United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
THOMAS B. RUSSELL, District Judge.
This matter comes before the Court upon several pretrial motions filed by Defendant Edison Artica Alfaro. (Docket Nos. 40, 42-45, 47, 48), to which the Government has responded, (Docket Nos. 72, 75, 70, 74, 71, 73.) Alfaro also filed a motion for leave to file additional motions within ten days of the Government's compliance with his request for discovery. (Docket No. 41.) Moreover, both Alfaro and Co-Defendant Marco Anton Chaires filed motions to adopt any motions filed by the other. (Docket Nos. 48, 59.) Fully briefed, these matters stand ripe for adjudication. The Court will address each motion in turn.
I. Motion to Preserve and Timely Produce Agent's Rough Notes
Alfaro first moves the Court to enter an order compelling government agents to preserve their notes from any interviews with persons who may be witnesses at trial, as well as any notes taken or adopted by agents who will testify as witnesses. He also seeks the preservation of notes that incorporate statements or interviews of a defendant. (Docket No. 40.) The Government responds that the Jencks Act, 18 U.S.C. § 3500, does not oblige it to produce agent notes and reports unless they are adopted by a witness. (Docket No. 72.)
The doctrine articulated in Brady v. Maryland, 373 U.S. 83 (1963), and in the Jencks Act grant a criminal defendant access to certain evidence. Brady requires the prosecution to disclose all exculpatory material and impeachment evidence to a defendant. Brady, 373 U.S. at 87; Jells v. Mitchell, 538 F.3d 478, 501-02 (6th Cir. 2008). The Jencks Act requires that following the testimony of a government witness, the defendant can request and the Court can order the government to provide certain documents that relate to the subject matter of the government witness' testimony. 18 U.S.C. §3055(a), (b).
Interpreting the Brady doctrine, the Sixth Circuit has explained that "the Due Process Clause does not impose an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.'" 102 F.3d 214, 219 (6th Cir. 1996) (quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988)). Rather, the government is bound to preserve only that evidence "that possesses an exculpatory value which was apparent before the evidence was destroyed." Id. Although the Government must preserve any rough notes that are known to exculpate a defendant, it need not preserve all of the rough notes of its agents.
The Sixth Circuit has likewise held that the routine destruction of interview notes does not violate either the Brady doctrine or the Jencks Act. United States v. McCallie, 554 F.2d 770, 773 (6th Cir. 1977) (citing United States v. Hurst, 510 F.2d 1035, 1036 (6th Cir. 1975); United States v. Lane, 479 F.2d 1134, 1135-36 (6th Cir.) cert. denied, 414 U.S. 861 (1973); United States v. Fruchtman, 421 F.2d 1019, 1021-22 (6th Cir.), cert. denied, 400 U.S. 849 (1970)).
However, the fact that the routine destruction of interview notes does not rise to a Brady or Jencks violation does not preclude the Court from issuing an order prohibiting such destruction from this point forward. The Government does not argue that preserving the rough notes produced by its agents would be administratively burdensome or prejudicial in any way. Proceeding with an abundance of caution, the Court perceives no reason why it should not grant Alfaro's motion. In so doing, the Court expresses no opinion as to whether or not the Brady doctrine or the Jencks Act compels the Government to preserve the rough notes of its agents. Therefore, the Court will grant Alfaro's motion.
II. Motion for Leave to File Additional Motions
Alfaro requests ten days from the time the Government complies with his requests for discovery by which to file additional motions, should they become necessary. The Government has not objected. The Court therefore grants Alfaro's motion.
III. Motion to Preserve Evidence for Defense Testing
Alfaro next asks the Court to order the Government "to preserve any and all evidence collected or seized as a result of the investigation of this case so that the evidence can be examined and tested independently by the defense." (Docket No. 42.) He further seeks a statement from the Government acknowledging and explaining any evidence that has already been destroyed or exhausted during testing procedures. Alfaro does not explain which evidence in this case might be subject to testing, nor does he cite to case law supporting his argument that such preservation and disclosure is necessary.
While the Government is required to preserve evidence that is material and favorable to the accused under Brady, the Supreme Court has rejected the notion that the Government must preserve all evidentiary material. See Youngblood, 488 U.S. at 57-59 ("[U]nless a criminal defendant can show bad faith... failure to preserve potentially useful evidence does not constitute a denial of due process of law."); accord United States v. Wright, 260 F.3d 568, 571 (6th Cir. 2001) ("For the failure to preserve potentially useful evidence to constitute a denial of due process, a criminal defendant must show bad faith on the part of the government."). Interpreting the Brady doctrine, the Sixth Circuit has explained that "the Due Process Clause does not impose an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.'" United States v. Jobson, 102 F.3d 214, 219 (6th Cir. 1996) (quoting Youngblood, 488 U.S. at 58). Rather, the Government's duty to preserve extends only to that evidence "that possesses an exculpatory value which was apparent before the evidence was destroyed." Id.
Here, Alfaro has pointed to no bad faith on the Government's part. Moreover, the Government is aware of its Brady obligations to retain material exculpatory evidence. Accordingly, because Alfaro's motion exceeds the scope of what is required, the Court will deny it. However, the Court notes that the Government does not object to Alfaro's effort to conduct independent testing, so long as the chain of custody is preserved and all individuals who perform such tests are qualified to do so. Moreover, the Government requests that the arresting agent and the Assistant United States Attorney be present during ...