United States District Court, W.D. Virginia, Abingdon Division
Zachary T. Lee, Assistant United States Attorney, Abingdon,
Virginia, for United States.
Timothy W. McAfee, The McAfee Law Firm, Big Stone Gap,
Virginia, for Defendant.
OPINION AND ORDER
P. Jones United States District Judge
counsel in this criminal case has sought review of the
magistrate judge's Order denying his motion seeking
permission to provide the defendant copies of
government's discovery material, rather than requiring
him to review the material at defense counsel's office.
For the following reasons, I will overrule the objection, and
the magistrate judge's Order will stand.
September 11, 2018, the government moved that it be permitted
to disclose to defense counsel “grand jury materials,
tax return information, criminal histories, medical records,
witness interview reports, materials covered by the Privacy
Act, and other materials” as part of voluntary
discovery. Mot. Voluntary Disclosure of Grand Jury and Other
Materials 1, ECF No. 12. The magistrate judge granted the
government's motion and entered an Order that, among
other things, prohibits the defendant himself from possessing
any of the material produced by the government unless he is
in the presence of his defense counsel.
the defendant filed a motion requesting that the court permit
him to have copies of the government's discovery
materials, subject to “an appropriate Order that he not
disclose the materials to anyone and other restrictions that
the Court finds to be appropriate.” Mot. Def. to Have
Copy of Disc. Materials 1, ECF No. 45. The government filed a
response in opposition. The magistrate judge denied the
motion, and defense counsel filed an objection to the
magistrate judge's order. The objection has been orally
argued and is now ripe for decision.
party objects to a magistrate judge's ruling on
non-dispositive matters, a district court must assess whether
the decision was clearly erroneous or contrary to law based
only on the facts presented to the magistrate judge.
Fed.R.Civ.P. 72; see also Tafas v. Dudas, 530
F.Supp.2d 786, 796 (E.D. Va. 2008). The district judge is
only empowered to set aside the magistrate judge's ruling
if that ruling was, in fact, clearly erroneous or contrary to
law. Id. “A court's ‘finding is
“clearly erroneous” when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.'” Bruce v.
Hartford, 21 F.Supp.3d 590, 593- 94 (E.D. Va. 2014)
(quoting United States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948)).
the magistrate judge was required to assess whether the
defendant established good cause to modify the existing
Order's prohibition on his possession of any of the
discovery materials outside the presence of his counsel.
See Fed. R. Crim. P. 16(d)(1). Although the Rule
does not define good cause, the Advisory Committee notes
explain that courts should consider, among other things, the
safety of witnesses and any danger of witness intimidation.
Fed. R. Crim. P. 16 advisory committee's note to 1966
amendment. However, a protective order under Rule 16(d)
should not override a defendant's right to a fair trial,
United States v. O'Keefe, Criminal No. 06-0249
(PLF), 2007 WL 1239204, at *2 (D.D.C. Apr. 27, 2007), which
includes the right to assist and participate meaningfully in
the defense, see Faretta v. California, 422 U.S.
806, 819 (1975).
support of his motion for copies of the discovery materials,
the defendant argued that the government would not be
prejudiced by allowing him copies, his ability to meet with
his counsel during normal hours to review the materials is
significantly hampered by his employment, the volume of
discovery is large, and his ability to aid his counsel in his
defense is undermined by his lack of ready access to the
opposition, the government asserted that the materials it has
produced contain sensitive information, including witness
interviews, grand jury testimony transcripts, identifying
information about witnesses and other parties, audio and
video recordings of witness interviews, and information
regarding confidential informants, among other things.
Further, the government stated that because the allegations
against the defendant include sexual relationships with
confidential informants, the grand jury testimony and witness
interviews contain highly personal information about
potential witnesses and others. In addition, the government
pointed out that the defendant is not incarcerated, and thus
he has relatively unfettered access to his defense counsel.
The government also noted that the defendant has been charged
by the grand jury in this case with destroying evidence,
obstructing justice, and tampering with witnesses, charges
that may give rise to concerns about his unsupervised
possession of discovery materials.
that the magistrate judge's Order denying the motion for
copies of the government's discovery materials was not
clearly erroneous or contrary to law. Although Workman argues
that the requirement that he meet with his counsel to review
the discovery materials is inconvenient and burdensome
because he will have to take approximately 50 hours off work
to do so, the hardship to him is relatively minor in light of
the potential for harm to the government's witnesses.
Cf. United States v. DeLeon, No. CR 15-4268 JB, 2016
WL 7242579, at *32 (D.N.M. Oct. 28, 2016) (modifying a Rule
16(d) protective order in light of the significant burden to
defense counsel of meeting with the defendant in prison to
review discovery materials for 400 to 500 hours). The
Superseding Indictment against Workman shows that there is
probable cause to believe that he has intimidated a
confidential informant and altered or destroyed records,
making it appropriate to limit his unsupervised access to
discovery materials. See United States v. Garcia,
406 F.Supp.2d 304, 306 (S.D.N.Y. 2005) (finding it
appropriate to limit the defendants' possession of
witness statements when the charges against them raised
concerns of witness intimidation); see also United States
v. Barbeito, Criminal Action No. 2:09-cr-00222, 2009 WL
3645063, at *1 (S.D. W.Va. Oct. 30, 2009) (noting that while
paper copies of discovery materials are not required to