Friday, February 24, 2006
One problem faced by defense counsel in many white collar crime prosecutions is the massive number of documents, and the approach of prosecutors to simply say, "Here they are, you figure out what is (and is not) important." The end result of a long-term grand jury investigation may be that hundreds of thousands of pages of records are produced, and once the defendant is indicted, the government merely makes the documents available without identifying which will be used in its case-in-chief to establish guilt -- the "back up the truck" approach to discovery. In United States v. Anderson, a criminal tax prosecution in the District of Columbia, U.S. District Judge Paul Friedman ordered prosecutors to identify all the documents the government planned to use in its case-in-chief. The case involves at least 500,000 pages of records, and to this point prosecutors have relied on the "open file" discovery policy to meet their discovery obligations, which does little to aid the defendant in preparing for trial. Anderson is charged with tax evasion arising from off-shore accounts that allegedly involve over $450 million. A search warrant at his home resulted in the seizure of a large volume of documents, and a three-year grand jury investigation produced even more records, primarily from third-parties, such as banks, accounting firms, etc.
Judge Friedman directed the government to identify all records by March 31, 2006 (nine months before trial) that it intends to use in its case-in-chief that were seized from Anderson. The judge relied on Federal Rule of Criminal Procedure 12(b)(4)(B) for this portion of the order, which provides: "At the arraignment or as soon afterward as practicable, the defendant may, in order to have an opportunity to move to suppress evidence under Rule 12(b)(3)(C), request notice of the government's intent to use (in its evidence-in-chief at trial) any evidence that the defendant may be entitled to discover under Rule 16." The district court held that this provision is mandatory, and simply making the documents obtained in the investigation available to the defendant did not fulfill the requirements of the Rule.
Regarding the other records, Judge Friedman used his discretionary authority to order greater discovery by the March 31 date than that provided under Federal Rule of Criminal Procedure 16(a)(1)(E), which states:
Upon a defendant’s request, the government must permit the defendant 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 the item is within the government’s possession, custody, or control and: (i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant.
The judge noted that the government's open file policy met the minimum requirements of the Rule, but that the nature of the case and volume of documents demanded that the government go further in identifying those records it intended to use at trial. The court stated:
Given the enormous volume of material produced in this case and defendant’s limited resources, it is apparent that requiring defendant’s counsel to peruse each page of the materials at issue here – in effect, to duplicate the work of document review presumably already done by the government – would materially impede defendant’s counsel’s ability to prepare an adequate defense or, as repeatedly emphasized by defendant’s counsel at oral argument, to evaluate meaningfully the government’s plea offer and to engage in fruitful plea negotiations . . . The government does not credibly contest this reality. This fact alone counsels the Court, in the exercise of its discretion under Rule 16, to grant defendant’s discovery request.
The court noted that having the government identify the records it intends to use at trial will not only assist the defendant in trial preparation, but also allows defense counsel to evaluate the case to determine whether to pursue a plea bargain. Approaching discovery in white collar crime cases as the equivalent of finding the relevant needles in the haystack of banker boxes is hardly conducive to fair trial preparation and allowing the defense to understand the scope of the government's case. (ph)