United States District Court, E.D. Tennessee, Greeneville Division
MEMORANDUM OPINION AND ORDER
Clifton L. Corker United States Magistrate Judge.
pretrial motions have been referred to the undersigned
pursuant to 28 U.S.C. 636(b) for disposition or a report and
recommendation regarding disposition by the District Court as
appropriate. Defendant, Matthew Martland, has filed a Motion
to Compel Government to Provide Defendant with Witness and
Exhibit List in Advance of Trial [Doc. 81]. The other
Defendants moved to join in this motion, [Docs. 93-95, 97,
100], and such motions were granted. [Docs. 96, 101]. The
Government filed a response [Doc. 110]; Martland replied
[Doc. 120]. The motion is now ripe for resolution.
Background and Parties' Positions
are former employees of Wellco Enterprises, Inc., a now
defunct manufacturer and supplier of military and rugged
footwear that sold such footwear to the United States and the
public [Docs. 36, 81]. The Superseding Indictment alleges
Defendants conspired to commit and committed wire fraud,
defrauded the United States, and smuggled goods into the
United States by importing military-style boots that were
made in China. It also alleges deceptive marketing and sale
of the boots as “Made in the USA” and compliant
with the Trade Agreements Act of 1979, 19 U.S.C. § 2501
et seq. and the Berry Amendment, 10 U.S.C. §
move the Court to order the government to provide witness and
exhibit lists at least ninety (90) days prior to the April 3,
2018, trial. Defendants contend such lists are necessary to
protect their rights to a fair and speedy trial, effective
assistance of counsel and due process given the complexity of
the case, volume of discovery materials, and potential
witnesses being located across multiple foreign
jurisdictions. Defendants also claim the
“[G]overnment's novel application of the charged
statutes” hinders trial preparation because the
Superseding Indictment relies upon flexible standards used in
domestic preference and labeling laws that limit their
ability to identify what conduct forms the basis of the
Government objects to the motion and asserts that complete
discovery was provided. The Government asserts no
Constitutional basis exists to compel disclosure of witnesses
or exhibits. The Government, relying on a number of cases,
also urges that the Federal Rules of Criminal Procedure do
not provide authority to compel it to disclose evidence not
required by Rule 16. Lastly, the Government notes that the
issues raised by Defendants have been litigated extensively
in this District with relief generally being denied.
a defendant is not entitled to a list of the names …
of the [G]overnment's witnesses.” United States
v. Perkins, 994 F.2d 1184, 1190 (6th Cir. 1993),
cert. denied, 510 U.S. 903 (1993) (citing Fed. R.
Crim. P. 16); see also United States v. Turner, 91
F.App'x 489, 491 (6th Cir.2004) (holding that a
“defendant in a non-capital case . . . is not entitled
to know in advance of trial who will testify for the
government”); United States v. Kendricks, 623
F.2d 1165, 1168 (6th Cir. 1980) (noting “defendants
cannot obtain lists of prosecution witnesses as a matter of
right, although the court has the discretion to order the
prosecution to produce it”).
defendants are not entitled to pretrial disclosure of the
Government's exhibit list. See United States v.
Prince, 618 F.3d 551, 562 (6th Cir. 2010). In fact,
requiring the Government to designate its trial evidence
appears to exceed the discovery requirements in
Fed.R.Crim.Pro. 16(a) and potentially invade Government
counsel's work product. See United States v.
Richards, 659 F.3d 527, 543-44 (6th Cir. 2011),
cert. denied, 132 S.Ct. 2726 (2012) (concluding that
even if discovery is voluminous, the government has no duty
to identify the particular documents that are relevant to
counts of an indictment); United States v. Warshak,
631 F.3d 266, 296-97 (6th Cir. 2010) (rejecting an argument
that the government direct a defendant to exculpatory
evidence within the total discovery provided).
the foregoing in mind, the Court initially observes that
justice (i.e. a fair and speedy trial, effective assistance
of counsel, and due process) does not require the Court to
order production of witness and exhibit lists. Defendants
would undoubtedly be better prepared to defend against the
allegations if armed with more information regarding facts,
witnesses and exhibits the government intends to rely upon.
But, this is neither unique nor distinguishable as the
benefit of added preparation is applicable to virtually any
criminal proceeding and defendant.
Defendants' reference to the voluminous nature of the
discovery and potentially large pool of witnesses from
foreign jurisdictions is unpersuasive. Defendants' motion
makes little effort to explain the full scope of discovery
the Government may draw upon to select witnesses or exhibits
or to identify a single foreign jurisdiction from which any
witness may originate. Until defense counsel referenced
Taiwan, China and Puerto Rico during the pretrial hearing,
these foreign jurisdictions were undefined.
regard to the documentary discovery, Defendants generalize
that “over 100 gigabytes of electronic discovery,
consisting of tens of thousands of documents and emails that
were stored on Wellco's corporate server” was
produced by the government. Whether this description refers
to 20, 000, 100, 000 or some other amount is unspecified. The
general description could just as easily refer to individual
pages as it could to multi-page emails or
documents. Defendants also decline to specify whether
the entire set of discovery materials is truly pertinent to
the matters at issue for trial. In the absence of a defined
scope of materials at issue, the Court declines to find the
scope so voluminous or complex as to suggest a need for
witness and exhibits lists.
the Court assumes the scope of materials produced in
discovery is significant, Sixth Circuit guidance in cases
involving voluminous discovery does not weigh in
Defendants' favor. For example, in Prince, 618
F.3d at 561, the Sixth Circuit affirmed the district
court's decision not to require the United States to
specifically identify the exhibits it planned to use at trial
from the approximately 70, 000 pages of discovery produced.
This District generally declines to require the Government to
provide witness and exhibit lists. See United States v.
Blankenship, No. 3:14-CR-124, 2015 WL 4561458 at *11
(E.D. Tenn. July 29, 2015) (denying motion for specific
designation of the evidence the government intends to use in
its case-in-chief involving 80 gigabytes of data and the
equivalent of 64, 000 hardcopy pages and denying motion for a
witness list); see also United States v. Allen, No.
3:12-CR-90, 2014 WL 3579373 at *4 (E.D. Tenn. July 21, 2014);
United States v. Kincaid, No. 3:10-CR-160, 2013 WL
5488524 (E.D. Tenn. Oct. 2, 2013). This case is
indistinguishable from the situations identified in the cited
same vein, the Court finds United States v. Moss,
No. 02-20165-D/P (W.D. Tenn. June 15, 2005) unpersuasive.
When compared to the general approach in the Sixth Circuit
and this District, Moss appears to be the exception
rather than the rule regarding Government production of
witness and exhibit lists. Moss is also factually
distinguishable. As recognized in Kincaid,
supra, the Moss defendants continued to
litigate discovery issues within three months of the trial in
contrast to this case in which Defendants have possessed
“multiple thousands of pages of document in electronic
format” since the receipt of the ...