United States v. Williams ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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UNITED STATES )
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v. ) Criminal Action No. 10-51 (RMC)
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MARK PRAY, et al., )
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Defendants. )
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MEMORANDUM OPINION
Mark Pray (1), Kenneth Benbow (2), Randolph Danson (3), Alonzo Marlow (4),
Robert McMillan (6), Timothy Moon (7), Charles Wade (10), Herman Williams (12), and Larry
Williams (13) (collectively “Defendants”) seek production of the periodic reports written by the
prosecutors and provided to Judge Ricardo Urbina, who presided over the Title III wiretaps obtained
by the U.S. Attorney’s Office for the investigation of this case. Periodic reports assist a wiretap-
authorizing court in determining what progress has been made in a criminal investigation and the
need for continued interception. U.S. v. Orozco, 108 F.R.D. 313, 315 (S.D. Cal. 1986). Such
reports contain the prosecutors’ summaries of telephone conversations, theories of the case, and
additional investigative leads.
The Court held a hearing on this matter on August 6, 2010. Defendants allege
generally that they intend to challenge the necessity of the wiretaps and their various extensions and
whether the prosecutors/agents used proper procedures. They also intend to challenge probable
cause for the wiretaps, the “presence of misleading or redundant statements, minimization,1 the use
of other investigative techniques, and any investigate [sic] gaps in the wiretaps.” Pray’s Mot. to Join
Mot. to Compel (“Pray’s Mot.”) [Dkt. # 32] at 1-2. Defendants contend that prosecutors have
provided periodic wiretap reports to defendants in other jurisdictions and thus that the prosecutors
in this case should do the same. See, e.g., U.S. v. Bennett, 219 F.3d 1117, 1123 (9th Cir. 2000)
(disclosure of periodic reports was not at issue, but court noted that the government already had
disclosed such reports to defendant); U.S. v. Vastola, 670 F. Supp. 1244, 1283-84 (D.N.J. 1987)
(defendant’s request for periodic report was moot because the government already had disclosed it).2
It is not relevant whether U.S. Attorney’s Offices elsewhere provide the periodic
wiretap reports to criminal defendants. The issue is whether the Government is required to divulge
such reports to Defendants. Federal Rule of Criminal Procedure 16(a)(1)(E) requires the
Government to provide evidence that is “material” in preparing a defense. Evidence is material if
“there is a strong indication that it will play an important role in uncovering admissible evidence,
aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.” U.S. v.
Libby, 429 F. Supp. 2d 1, 7 (D.D.C. 2006).
The periodic wiretap reports in this case do not constitute material evidence. First,
the reports are not required under the wiretap statute, 18 U.S.C. § 2518. See Orozco, 108 F.R.D. at
1
Pursuant to the wiretap statute, Title III of the Omnibus Control and Safe Streets Act of
1968, 18 U.S.C. §§ 2510-2520, the government is required to minimize the interception of
communications unrelated to the illegal activity specified in the wiretap application. 18 U.S.C.
§ 2518(5). That is, the Government is required to make reasonable efforts to avoid monitoring
non-pertinent calls. See U.S. v. Wright , 121 F. Supp. 2d 1344, 1348-49 (D. Kan. 2000).
2
Counsel for Mark Pray represents to the Court that the U.S. Attorney’s Office in the
District of Maryland normally produces the periodic reports to defense counsel. Pray’s Mot. at 2.
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315. A Court presiding over a wiretap can, in its discretion, require periodic reports under § 2518(6).
Because the wiretap statute does not require reports, the reports are not related to compliance with
the statute.
Second, the reports are summaries of evidence and not the evidence itself. “Prepared
as a summary of information to assist the court in judging compliance with its authorization order,
progress reports do not provide a defendant with any original information beyond what can be found
in the tapes, transcripts, and monitor log sheets.” U.S. v. Wright, 121 F. Supp. 2d 1344, 1350 (D.
Kan. 2000). Periodic wiretap reports are “the prosecutor’s summary of the relevant line sheets
which, in turn, are a periodic summary of the monitor log sheets.” Id. Where defendants have been
given access to the tapes of the phone calls, the wiretap application, and the orders relating to the
wiretap application, access to the periodic reports is not necessary. Id.; accord U.S. v. Marchman,
399 F. Supp. 585, 586 (E.D. Tenn. 1975). Tapes, line sheets, and call logs are the best sources of
information regarding statutory compliance and minimization. Wright, 121 F. Supp. 2d at 1350.
Here, the Government has produced to Defendants the evidence itself — including the tapes of the
telephone calls, line sheets, and call logs, as well as the Title III applications, affidavits in support
thereof, and orders relating to each wiretap. The Government further indicates that it does not intend
to introduce the periodic reports as evidence in this case.3
Third, the reports are not related to probable cause. Judge Urbina found probable
cause based on the agent’s affidavits in support of the wiretaps, not based on the reports. The
prosecutors prepared the reports after each wiretap was approved. “The applications for orders [or
3
Prosecutors, not agents, wrote the periodic reports at issue in this case. There is no
indication that any prosecutor will be required to testify, and thus the reports are not material
evidence needed for impeachment or other purposes.
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extensions] authorizing interception are the best sources of information to bolster an argument that
the government lacked initial cause to seek such orders.” Orozco, 108 F.R.D. at 316. “[I]t is
unlikely that progress reports would uncover material falsity contained in the initial application
which would not be evidenced by the application itself or by agents’ testimony.” Id.
Finally, the prosecutors’ memos and notes regarding wiretaps are internal government
documents exempt from discovery under Federal Rule of Criminal Procedure 16(a)(2). U.S. v.
Nakashian, 635 F. Supp. 761, 775 (S.D.N.Y. 1986), rev’d on other grounds, 820 F.2d 549 (2d Cir.
1987). Rule 16(a)(2) provides:
[T]his rule does not authorize the discovery or inspection of reports,
memoranda, or other internal government documents made by an
attorney for the government or other government agent in connection
with investigating or prosecuting the case.
Fed. R. Crim. P. 16(a)(2). Thus, courts have held that progress reports and the final report relating
to a wiretap are not discoverable pursuant to Rule 16(a)(2). See, e.g., U.S. v. Birdman, Crim. No.
92-00133-07, 1992 WL 203318, *1 (E.D. Penn. 1992); Orozco, 108 F.R.D. at 315-17.
For the foregoing reasons, the Court will deny Timothy Moon’s motion to compel
discovery [Dkt. # 31], as joined by Mark Pray (1), Kenneth Benbow (2), Randolph Danson (3),
Alonzo Marlow (4), Robert McMillan (6), Charles Wade (10), Herman Williams (12), and Larry
Williams (13). A memorializing Order accompanies this Memorandum Opinion.
Date: September 3, 2010 /s/
ROSEMARY M. COLLYER
United States District Judge
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