MEMORANDUM OPINION
JOHN
D. BATES, UNITED STATES DISTRICT JUDGE
Defendants
Amber Crowder and Shauna Brumfield are awaiting trial on
charges related to an alleged scheme to defraud the District
of Columbia Public Schools ("DCPS"). Currently
before the Court are three pretrial discovery motions: [70]
the government's renewed motion to require reciprocal
discovery; [71] the government's renewed motion to
require pretrial notice and discovery of any
advice-of-counsel defense; and [72] Brumfield's motion
for reconsideration of the Court's previous order
compelling defendants to provide reciprocal discovery by not
later than June 25, 2018. Upon consideration of the three
motions and the parties' memoranda, the applicable law,
and the entire record herein, and for the reasons set forth
below, the Court will deny the government's motion for
reciprocal discovery without prejudice, grant the
government's motion for pretrial notice and discovery
subject to certain clarifications, and deny as moot
Brumfield's motion for reconsideration. The Court will
separately issue a Scheduling Order setting forth additional
details and discovery deadlines.
BACKGROUND
On
October 15, 2017, Brumfield requested from the government all
documents and statements to which she is entitled under
Federal Rule of Criminal Procedure 16(a), which requires the
government to provide, upon request, pretrial disclosure of
certain information, statements, documents, reports, and
expert testimony relevant to the government's case.
See Ex. A to Gov't's Resp. to the
Court's Minute Order ("Brumfield's Rule 16(a)
Request") [ECF No. 78-1]. One category of requested
material includes "books, papers, documents" and
other items if they are "material to the preparation of
Ms. Brumfield's defense," "are intended for use
by the Government as evidence in its case-in-chief at
trial," or "were obtained from or belong to Ms.
Brumfield." Id. at 3 (citing Fed. R. Crim. P.
16(a)(1)(E)). Crowder did not file a discovery request. In
response to Brumfield's request, the government produced
to both defendants, among other things, "all . . . grand
jury transcripts, all interview reports, DCPS records
(including emails), information obtained from a search
warrant. . ., [and] bank records." Gov't's Resp.
to the Court's Min. Order ("Gov't's Resp. to
Sept. 10, 2018 Order") [ECF No. 78] at 2.
As part
of each of its productions to defendants, the government
requested reciprocal discovery under Federal Rule of Criminal
Procedure 16(b)(1)(A), which states:
If a defendant requests disclosure under Rule 16(a)(1)(E) and
the government complies, then the defendant must permit the
government, upon request, to inspect and to copy or
photograph books, papers, documents, data, photographs,
tangible objects, buildings or places, or copies or portions
of any of these items if:
(i) the item is within the defendant's possession,
custody, or control; and
(ii) the defendant intends to use the item in the
defendant's case-in-chief at trial.
After
neither Crowder nor Brumfield responded to the
government's requests, the government moved for an order
compelling both defendants to provide reciprocal
discovery.[1] The government argued that its
production to defendants entitled it, under Rule 16(b)(1)(A),
to disclosure of the specific material defendants intend to
use to support their "case-in-chief' at trial.
See Gov't's Mot. for Reciprocal Disc, at 1.
The term "case-in-chief," the government added,
should be read to include substantive, non-impeachment,
evidence the defense intends to use during cross-examination
of government witnesses. Id. at 2-3.
Defendants
separately opposed.[2] Brumfield argued that the motion to compel
was "unnecessary" because "[t]he Defense is
aware of its discovery obligations" under Rule
16(b)(1)(A). Brumfield's Opp'n to Reciprocal Disc, at
1. Crowder's opposition argued that the motion for
reciprocal discovery was premature and added that "the
government does not indicate when it was that it provided
discovery in response to a request made by
Crowder." Crowder's Opp'n to Reciprocal
Disc, at 1 (emphasis added). Neither opposition asserted that
the government failed to comply with Brumfield's initial
request for discovery under Rule 16(a)(1)(E) or took a
position on the scope of evidence subject to Rule 16(b)(1)(A)
disclosure.
At an
April 2018 motions hearing, the Court indicated that it was
inclined to require compliance with reciprocal discovery
obligations at some point in June, to which no party offered
any response or objection. See Mot. Hr'g Tr.
[ECF No. 54] at 57:3-19. The Court subsequently ordered
defendants to comply with their reciprocal discovery
responsibilities under Rule 16(b) by no later than June 25,
2018. See May 17, 2018 Order [ECF No. 56]. After neither
defendant produced documents to the government by the June
deadline, the government filed the renewed motion for
reciprocal discovery currently before the
Court.[3] Brumfield responded by moving for
reconsideration of the Court's previous order to compel
reciprocal discovery, which doubled as an opposition to the
government's renewed motion to compel.[4] Crowder filed no
new written opposition.
To aid
in considering the renewed reciprocal discovery motions, the
Court ordered the parties to file any discovery requests
relevant to those motions and asked the government to clarify
whether it has completed production in response to any Rule
16(a) requests. See Sept. 10, 2018 Order [ECF No.
75]. In response, the government filed Brumfield's
original Rule 16(a) request for pretrial discovery and
averred that-except for "a criminal history check for
all its witnesses" which it intends to disclose closer
to trial-the government has "complied with all of the
requests." Gov't's Resp. to Sept. 10, 2018 Order
at 2. For her part, Brumfield responded with a list of
discovery requests, including: "[a]ny and all exhibits
the government intends to use in its case-in-chief at
trial"; the "names of every witness" the
government plans to call; the "content of the
witness's testimony"; "exhibits the government
intends to introduce through each witness"; and
"[a]ny and all jury instructions the government intends
to proffer." Def Shauna Brumfield's Resp. to the
Court's Min. Order ("Brumfield's Resp. to Sept.
10, 2018 Order") [ECF No. 83].[5]
At
approximately the same time as the government's original
motion for reciprocal discovery, the government separately
moved to require defendants to provide notice and discovery
if they intend to assert an "advice-of-counsel"
defense at trial.[6] The government argued that advance notice
would allow them a chance to discover and review
otherwise-privileged materials related to that defense,
thereby avoiding an unnecessary delay during trial.
See Gov't's Mot. for Notice & Disc, at
2-3. Crowder opposed on behalf of the defense, arguing that
the Federal Rules of Criminal Procedure do not require
defendants to provide notice of an advice-of-counsel defense
and that the motion was in any event premature.[7]
The
Court denied the government's motion without prejudice to
reconsideration closer to trial, see May 17, 2018 Order [ECF
No. 55], and ordered any renewed motion and opposition by no
later than August 8 and August 15, respectively, see
Scheduling Order [ECF. No. 69]. The government timely filed a
renewed motion seeking ...