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United States v. Dixon

United States District Court, District of Columbia

February 8, 2019

UNITED STATES OF AMERICA,
v.
DONZELL LORENZO DIXON, Defendant.

          MEMORANDUM OPINION

          TREVOR N. McFADDEN, U.S.D.J.

         A federal grand jury indicted Donzell Dixon on counts of robbery; using, brandishing, and carrying a firearm during the robbery; and unlawful possession of a firearm by a convicted felon. To expedite the provision of discovery to Dixon while guarding the victim's privacy and safety rights, the Government has moved for a protective order to limit the viewing, use, dissemination, and post-litigation retention of police body-worn camera (“BWC”) material. Because the Government has shown good cause, the Court will grant the motion.

         I.

         Dixon was arrested in December 2018. See ECF No. 2. A “significant amount” of BWC video footage relevant to his case was captured by “numerous [police] officers.” Gov't's Mot. for Protective Order Governing Body Worn Camera Materials (“Gov't's Mot.”) at 2, ECF No. 8. The officers recorded “footage from the victim's report of the armed robbery the night of the incident, as well as footage from . . . the execution of the search warrant at the defendant's home approximately two days later.” Id.

         In the two months since Dixon's arrest, the parties have “attempted to come to a consensus on an appropriate protective order” for the BWC footage but “are at irreconcilable odds on this issue.” Id. at 1. The Government believes that a protective order is necessary to ensure the privacy and safety of the victim and “numerous civilian witnesses unrelated to this investigation.” Id. at 2. Among other things, the proposed order:

• Precludes disclosure of the BWC material to anyone other than Dixon, his legal defense team, and people authorized by the Court;
• Requires defense counsel to ensure that neither Dixon nor anyone other than the legal defense team view any footage that includes personally identifying information about the victim or a witness; and
• Prohibits use of the BWC material in matters unrelated to this case.

See Protective Order Governing Discovery of Body Worn Camera Materials (“Protective Order”), ECF No. 8-1.

         Dixon contests the need for this order. He suggests that “[v]ideo footage that captures the victim or shows civilian witnesses, without more, does not establish good cause for any special protection.” Def.'s Opp. to Gov't's Mot. (“Def.'s Opp.”) at 3, ECF No. 9. Both parties have submitted briefs detailing their arguments.[1]

         II.

         Federal Rule of Criminal Procedure 16 governs discovery in criminal cases. Rule 16(a) requires the Government to produce, upon the defendant's request, any documents and data that are material to preparing the defense. See Fed. R. Crim. P. 16(a)(1)(A)-(G). But upon a showing of good cause, courts may “deny, restrict, or defer discovery . . . or grant other appropriate relief.” Fed. R. Crim. P. 16(d). This relief includes issuing protective orders. See id.

         When the Government is seeking a protective order, it bears the burden of showing that good cause exists for its issuance. See United States v. Johnson, 314 F.Supp.3d 248, 251 (D.D.C. 2018). Good cause requires a “particularized, specific showing.” United States v. Bulger, 283 F.R.D. 46, 52 (D. Mass. 2012). But the level of particularity required depends on the nature and type of protective order at issue. Id.

         In determining whether good cause exists, courts have considered whether (1) disclosure of the materials in question would pose a hazard to others; (2) the defendant would be prejudiced by a protective order; and (3) the public's interest in disclosure outweighs the possible harm. See, e.g., United States v. Smith, 985 F.Supp.2d 506 (S.D.N.Y. 2013). “Among the considerations to be taken into account by the court will be the safety of witnesses and others, a particular danger of perjury or witness intimidation, and the protection of information vital to national security.” United States v. Cordova, 806 F.3d 1085, 1090 (D.C. Cir. 2015) (cleaned up).

         Courts often issue protective orders in criminal cases. They have “vast” discretion to “assure that a defendant's right to a fair trial [is] not overridden by the confidentiality and privacy interests of others.” United States v. O'Keefe, 2007 WL 1239204 at *2 (D.D.C. 2007). Indeed, courts “can and should, where appropriate, place a defendant and his counsel under enforceable orders against unwarranted ...


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