief at trial. Fed. R. Crim. P. 16(a)(1)(E). Rule
16(d)(1) provides that a “court may, for good cause,
deny, restrict, or defer discovery or inspection, ” of
certain material. In deciding whether to invoke such a
protective order, the court may require the requesting party
to submit ex parte a written statement showing good cause.
Fed. R. Crim. P. 16(d)(1).
26.2, which comports with the Jencks Act, requires disclosure
of prior statements made by a witness after that witness has
testified on direct examination. See generally Fed.
R. Crim. P. 26.2.
written and oral statements of a co-defendant that were made
to a third party constitute Rule 16 material only as to the
declarant, and as Jencks and Rule 26.2 statements as to all
other defendants. The statements therefore may be properly
released to Group 1 defendants as Jencks Act materials on
July 19, 2019.