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United States v. Crowder

United States District Court, District of Columbia

September 24, 2018

UNITED STATES OF AMERICA,
v.
AMBER R. CROWDER, also known as "AMBER HINES," and SHAUNA MARIE BRUMFIELD, also known as "MARIE MATTHEWS," also known as "SHAUNA SNELL," Defendants.

          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 ...


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