Page 1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
.
| |
UNITED STATES OF AMERICA |
) |
Criminal No.: H-97-93 |
| |
|
) |
|
| |
v. |
) |
Violations: |
| |
|
) |
|
| |
MARK ALBERT MALOOF, |
) |
15 U.S.C. ｧ1 |
| |
|
) |
18 U.S.C. ｧ 371 |
| |
Defendant. |
) |
Filed 6/23/97 |
UNITED STATES' COMBINED RESPONSE TO DEFENDANT'S
MOTION FOR PRODUCTION AND DISCLOSURE AND DEFENDANT'S SUPPLEMENTAL MOTION FOR PRODUCTION AND DISCLOSURE
The United States of America, through its undersigned attorney, hereby
responds to both Defendant's Motion for Production and Disclosure ("Defendant's Motion")
and Defendant's Supplemental Motion for Production and Disclosure ("Defendant's
Supplemental Motion").
The United States is ready and able to provide defendant with Fed. R. Crim.
P. 16 discovery. The United States also is aware of its obligations under Brady v.
Maryland, 373 U.S. 83 (1963), and its progeny, and will provide defendant with Brady
material in a timely fashion. However, the United States filed a Motion for Protective Order
on June 11, 1997, in order to maintain grand jury secrecy and meet its obligations under
Fed. R. Crim. P. 6(e). The United States, therefore, will immediately make available Rule
16 discovery to defendant once this Court has ruled on its Motion.
The United States' Responses
With these considerations in mind, the United States responds specifically to each
request contained in the Defendant's Motion and Defendant's Supplemental Motion. The
Page 2
paragraph numbers of this Response correspond directly to numbering of the requests in
those motions.
REQUESTS:
I. Rule 16 Requests:
1. (a) Any and all statements purporting to be those of the
Defendant, whether oral, written, recorded, transcribed or otherwise.
(b) Any and all reports, notes or memoranda, containing
any statement by the Defendant, which are in the possession of, or
available to, the Government.
The United States will meet its obligations under Rule 16(a)(1)(A) and provide
to defendant any statements made by him which are in the possession, custody or control
of the government. Further disclosure is neither authorized nor warranted.
(c) The substance of any oral statements made by the
Defendant, before or after his arrest, to any law enforcement officer,
official or employee.
The United States will meet its obligations under Rule 16(a)(1)(A) and provide
to defendant the substance of any oral statement made by defendant to any person then
known by him to be a government agent.
2. Any and all written or oral waivers or consents given or
executed by the Defendant or agents acting on Defendant's behalf.
The United States will meet its obligations under Rule 16(a)(1)(A) and provide
to defendant any statements made by him which are in the possession, custody or control
of the government.
3. Statements of asserted co-conspirators made during the
course of and in furtherance of the conspiracy.
Page 3
4. Statements of asserted co-conspirators which concern
activities conducted during the course of and in furtherance of the
conspiracy.
The United States objects to defendant's request for statements of asserted
co-conspirators on the grounds that defendant is not entitled to such information under
Rule 16. United States v. Tarantino, 846 F.2d 1384 (D.C. Cir. 1988), cert denied 488 U.S.
840 (1988); United States v. Orr, 825 F.2d 1537 (11th Cir. 1987); United States v. Roberts,
811 F.2d 257 (4th Cir. 1987) en banc; United States v. Bennett, 158 F.R.D. 482 (D. Kan.
1994). Therefore, defendant's request for co-conspirator statements under Rule 16 should
be denied.
The United States will disclose statements of testifying co-conspirators as
required by Fed. R. Crim. P. 26.2 and 18 U.S.C. ｧ 3500 ("Jencks Act") three days before
trial, as set forth in response to Defendant's Motion, ｶ III(9), below. The United States will
produce any exculpatory evidence contained within co-conspirator statements to defendant
pursuant to Brady and its progeny.
5. Any and all papers, documents, records, photographs,
books, tangible objects, videotapes, tape recordings or portions of
any of these things within the possession, custody, or control of the
Government that are:
a. Material to the preparation of the Defendant's defense,
specifically including:
i. All documents, records or computer data
produced to the grand jury by Bay Industries, Inc., Mizell Bros.
Company, Hiplax International Corporation d/b/a Brite Insulation
Corporation and any other laminating company whose employees
allegedly or assertedly conspired with the Defendant, including all
price lists, transactional data, telephone bills, correspondence, and
documents describing conversations with customers, such as call
Page 4
reports.
ii. All documents produced to the grand jury by
customers of Bay Industries, Inc., Mizell Bros. Company, Hiplax
International Corporation d/b/a Brite Insulation Corporation and any
other laminating company whose employees allegedly or assertedly
conspired with the Defendant, including all price lists, transactional
data, telephone bills, correspondence, and documents describing
conversations with employees of laminating companies.
iii. All documents produced to the grand jury by
fiberglass suppliers (i.e., Owens-Corning, Schuller Manville, Knauf,
Certainteed Manson), including all documents containing any of the
following information: price of fiberglass to laminators; market
shares of laminators; allocations of fiberglass to laminators;
quarterly quantities (or revenues) sold by laminators; and number
and identity of laminators in each geographic market.
