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