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United States v. Hofstetter

United States District Court, E.D. Tennessee, Knoxville

August 23, 2019




         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. Defendants Hofstetter, Newman, and Clemons ask [Doc. 534] the Court to compel the Government to permit them reasonable access to inspect the original, physical evidence in this case, pursuant to Federal Rule of Criminal Procedure 16(a)(1)(E). They argue that the restrictions placed on their access to this evidence—that they can view a portion of the evidence at the FBI office and under the supervision of the case agent, the day and time for which must be arranged in advance—unreasonably limit their inspection of the evidence and provide the Government with knowledge of their trial preparations. The Government opposes [Doc. 549] the Defendants having greater access or, at this point, any access to the original evidence in this case. It contends that it has fulfilled its discovery obligations by providing electronic copies of all of the evidence, that defense counsel have had ample time to inspect the physical evidence pursuant to the current protocols, and that it now needs to devote all of its resources to trial preparation.

         The parties appeared before the undersigned on August 20, 2019, for a hearing on this motion. Assistant United States Attorneys Tracy L. Stone and Kelly Kathleen Pearson appeared on behalf of the Government. Attorneys Charles C. Burks, Jr., and Loretta G. Cravens, who appeared by telephone, represented Defendant Hofstetter. Attorneys Christopher J. Oldham and Mark E. Brown represented Defendant Newman. Attorneys Randall E. Reagan and Cullen Michael Wojcik represented Defendant Clemons. The Defendants were not in attendance.[1]

         At the hearing, Mr. Oldham stated that defense counsel have inspected the evidence at the FBI office for three hours at a time on every available date. FBI Agent Mick Nocera, who was present at the hearing, estimated that defense counsel have inspected 60 to 70 boxes of evidence out of approximately 400 to 450 boxes in total to date. Mr. Oldham argued that continued inspection of the original evidence, rather than the electronic copies, is necessary to their defense, because the actual files contain different colors of ink and tabs that are not evident from the copies and because inspection of the actual files allows counsel to understand the organization of the files and how many people have worked on them. He maintained that the protocol required by the FBI is unworkable because counsel lack sufficient time to review the evidence efficiently, the defense runs the risk of revealing trial strategy with the agents observing them and reporting back to Government counsel, and defense counsel cannot speak freely to each other while there.

         Mr. Oldham said the Defendants decline to stipulate to the authenticity and chain of custody of the evidence in order to gain greater access, because some of the evidence is in the wrong order after scanning and counsel cannot know whether the scanner has accurately picked up all of the information on the documents. He said that the Defendants would stipulate to the chain of custody for the transfer of the evidence from the FBI vault to the U.S. Attorney's Office. Mr. Oldham asked the Court at least to order continued access to the evidence.

         Mr. Burks stated that review of the original evidence gives him more information than reviewing the electronic copies. Mr. Burks and Mr. Reagan explained the delay from December 2018 to April 2019, when the request to inspect the evidence was reasserted, was due to counsels' focus on other aspects of this case, such as obtaining experts and litigating pretrial motions. Mr. Burks stated that in June 2019, AUSA Stone provided counsel with an index (“the 1B list”) of the boxes of evidence, and he finally had a way to identify what evidence he wanted to review. Defense counsel were not able to estimate the amount of time needed to complete their inspection of the evidence, although counsel seemed to agree that at this point, approximately forty days out from trial, they would have to prioritize other aspects of trial preparation over inspection.

         AUSA Stone argued that the Government fully complied with Rule 16 and this Court's Order on Discovery and Scheduling by providing electronic copies of all of the discovery. He stated that the Government went beyond what was required in permitting defense counsel to review the original evidence under the FBI protocols. He maintained that this accommodation requires a huge investment of time and resources from the Government, because the case agents must remain with defense counsel while they review the evidence and must spend two hours pulling the requested evidence before the meeting and then logging and returning the evidence to the vault thereafter. AUSA Stone stated that rather than using their time with the original evidence to spot check items about which defense counsel have questions, defense counsel appear to be undertaking a systematic review of the content of the original evidence, which review could be done electronically. AUSA Stone displayed two patient files from a box of evidence from the FBI vault to the Court. He stated that although the actual files contained black, blue, and red ink, each person's handwriting is unique. Thus, he concluded that the fact that different people wrote on the files is apparent from the black and white electronic copies.

         AUSA Stone stated that with trial quickly approaching, he needs the case agents to assist the Government with trial preparations, and they no longer have time to work with defense counsel in their review of the actual evidence. He stated that the case agents have not asked if other FBI agents could monitor the defense counsels' review of evidence, because other agents do not want to do this task, other agents have their own cases to work, and having other agents assist inserts more people into the chain of custody. He stated that because the Defendants have indicated they may raise chain of custody issues in this case, he cannot agree to a limited stipulation to chain of custody for the transfer of the files from the FBI office to the U.S. Attorney's Office. Moreover, even if this transfer was an option earlier in the case, it is no longer an option due to the imminent trial date. He agreed that FBI agents would have to monitor defense counsel, even if they reviewed the evidence at the U.S. Attorney's Office. AUSA Stone asked the Court to find that the Government has fully complied with Rule 16 and to deny any further review.

         Mr. Oldham responded that defense counsel are reviewing the electronic evidence in order to narrow and prioritize which original evidence they need to inspect. He requested an ex parte hearing to explain to the Court why review of the original evidence is necessary to defense strategy. The Government objected, and the Court declined to hold an ex parte hearing. Mr. Oldham asserted that even if the Court denied defense counsels' request to view all of the original evidence, defense counsel need some limited time to inspect the original evidence going forward. He stated that defense counsel had one scheduled inspection session left and that he could likely get by with one or two more sessions. However, Mr. Oldham noted that he was concerned only with the treatment side of the pain clinics, whereas Mr. Burks was concerned with the business side.[2]

         I. ANALYSIS

         With regard to documents and objects that the government must disclose in discovery, Rule 16 of the Federal Rules of Evidence provides, in pertinent part, that

Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the items is within the government's possession, custody, or control and:
(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its case in ...

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