BARRY J

BARRY J. PORTMAN

Federal Public Defender

_____________ _______________

Assistant Federal Public Defender

450 Golden Gate Avenue

San Francisco, CA 94102

Telephone: (415) 436-7700

Counsel for Defendant _________________

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

____________,

Defendant.

)

No. CR

MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEFENDANT=S MOTION TO REQUIRE DISCLOSURE OF BRADY AND JENCKS MATERIAL 21 DAYS BEFORE TRIAL

Pretrial Conference Date:

__________, 2000

INTRODUCTION

[Insert defendant] hereby moves the Court to require the government to disclose all exculpatory evidence, including, for impeachment purposes, prior statements of prospective government witnesses relating to their respective testimonies, not later than 21 days before trial begins.

DISCUSSION

I. BRADY AND ITS PROGENY REQUIRE DISCLOSURE OF ALL EXCULPATORY MATERIAL, INCLUDING IMPEACHMENT EVIDENCE PERTAINING TO GOVERNMENT WITNESSES, NOT LATER THAN 21 DAYS BEFORE TRIAL.

In Brady v. Maryland,the Supreme Court held that Athe suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution@ 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963)(emphasis added). Thus, under Brady, Athe prosecution has the duty under the due process clause to insure that criminal trials are fair by disclosing evidence favorable to the defendant upon request . . . .@ Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 845 (1977).

A defendant=s failure to request Brady materials does not abrogate the government=s duty under the due process clause to disclose exculpatory evidence to the defendant. See Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S. Ct. 1555, 1565-66 (1995). Whether or not a defendant a Brady request, disclosure Amust be made at a time when the disclosure would be of value to the accused.@ United States v. Davenport, 753 F.2d 1460, 1462 (9th Cir. 1985). Thus, the government must disclose all Brady materials early enough to be of use to the defendant. See id. When a defendant does not have enough time to review disclosed Brady materials and determine how to use them effectively, it is appropriate for the court to grant a continuance. See United States v. Kearns, 5 F.3d 1251, 1254 (9th Cir. 1993).

In this case, late disclosure will require [insert defendant] to move for a continuance so that a proper review of the materials can be done in order to determine how best to use them. In order to avoid long and unnecessary delays, this Court should grant [insert defendant]=s request for disclosure of all Brady materials not later than 21 days before trial. Such disclosure is not only mandated by the due process clause, but is also strongly encouraged by concerns for judicial economy.

II. ALL JENCKS ACT IS IMPEACHMENT MATERIAL, IS THUS NECESSARILY BRADY MATERIAL, AND MUST BE DISCLOSED NOT LATER THAN 21 DAYS BEFORE TRIAL.

The Jencks Act, 18 U.S.C. ' 3500, provides that A[i]n any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.@ 18 U.S.C. ' 3500(a). Though the statute purports to protect such statements and reports from compelled disclosure, the Constitution in fact requires such disclosure upon the defendant=s request, as the Supreme Court has made clear in Jencks v. United States, 353 U.S. 657, 77 S. Ct. 1007 (1957), Brady and its progeny.

In Jencks, the Supreme Court held that, in actions brought by the United States, criminal defendants are entitled to inspect, for impeachment purposes, all statements of government witnesses in the government=s possession relating to said witnesses= testimony. See id. at 667-69, 1012-14. Highlighting the importance of prior witness statements for impeachment purposes, the Court observed that A[e]very experienced trial judge and trial lawyer knows the value for impeaching purposes of statements of the witness recording the events before time dulls treacherous memory.@ Id. at 667, 1013. The Court reasoned that the defendant is entitled to inspect the statements A[b]ecause only the defense is adequately equipped to determine the effective use for purpose of discrediting the Government=s witness and thereby furthering the accused=s defense . . . .@ Id. at 668-669, 1013 (emphasis added). The Court held that, to establish relevance and materiality, the previous statements need only be Ashown to relate to the testimony of the witness.@ Id. at 669, 1014.

