United States District Court, E.D. North Carolina, Western Division
T. Numbers, II United States Magistrate Judge
2018, a federal grand jury indicted Defendant Kawuan J.
Robertson on a drug conspiracy charge. In anticipation of
trial, Robertson has filed motions seeking the disclosure of
more documents and information, as well as asking the court
to enter an order sequestering witnesses at trial and allow
him to file additional motions. The court will grant
Robertson's requests in part and deny them in part.
Motion to Sequester Witnesses
seeks to exclude all of the Government's witnesses from
the courtroom during trial. The Government does not oppose
the sequestration of its witnesses, but requests that the
court sequester Robertson's witnesses as well.
Federal Rules of Evidence require that, upon the request of a
party, the court exclude witnesses from trial so that they
cannot hear the testimony given by other witnesses.
Fed.R.Evid. 615. But the court may not exclude certain
categories of people, including “a party who is a
natural person” or a designated officer or employee of
a party that is not a natural person. Id. at 615(a),
(b). The court thus grants Robertson's Motion for
Sequestration (D.E. 102) and orders that all witnesses that
may be called by Robertson or the Government, other than the
defendant and a case agent designated by the Government, are
barred from the courtroom during trial. The Government must
designate its case agent no later than the start of trial.
Motion for Production of Jencks Materials
requests that the court order the Government disclose to
witness statements covered by the Jencks Act, 18
U.S.C. § 3500, fifteen days before trial. (D.E. 99). But
the Jencks Act provides that “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 subpena
[sic], discovery, or inspection until said witness has
testified on direct examination in the trial of the
case.” 18 U.S.C. § 3500(a). The Fourth Circuit
Court of Appeals has explained that because of the
statute's language, a “district court may not
require the government to produce Jencks Act
material relating to one of its witnesses until after the
witness has testified.” United States v.
Lewis, 35 F.3d 148, 151 (4th Cir. 1994).
a district court may not require early disclosure of
Jencks material, the Government may voluntarily
disclose the requested documents and information before
trial. Id. Here, the Government has represented that
it will disclose Jencks material “in time for
its effective use at trial.” D.E. 112 at 2. Given the
plain language of the statute and the Fourth Circuit's
holding in Lewis, Robertson's motion for early
disclosure of Jencks Act materials (D.E. 99) is
Motion to Preserve Evidence
asks the court to order the Government to preserve
agents' notes as well as all evidence subject to
disclosure under Federal Rules of Criminal Procedure 6(e)
(grand jury testimony), 7(f) (bill of particulars), 16
(discovery), 18 (place and prosecution of trial), and
Brady and Giglio materials.
Government contends the motion is unnecessary. It states that
it will turn over grand jury transcripts as required by
controlling case law. It also asserts that it has provided
broad discovery to Robertson and will continue to fulfill its
discovery obligations. And the Government claims that no Bill
of Particulars exists and it is unaware of any evidence
relating to the place and prosecution of trial that would
the agents' notes, under Fourth Circuit precedent,
“investigative notes of government agents, rough or
typed, made in the course of witness interviews, which are
later incorporated in the agent's formal report, are not
statements within the meaning of the Jencks Act, 18
U.S.C. § 3500.” United States v. King,
121 F.R.D. 277, 279 (E.D. N.C. 1988) (citing United
States v. Hinton, 719 F.2d 711, 722 (4th Cir. 1983)).
Thus, the Government need not turn over any handwritten notes
which comprised a formal report. If any requested handwritten
notes do not comprise a formal report but are subject to
disclosure under the Jencks Act, the Government has
represented to the court that it will provide the notes
“in time for effective use at trial.” D.E. 112 at
given the representations by the Government recognizing the
existing evidence and its discovery obligations, the motion
seeking to preserve evidence (D.E. 100) is denied.
Motion for Disclosure of ...