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United States v. Myers

May 15, 2007


The opinion of the court was delivered by: H. Bruce Guyton United States Magistrate Judge

(Jarvis / Guyton)


All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for disposition or report and recommendation regarding disposition by the district court as may be appropriate. The following motions are pending and subject to disposition by this Court:

(1) Motion For Early Disclosure of Jencks Material [Doc. 37];

(2) Motion to Revise / Amend Order Entered December 29, 2006 [Doc. 38];

(3) Motion For Hearing to Determine the Existence of Alleged Conspiracy [Doc. 40] with Memorandum in Support [Doc. 41];

(4) Motion For Leave to File Memorandum in Support of Bill of Particulars [Doc. 46]; and

(5) Motion For Bill of Particulars [Doc. 42].

All pending pretrial motions are addressed herein, a hearing being unnecessary to their disposition.

1. Motion For Early Disclosure of Jencks Material

Defendant Myers moves the Court to enter an order requiring the government to submit Jencks Act materials to the defendant at least ten days prior the commencement of trial. [Doc. 37]. The Jencks Act provides in pertinent part as follows:

In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a government witness or prospective government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.

18 U.S.C. § 3500(a); see also Fed. R. Crim. P. 26.2.

In his motion, Mr. Myers accurately characterizes, "the purpose of the Jencks Act is to prevent a general exploratory 'blind fishing expedition' into government files by the defense." [Doc. 37 at ¶5] citing United States v. Pope, 574 F.2d 320 (6th Cir. 1978); and United States v. Nickell, 552 F.2d 684 (6th Cir. 1977). Recognizing this, Mr. Myers distinguishes his own situation, describing that he "is not requesting to conduct a general exploratory search into government files. Rather, Mr. Myers is requesting the disclosure of specific statements of specific witnesses that would allow Mr. Myers to know what he is defending himself against." [Doc. 37 at ¶ 6].

The government responds that it intends to provide Jencks material before the trial of this matter, but objects to being ordered to do so. The government cites United States v. Algie, 667 F.2d 569, 571 (6th Cir. 1982); and Palermo v. United States, 360 U.S. 343, 351 (1959) in support of its position.

In Palermo, the Supreme Court addressed the parameters and legislative intent of the then-new Jencks Act. In language relevant to Mr. Myers' request, the Court observed that:

Subsection (a) requires that no statement of a government witness made to an agent of the Government and in the Government's possession shall be turned over to the defense until the witness has testified on direct examination. This section manifests the general statutory aim to restrict the use of such statements to impeachment.

Palermo, 360 U.S. at 349 (1959).

In support of his request, Mr. Myers draws the Court's attention to the fact that the Sixth Circuit favors the practice of disclosing Jencks material well before trial. This Court has reflected that preference in the Order on Discovery and Scheduling at paragraph O [Doc. 20]. The Court takes this opportunity to again strongly encourage the government to reveal Jencks Act materials to defense counsel as soon as possible and well before the testimony of government witnesses in order to avoid undue interruptions of this trial. Should the government, however, elect to withhold these statements until after the witness has testified, meeting the bare minimum disclosure requirement of the Jencks Act and Rule 26.2, it is within its right to do so.*fn1

As described by the Sixth Circuit, "the Jenks Act generally requires the government, on motion of a defendant, to produce statements in its possession of witnesses who testify at a trial. The defendant is only entitled to the statement after the witness has testified. " United States v. Short, 671 F.2d 178, 185 (6th Cir. 1982) (emphasis added). The Court is cognizant that the statements sought by Mr. Myers are likely material to the optimal and thorough preparation of his defense and that early disclosure would result in the most orderly conduct of a trial for which both parties are best prepared. Nonetheless, under the circumstances presented by this case, there is no provision in either the Jencks Act at 18 U.S.C. ยง 3500 or Federal Rule of Criminal Procedure 26.2 requiring the government to produce statements by government witnesses until after the witness has testified at trial. Nothing in the Jencks Act provides a basis for the Court to order early disclosure here. United States v. Algie, 667 F.2d 569 (6th Cir. 1982). Mr. Myers is not ...

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