The United States will permit defendant to inspect and copy any and all materials
in the possession, custody and control of the government and within the scope of the
charged offense, pursuant to Rule 16(a)(1)(C). Such materials will include all documents
produced to the grand jury by: Bay Industries, Inc., Houston branch and defendant; Mizell
Bros. Co., Dallas and Atlanta branches; Hiplax International Corp. d/b/a Brite Insulation
Corp; PBI/Selle; TMG Corp; all customers of laminating companies doing business in
Texas; and, all fiberglass suppliers who sold or provided fiberglass to Bay Industries, Inc.,
Mizell Bros., Co., Brite Insulation Corp., PBI/Selle, and TMG.
iv. All documents written by Wally Rhodes, Jerry
Killingsworth, Peter Yueh and anyone else the Government contends
conspired with the Defendant, as well as the "Defendant's statement
of the offense" portion of the Pre-Sentence Investigation Reports
concerning Messrs. Rhodes, Killingsworth, and Yueh if quoted from
written submissions made by those Defendants to the United States
Probation Office.
As stated previously, the United States objects to defendant's request for co-
Page 5
conspirator statements, including defendant's request for the "Defendant's statement of the
offense" portion of their Pre-Sentence Investigation Reports ("PSI"), as being outside the
scope of Rule 16. PSIs are kept confidential "to ensure the free flow of information so that
a district court has as complete a set of facts as is possible for fashioning an appropriate
sentence . . . ." United States v. McKnight, 771 F.2d 388, 390 (8th Cir. 1985); United
States v. Martinello, 556 F.2d 1215 (5th Cir. 1977). Additionally, PSI reports are not
statements under the Jencks Act. United States v. Jackson, 978 F.2d 903, 909 (5th Cir.
1992).
Therefore, the United States will not produce PSI reports under Rule 16 or the
Jencks Act. The United States, however, will provide any exculpatory information,
including possible impeachment materials, contained within the PSI reports pursuant to its
obligations under Brady and its progeny. The defendant has provided no other legal basis
for disclosure of the PSI reports and, accordingly, his request should be denied.
v. Copies of all draft and final transcripts of any tape
recordings of the Defendant, or any tape recordings where the
Defendant's name is mentioned, or any tape recordings in which the
Government contends the Defendant's activities were discussed, as
well as the original tapes themselves.
The United States will provide to the defendant copies of tape recordings of the
defendant which are in the possession of the government, pursuant to Rule 16(a)(1)(A).
Defendant also requests the original tapes to determine if they were altered. See
Defendant's Motion For Production Of Original Tape Recordings For Analysis By
Defendant's Expert ("Motion For Original Tapes"). The United States will produce the
original tape recordings to the defendant after they have been examined by a government
Page 6
expert.
The United States objects to defendant's request for any tapes containing
statements other than those of the defendant as outside the scope of Rule 16. While
defendant states in his Memorandum of Law in Support of Defendant's Motion, ｶ 5(a)(v)
that such tapes are material, he mistates the facts and finding in United States v. Rojas,
502 F.2d 1042 (5th Cir. 1974). In Rojas, the government voluntarily produced to defendant
a tape recording of a law enforcement officer and a co-defendant. The court did not
comment on the rationale behind the government's production of the tape, nor imply that
the recording provided a contextual setting in which to view defendant's actions. The
defendant has provided no legal basis for requesting third-party statements contained on
any tape, and his request should be denied.
The United States also objects to defendant's request for all draft and final
transcripts of the tape recordings of defendant as being outside the scope of Rule 16. The
defendant's statements are contained on the tape recordings themselves. See, e.g.,
United States v. Bailey, 689 F.Supp. 1463 (N.D. Ill. 1987)(ruling that transcripts and drafts
only discoverable to impeach person preparing drafts and undermine accuracy of
transcripts); United States v. Crisona, 416 F.2d 107 (2nd Cir. 1969).
Defendant's reliance on United States v. Shields, 767 F.Supp. 163 (N.D. Ill. 1991),
to obtain Rule 16 discovery of tape transcripts is premature. In Shields, the court ruled that
drafts of transcripts should be turned over to the defense because the tapes were difficult
to understand and there were disputes as to the accuracy of final transcripts. Id. at 166.
