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United States v. Henderson

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

December 20, 2016




         This matter comes before the Court on Defendant Michael Henderson's (“Defendant”) Motion to Join Specific Motions Previously Filed by Co-Defendant Jen Seko. [Dkt. 380.] In this motion, Defendant seeks to join and fully adopt the motions and memoranda in support of Jen Seko's original three discovery motions: (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. (Def. Mot. at 1.) Defendant places particular emphasis on Ms. Seko's third motion. (Id.)

         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. Finally, the Court will grant Defendant's motion to retain copies of certain witness interview reports.

         I. Background

         Michael Henderson 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. Henderson in particular is charged with serving as the signatory for various bank accounts used to deposit payments from homeowners targeted by the scheme, as well as serving as a “customer service representative” in the scheme. [Dkt. 254, ¶ 5.] Trial is scheduled to begin on February 13, 2017.

         To date, the Government has provided Defendant's counsel with four indices. On September 28, 2016, the Government provided the first index, or discovery log, 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.” [Dkt. 369 at 10-11.] 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.)

         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 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 claims that he could not possibly read all of the materials before trial. [See, e.g., id., ¶ 14.][1] In other words, Defendant's counsel argues that he cannot render effective assistance to his client.

         The 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 ...

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