Congress codified the Court=s holding in Jencks in 18 U.S.C. ' 3500, commonly known as the Jencks Act. The Jencks Act also provides that, A[a]fter a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement . . . of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.@ 18 U.S.C. ' 3500(b). Like the rule announced in Jencks, the Act was designed to provide defendants with material useful for impeachment purposes. As the Supreme Court wrote regarding subsection (a) of the Act, A[t]his section manifests the general statutory aim to restrict the use of such statements to impeachment.@ Palermo v. United States, 360 U.S. 343, 349, 79 S. Ct. 1217, 1223 (1959).

As the Supreme Court held in Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380 (1985), A[i]mpeachment evidence . . . as well as exculpatory evidence, falls within the Brady rule.@ Jencks Act material is thus subject to the Brady rule requiring that exculpatory evidence in the government=s possession must be disclosed Aupon request.@ Under Bagley and Jencks, previous statements by a government witness relating to said witness= testimony are impeachment evidence and must be disclosed upon request.

A. Material Described By Both the Jencks Act and Brady Must Be Disclosed According to Brady=s Time Requirements

Brady=s requirement of production upon request conflicts with the Jencks Act, 18 U.S.C. ' 3500. In addition to codifying the Jencks holding, the Jencks Act also restricts the timing of compelled production of previous statements by government witnesses, an issue ignored by the Jencks decision. Under 18 U.S.C. ' 3500(a), courts cannot compel the production of any Astatement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) . . . until said witness has testified on direct examination in the trial of the case.@

This Court must determine whether the production of witness statements is controlled by the standards of Brady or by those of the Jencks Act. Admittedly, the Ninth Circuit has previously held that ABrady does not overcome the strictures of the Jencks Act. When the defense seeks evidence which qualifies as both Jencks Act and Brady material, the Jencks Act standards control.@ United States v. Jones, 612 F.2d 453, 455 (1979). Jones, however, was decided before Bagley made clear that impeachment material was itself covered by Brady. See Bagley, 473 U.S. at 676, 105 S.Ct. at 3380 (AImpeachment evidence . . . falls within the Brady rule.@). Furthermore, Jones is at odds with a reasoned analysis of Brady, describing a constitutional right, and the Jencks Act, granting and restricting a statutory one. In a recent decision, the Supreme Court restated the fundamental principle that ACongress may not legislatively supersede our decisions interpreting and applying the Constitution.@ Dickerson v. United States, --- U.S. ---, 120 S.Ct. 2326, 2332 (2000). In discussing the very issue before the Court here, one district court held that

[i]t is inconceivable that a statutory obligation should supersede a constitutional one, especially where even the statutory obligations has [sic] a constitutional Due Process basis . . . [I]t makes no sense to indulge in a crabbed interpretation of a constitutional right, like Brady, and an expansive interpretation of a statutory one like Jencks.

United States v. Shvarts, 90 F.Supp.2d 219, 228 (E.D.N.Y. 2000) (holding that evidence which qualifies as both Jencks Act and Brady material comes under the Brady rule); see also United States v. Narciso, 446 F.Supp. 252, 271 (E.D. Mich. 1977) (A[W]hen two principles of law conflict with one another the criminal justice system demands that the principle favoring greater discovery in favor of the accused must prevail, particularly where, as here, the principle favoring disclosure is of constitutional origin.@).

Because Brady, as a constitutional decision, must supersede the restrictions of the Jencks Act, an earlier statutory provision, the Court should order that all Jencks Act material, which is necessarily covered by Brady and its progeny, be produced not later than 21 days before trial. The Court should do so despite the Ninth Circuit=s contrary holding in Jones because that decision has been called into question by the Supreme Court=s decision in Bagley, and that decision is directly counter to the Supreme Court=s holding in Dickerson that constitutional decisions cannot be altered by Congress legislatively.

