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United States v. Araya

United States District Court, E.D. Virginia, Alexandria Division

December 20, 2016

SAMMY ARAYA, Defendant.



         This 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.]

         For the 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.

         I. Background

         Sammy 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.

         On 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. (Id.)

         On 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.)

         II. Standard of Review

         Federal 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.

         The 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 statute.” Id.

         III. Analysis

         Defendant 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.

         A. Motion for a More Particularized Discovery Log

         Defendant 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, ...

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