United States District Court, E.D. Virginia, Alexandria Division
December 20, 2016
UNITED STATES OF AMERICA,
SAMMY ARAYA, Defendant.
C. Cacheris UNITED STATES DISTRICT COURT JUDGE
matter comes before the Court on Defendant Sammy Araya's
(“Defendant” or “Mr. Araya”) Motion
to Adopt and Conform Discovery Motion(s). [Dkt. 368.] In this
motion, Defendant seeks to adopt “any and all defense
discovery motions filed in this matter including specifically
docket number 364 filed by co-defendant's counsel.”
[Id. at 1.] Jen Seko's original discovery
motions included: (1) Motion for Clarification of Discovery;
(2) Request for Exhibit List Production 45 Days Prior to
Trial; and (3) Request for Clarification of Discovery Order
to Permit Ms. Seko to Review Discovery. [Dkt. 364.]
Defendant's counsel makes specific arguments only with
regards to Ms. Seko's request for a more particularized
discovery log and the exchange of exhibit lists 45 days
before trial. [Dkt. 368, ¶ 2.]
following reasons, the Court will deny Defendant's motion
for a more particularized discovery log. In line with Ms.
Seko, the Court will allow the parties to exchange exhibit
lists fourteen (14) days prior to trial, should Defendant
Araya's counsel agree. Finally, the Court will deny
Defendant's motion to retain copies of certain
non-victim, substantive witness interview reports.
Araya is charged along with four other co-defendants with one
count of conspiracy to commit mail fraud and wire fraud, five
substantive counts of wire fraud, and five substantive counts
of mail fraud. [Dkt. 254.] These charges arise out of an
alleged nationwide “mortgage modification” fraud
scheme that targeted homeowners. Mr. Araya is specifically
alleged to have been a leader of the fraud scam, who
recruited other co-conspirators into the scheme, provided
training to those co-conspirators, and organized the members
of the conspiracy into “teams” of individuals
operating under his direction and control. [Dkt. 254, ¶
1.] Trial is scheduled to begin on February 13, 2017.
August 5, 2016, the Government emailed Defendant's
counsel to arrange for a first production of discovery. (Gov.
Mem. in Opp. at 2.) The Government asked counsel to: (1) sign
a protective order; (2) specify the method by which they
would like to receive bates-stamped discovery; and (3)
provide a 4-terabyte hard drive onto which the Government
could load some of the electronic data seized in the case.
(Id.) Defendant's attorney responded that he
would prefer to receive discovery on DVDs, but did not
provide a signed protective order or a hard drive.
(Id.) The Government followed up with counsel five
separate times in August in an attempt to get a signed
protective order. (Id.) Defense counsel finally
provided a signed order on August 30, 2016. (Id. at
3.) The government made DVDs available for counsel to pick up
that same day. (Id.) The Government alleges,
however, that Defendant's counsel did not pick up the
discovery until September or early October 2016.
(Id.) Counsel also did not provide the hard drive,
despite another reminder in early September to do so.
September 28, 2016, the Government provided an index, or
discovery log, to all defense counsel, which “consisted
of a 14-page spreadsheet broken down into approximately 640
rows by beginning and ending bates numbers, specifying the
general category of record for each document or range of
documents and the specific custodian from which the records
were received, and further providing additional descriptive
detail about certain records as appropriate.” (Gov.
Mem. in Opp. at 3.) On October 18, 2016, the Government
emailed Defendant's counsel to notify him that an
additional production of materials was ready and attached
three additional indices. (Gov. Mem. in Opp. at 4.) The new
indices included: (1) a supplemental discovery log of the
bates-stamped materials, in the same format as the prior log
provided on September 28, 2016; (2) a supplemental index of
the electronic data seized during the execution of search
warrants; and (3) an index summarizing the hard-copy evidence
that was seized during searches and has been made available
for defense counsel's review. (Id.) The
Government still had not received a hard drive from
Defendant's counsel by that date. (Id.) On
October 21, 2016, Defendant's counsel told the Government
via email that he would provide a hard drive during the week
of October 24, 2016. (Gov. Mem. in Opp. at 4.) As of October
25, 2016, he still had not done so. (Id.)
Standard of Review
Rule of Criminal Procedure 16 states that “the
government must provide to the defendant” a list of
items prior to trial, including: (1) defendant's oral
statements; (2) defendant's written or recorded
statements; (3) defendant's prior criminal record; (4)
any documents or objects that may be material to the defense,
may be used in the Government's casein-chief, or may
belong to the defendant; (5) the results of any examinations
and tests that the Government has in its possession or knows
exist and that may be material to the defense; and (6) a
written summary of potential testimony from expert witnesses.
