The opinion of the court was delivered by: Paul L. Friedman United States District Judge
MEMORANDUM OPINION AND ORDER
This matter is before the Court on defendant David Safavian's renewed motion to compel discovery, the government's opposition, the defendant's reply, the government's sur-reply, and the defendant's response. The government also seeks a clarification of the Court's Opinion of December 23, 2005, which motion the defendant opposes; the government has filed a reply to the defendant's opposition, and the defendant has filed a sur-reply.
In his renewed motion, defendant seeks an order compelling the United States to provide him with "a redacted portion of all notes, documents and tapes of the 302 interview of Jack Abramoff insofar as such notes, documents and tapes concern or reference statements of Mr. Safavian." Defendant David H. Safavian's Renewed Motion to Compel Discovery ("Renewed Motion") at 1. The government has acknowledged that there are a "few paragraphs of information in the Abramoff 302 pertaining to Mr. Safavian's statements," id., but maintains that non-defendant witness statements are not subject to Rule 16 pretrial disclosure and that whatever Mr. Abramoff said to an FBI or other federal agent is not a statement of the defendant.
Government's Combined Memorandum in Opposition to Defendant's Motion to Compel Discovery and in Support of Government's Motion for Clarification ("Gov't. Opp.") at 1-2, 4-5. The defendant argues that relevant portions of the notes, documents or tapes are discoverable either under Rule 16(a)(1)(B)(i) or Rule 16(a)(1)(E). The Court disagrees.
The few potentially relevant paragraphs in the Abramoff 302 are not "written or recorded statement[s] by the defendant" within the meaning of Rule16(a)(1)(B)(i) of the Federal Rules of Criminal Procedure; they are the statements of Mr. Abramoff. Mr. Abramoff neither transcribed in writing nor recorded Mr. Safavian's statements when Mr. Safavian made them. Rather, Mr. Abramoff subsequently repeated to the FBI agent his recollection of certain statements made to him by Mr. Safavian. The FBI agent then transcribed or recorded Mr. Abramoff's statements. Because the FBI 302 does not contain statements of the defendant, but statements made by a non-defendant reporting his recollection of statements of the defendant, it is not discloseable under Rule 16(a)(1)(B)(i). See United States v. Burns, 15 F.3d 211, 214 n. 1 (1st Cir. 1994); In re United States, 834 F.2d 283, 284-86 (2d Cir. 1987).
If Mr. Abramoff does not testify at Mr. Safavian's trial, the testimony of the FBI agent about what Mr. Abramoff said Mr. Safavian said would be inadmissible hearsay. If Mr. Abramoff does testify, the relevant portions of the 302 will have to be produced under the Jencks Act, and Mr. Abramoff will be examined and cross-examined about his recollections. The only use that then could be made of the FBI 302 would be to impeach Mr. Abramoff if he says something different on the witness stand from what the FBI agent recorded, accurately or inaccurately, in the 302. Furthermore, as the Court pointed out in its December 23, 2005 Opinion, Rule 16 does not authorize the pretrial discovery or inspection of statements made by prospective government witnesses like Mr. Abramoff, even if they arguably are "material to preparing the defense" under Rule 16(a)(1)(E), unless, of course, they constitute Brady material as defined in this Court's earlier Opinion. See also United States v. Rudolph, 224 F.R.D. 503 (N.D. Ala. 2004).
As for the government's motion for clarification of the discovery and Brady obligations of the government as set forth in the Court's Opinion of December 23, 2005, the defendant is correct: It is not a motion for clarification at all but a motion for reconsideration and a request for the wholesale retraction of the Court's decisions and reasoning. The Court fully understands that its reading of the term "favorable to the accused" under Brady and its opinion that the post-trial "materiality" standard is irrelevant to pretrial and in-trial Brady decisions to be made by prosecutors and trial judges are inconsistent with the way some Justice Department lawyers have approached their Brady obligations in the past. But there is no need for clarification. There simply is a need for the Justice Department to change the mindset of its trial prosecutors to assure that its approach to Brady is broad and open, "consistent with the special role of the American prosecutor in the search for truth in criminal trials." Strickler v. Greene, 527 U.S. 213, 301-02 (1999) (citing Berger v. United States, 295 U.S. 78, 88 (1935) (the interest of the Justice Department "in a criminal prosecution is not that it shall win a case, but that justice shall be done.")). The Court's December 23, 2005 Opinion stands as it is.*fn1
In sum, the defendant is not entitled under Rule 16 of the Federal Rules of Criminal Procedure to a redacted portion of notes, documents and tapes of the 302 interviews of Jack Abramoff insofar as such notes, documents or tapes concern or reference statements of Mr. Safavian. Whether such material must be produced because it is exculpatory under Brady is a matter that must be determined under the principles enunciated by this Court in its December 23, 2005 Opinion. If there remains any doubt in the prosecutors' minds as to what constitutes Brady, they should submit the "few paragraphs" pertaining to Mr. Safavian's statements to Mr. Abramoff to the Court for in camera review.
For the foregoing, reasons, it is hereby
ORDERED that Defendant David H. Safavian's Renewed Motion to Compel Discovery  is DENIED; and it is
FURTHER ORDERED that the Government's Motion for Clarification is DENIED.