Even if production Aupon request@ of Jencks Act material was not required by Brady and its progeny, such production is required by due process and supported by considerations of judicial economy. As Justice Brennan, author of the Jencks decision, later noted in a concurrence joined by Chief Justice Warren and Justices Black and Douglas, A[i]t is true that our holding in Jencks was not put on constitutional grounds, for it did not have to be; but it would be idle to say that the commands of the Constitution were not close to the surface of the decision; indeed, the Congress recognized its constitutional overtones in the debates on the statute.@ Palermo, 360 U.S. at 362-63, 79 S. Ct. at 1230 (Brennan, J., concurring) (footnotes omitted). The rule that government witnesses= prior statements relating to their testimony must be disclosed to the defendant implicates not only rules of evidence, but also constitutional law. Indeed, the Court wrote in Jencks that a contrary rule would Adeny the accused evidence relevant and material to his defense.@ Jencks, 353 U.S. at 667, 77 S.Ct. at 1013. Such a rule, the Court wrote, Awould be clearly incompatible with our standards for the administration of criminal justice . . . [f]or the interest of the United States in a criminal prosecution is not that it shall win a case, but that justice shall be done.@ Id. at 668, 1013 (inner quotations and citations omitted). The disclosure of impeachment evidence - including prior statements by government witnesses - upon request is, independently of the Brady line of cases, mandated by the due process clause, by Aour standards for the administration of criminal justice.@ Id.

Beyond due process considerations, Jencks Act materials should be disclosed early because mid-trial disclosure would result in long and unnecessary delays. If [insert defendant] does not have opportunity to review each set of Jencks material, [she] will need to move for continuances so that [she] can do so. Such continuances and the motions leading thereto will undoubtedly cause delays and interruptions and interfere with the effective and efficient administration of justice; they will be necessary, however, if [insert defendant] does not have a chance to properly review the materials. The Court can avoid these preventable delays by granting the instant motion to require the disclosure of all Brady and Jencks Act material not later than 21 days before trial.

C. Requiring the Government to Produce All Brady and Jencks Act Material Not later Than 21 Days Before Trial Mirrors Local Rules Elsewhere and Is Consistent With the Local Rules in This District

Though this Court has no local rule that would mandate the disclosure requested here, it is instructive to note that the District of Massachusetts has adopted a local criminal rule that provides for discovery and disclosure very similar to that for which [insert defendant] is moving. See Local Rule 116.2 of the Local Rules of the United States District Court for the District of Massachusetts (Mass. L.R. 116.2). The Massachusetts rule requires the prosecution to disclose, not later than 21 days before trial, a whole range of impeachment material, including Jencks Act material. See Mass. LR. 116.2(B)(2). Other Brady material must be disclosed even earlier - not later than 28 days after arraignment or within fourteen days of receipt by the government of a written statement by the defendant that [she] will not file a Waiver of Request for Disclosure. See Mass. L.R. 116.2(B)(1). In short, another District has adopted a local rule with more expansive disclosure requirements than those for which [insert defendant] is presently moving.

In addition to being very similar to the provisions of a District of Massachusetts Local Rule, [insert defendant]=s request is consistent with our own Local Rule 16-1 (Crim. L.R. 16-1). Local Rule 16-1 requires the government and accused to meet and establish a disclosure schedule within 10 days of the entry of a plea of not guilty. See Crim. L.R. 16-1(a) (March 2000). If no schedule is set by the parties, the court may set one sua sponte. See id. Though the rule does not specify what that schedule might or should look like, it makes sense that the Local Rule 16-1 schedule require disclosure of all Brady material, including Jencks Act material, not later than 21 days before trial. Such a schedule is mandated by constitutional law and concerns of judicial economy.

CONCLUSION

For the foregoing reasons, [defendant] respectfully requests that this Court grant the attached proposed order. See Attachment [X].

Dated:

Respectfully submitted,

BARRY J. PORTMAN

Federal Public Defender

[ATTORNEY=S NAME]

Assistant Federal Public Defender

Attachment A