See Fed. R. Crim. P. 16(a)(1)(A)-(G). It also makes
clear that “[a]t any time the court may, for good
cause, deny, restrict, or defer discovery or inspection, or
grant other appropriate relief.” Id. 16(d)(1).
The rule does not apply to the discovery of statements made
by prospective Government witnesses. Id. 16(a)(2).
Such statements are more properly governed by the Jencks Act,
18 U.S.C. § 3500. Id.
Jencks Act requires the production of the
Government's witnesses' statements after each witness
has testified at trial. See 18 U.S.C. § 3500(a)
(“[N]o statement or report . . . shall be the subject
of subpoena, discovery, or inspection until said witness has
testified on direct examination in the trial of the
case.”). This prohibition is meant to ensure witness
safety, including witnesses who are alleged co-conspirators.
United States v. Beckford, 962 F.Supp. 780, 787
(E.D. Va. 1997) (citing Roberts, 811 F.2d at 259).
Thus, “a district court may not order the disclosure of
Jencks material earlier than provided by
adopts and incorporates Ms. Seko's arguments for his own
discovery motions. (Def. Mot. at 1.) The only unique argument
Defendant makes is the assertion that his counsel is
“unduly burdened” with the “enormous”
discovery in this case, given his employment at a
“small or solo firm.” [Dkt. 368, ¶ 2.] The
Court will now address each motion in turn.
Motion for a More Particularized Discovery Log
first argues that a more particularized discovery log is
necessary because the discovery involves “an unknown
number of documents” which “likely number
millions of printed pages.” [Dkt. 364, ¶ 4.]
Defendant claims that the first index the Government provided
was not sufficiently detailed to be helpful. [Id.,
¶¶ 7-8.] Absent a helpful index, Defendant's
counsel argues that he could not possibly read all of the
materials before trial. [See, e.g., id., ¶
In other words, Defendant's counsel asserts that he
cannot render effective assistance to his client.
Government disputes Defendant's characterization of the
discovery and argues that it has fully and diligently
complied with its discovery obligations in this case. (Gov.
Mem. in Opp. [Dkt. 369] at 12.] As proof of this assertion,
the Government points out that it has provided the discovery
in “multiple searchable formats with accompanying
indices.” (Id. at 14.) It has also provided an
index with more than 600 entries that identifies the bates
range, type of custodian, and the specific custodian.
(Id. at 15.) Furthermore, after the filing of
Defendant Seko's motion, the Government made it possible
for this index to serve as an “overlay” onto the
electronically searchable database. (Id.) As for the
computer and cell phone images, the Government provided these
images in the same electronic format that the Government has
them, sending forensic reports for the four most
sophisticated cell phones and offering to create and
disseminate reports for three more. (Id. at 16.)
Finally, the Government provided a detailed index to describe
the limited hard-copy discovery materials, which includes
“62 line-item entries . . . as well as the dates and
locations from which they were seized.” (Id.
at 18.) Given the myriad ways in which the Government has
sought to help defense counsel access this discovery, the
Government believes it has far exceeded its obligations.
Government also makes several arguments that apply to
Defendant Araya's motion specifically. It points out
that, as the leader and supervisor of the fraud scheme, Mr.
Araya “is uniquely well positioned to understand all of
the materials that have been produced in discovery to
date.” (Gov. Mem. in Opp. at 6.) At the same time, the
Government views Mr. Araya's counsel as “uniquely
poorly positioned” to complain about discovery
production because he filed this motion without making any
effort to engage with the Government regarding specific
discovery-related questions, did so without providing the
requested 4-terabyte hard drive, and declined the
Government's offer to provide him with the bates-stamped
discovery in a database-friendly format. (Id. at
6-7.) The Court agrees.
has cited no legal authority for the proposition that the
Government must provide a meaningful index. In fact, Rule 16
“is entirely silent on the issue of the form that
discovery must take; it contains no indication that documents
must be organized or indexed.” United States v.
Warshak, 631 F.3d 266, 296 (6th Cir. 2010).
Nevertheless, the Government has provided four different
indices in an attempt to help Defendant sort through the
voluminous discovery. The Government has also offered to
clarify points of confusion, an option that Defendant has not
yet used. Furthermore, it has provided the documents in
multiple searchable formats. Given the Government's
efforts in this case, paired with Defense counsel's lack
of effort to even pick up all of the relevant discovery from
the Government, the Court will deny Defendant's motion.
Motion to Exchange Exhibit Lists 45 Days Before
incorporation, Defendant also requests that exhibit lists be
exchanged 45 days prior to trial. [Dkt. 364 at 7.] Absent a
meaningful index, Defendant argues that an exhibit list is
the only way to sort through the voluminous discovery and
prepare for trial. [Id., ¶ 26.]
Government argues that there is no legal authority supporting
Defendant's request for an exhibit list 45 days in
advance. (Gov. Mem. in Opp. [Dkt. 369] at 20.) It claims that
the purpose of an exhibit list is not to guide
Defendant's review of discovery, but to ensure that the
trial runs smoothly. (Id.) Nevertheless, the
Government has agreed to provide Defendant with a draft
exhibit list no later than 14 days before trial, assuming
that Mr. Araya agrees to do the same. (Id. at 21.)
Government is correct that there is no Fourth Circuit
precedent that directly addresses a defendant's request
for an exhibit list approximately six weeks before trial. The
Fourth Circuit has clarified, however, that “Rule 16
does not require the prosecution to disclose all the minutia
[sic] of its evidence, to reveal its trial strategy, and to
delineate with total specificity the case it intends to
present.” United States v. Anderson, 481 F.2d
685, 694 (4th Cir. 1973) (internal citations and quotations
omitted). Rather, “[w]hether to order the disclosure of
an exhibit list . . . lies within the sound discretion of the
court.” See Anderson, 481 F.2d at 693.
instant case, Defendant's motion sounds strikingly
similar to a request that the Government “disclose all
the minutia of its evidence” against him. Given that
the Government has now provided Defendant with four indices,
Defendant has failed to show why the receipt of an exhibit
list 45 days prior to trial would be both material to the
preparation of his defense and reasonable in light of the
circumstances. Accordingly, the Court denies Defendant's
motion. The Defendant may still agree, however, to exchange
exhibit lists with the Government 14 days prior to trial.
Motion for Copies of Certain Witness Reports
Defendant's Motion in the light most favorable to him,
Defendant's final request is that he be allowed to retain
copies of certain witness interview reports. [Dkt. 364 at 8.]
Government argues that Part IV of the discovery order allows
Defendant's counsel to disclose the contents of
Jencks Act and Giglio materials to Mr.
Araya, so long as counsel does not provide him with copies.
(Gov. Mem. in Opp. [Dkt. 369] at 21.) The Government claims
that this is a standard provision in the Eastern District of
Virginia, having been “routinely ordered in hundreds of
cases.” (Id. at 22.) Furthermore, the
Government argues that the restriction clearly applies only
to Jencks/Giglio materials (i.e., interview
reports) associated with the Government's witnesses for
its case-in-chief. (Id.) The Government has
identified these reports as “interview summaries”
in the discovery index, and has offered to answer any
specific questions that Defendant's counsel may have
about whether particular documents should be included in the
restriction on providing copies. (Id.) Finally, the
Government points out that, given Mr. Araya's leadership
role in the fraud scheme, there is a heightened risk of
witness intimidation and tampering. (Gov. Mem. in Opp. at
5-6, n.3.) Given that risk, Mr. Araya should not be permitted
to retain copies of interview reports. (Id.)
Court finds Mr. Araya's arguments unpersuasive. Mr.
Araya's alleged role as the leader of the fraud scheme
implicates the underlying concerns with witness safety from
the Jencks Act, 18 U.S.C. § 3500.
Beckford, 962 F.Supp. at 787 (citing
Roberts, 811 F.2d at 259). Accordingly, this Court
denies Defendant's request to permit Mr. Araya to retain
copies of witness interview reports.
foregoing reasons, this Court denies as moot Defendant's
request for a more particularized discovery log. The Court
grants the parties' request to exchange exhibit lists
fourteen (14) days before trial, assuming that Defendant
agrees. Finally, the Court denies Defendant's request to
permit Mr. Araya to retain copies of the interview reports of
certain non-victim, substantive witnesses.
appropriate order shall issue.
 After receiving three additional
indices from the Government, Ms. Seko withdrew this motion.
 After receiving three additional
indices from the Government, Ms. Seko later withdrew this
motion and agreed to exchange exhibit lists 14 days prior to
trial. [Dkt. 372.]