The United States will satisfy its obligations under Rule 16 by producing the tape
Page 7
recordings themselves, as these constitute the defendant's statements. Any disputes
concerning the accurancy of any transcript prepared either by the government or defendant
can be resolved in a separate proceeding.
vi. Evidence of any consensually recorded telephone
calls which were not supervised by law enforcement authorities.
The United States is not aware of any recordings which were made without
supervision by law enforcement authorities.
vii. FBI policies, procedures, and guidelines effective
in June 1995 for consensual recordings made by confidential
informants, cooperating witnesses, or confidential sources.
The United States objects to defendant's request for FBI materials as outside the
scope of Rule 16. Furthermore, such materials "are neither exculpatory nor do they
contain material which could be used for impeachment purposes." United States v.
Johnson, 872 F.2d 612, 619 (5th Cir. 1989). Therefore, defendant's request should be
denied.
viii. Any and all documents written by or provided to
the Government by any confidential informant, cooperating witness,
or confidential source.
ix. Any document corroborating or not corroborating
information supplied by any confidential informant, cooperating
witness, or confidential source.
The United States objects to defendant's request as it falls outside the scope of
Rule 16, though if such evidence exists, it may be provided generally in the United States'
Rule 16 production under other requests. See response to Defendan'ts Motion, ｶ 5(a)(i-iii).
The United States will provide any exculpatory evidence contained in the requested
materials pursuant to Brady, and also comply with Jencks as to any informant, witness or
Page 8
source who testifies at trial.
x. FBI policies, procedures and guidelines effective
in 1994-1995 for using and handling confidential informants,
cooperating witnesses, and confidential sources.
The United States objects to defendant's request for FBI materials as outside the
scope of Rule 16. See Response to Defendant's Motion, ｶ 5(a)(vii). Therefore,
defendant's request should be denied.
xi. Any and all records of electronic eavesdropping,
wiretapping or other surveillance of communications to which the
Defendant was a part or which otherwise concerns the prosecution
of the Defendant in this case, including any and all documents,
transcripts or writings relating thereto, as well as any orders from
any Judge or Magistrate and any supporting affidavits thereto.
xii. Results of any polygraph, sodium pentothal or
similar "truth-finding" test of the Defendant or of any other person
which is relevant or material to this case.
xiii. Any and all arrest or search warrants, whether
executed or not, together with supporting affidavits, which were
obtained in connection with this case.
The United States is unaware of any such information or evidence.
xiv. Department of Justice personnel files for, and any
Office of Professional Responsibility files or other disciplinary files,
memos or documents regarding, Antitrust Division attorneys Mark
R. Rosman, Karen J. Sharp and Scott M. Garelick.
xv. Federal Bureau of Investigation personnel file for,
and any disciplinary files, memo or documents regarding, Special
Agent Frank I. Eldredge.
The United States objects to defendant's requests for personnel information
regarding government attorneys and agents as immaterial, irrelevant and outside the scope
of Rule 16. While the United States will provide impeachment materials commensurate
Page 9
with its obligations under United States v. Bagley, 473 U.S. 667 (1985), defendant's
requests under Rule 16 should be denied.
xvi. The names and addresses of all witnesses
interviewed or persons interrogated or questioned in connection
with the investigation or prosecution of this case.
The United States objects to defendant's request as outside the scope of Rule 16.
Defendant provides no legal support for this overbroad request. Defendant is seeking to
discover work product and grand jury information to which he is not entitled. Indeed, the
United States is unable to provide such information pursuant to Fed. R. Crim. P. 6(e),
which requires the government to protect from disclosure matters occurring before the
grand jury. Defendant's request, therefore, should be denied.
xvii. Copies of any and all federal forms executed by
any person permitting consensual recording of any telephonic
communications or personal communications, including, but not
limited to, any forms FD472 and 473.
The United States objects to defendant's request as such information is specifically
exempt from disclosure under Rule 16(a)(2), which provides, in pertinent part:
this rule does not authorize the discovery or inspection of
reports, memoranda, or other internal government
documents made by the attorney for the government or
other government agents in connection with the
investigation or prosecution of the case.
Fed. R. Crim. P. 16(a)(2).
b. Intended for use by the Government as evidence at the
trial; or
c. Obtained from or belonging to the Defendant,
specifically including handwriting exemplars provided
by the Defendant.
Page 10
The United States will provide such information pursuant to Rule 16(a)(1)(C).
6. Any results or reports of physical or mental
examinations or scientific tests or experiments made in connection
with this particular case which are within the possession, custody or
control of the Government, specifically including any handwriting
analysis done based on handwriting exemplars provided by the
Defendant.
The United States will meet its obligation under Rule 16(a)(1)(D) and provide this
information to defendant.
7. Any and all information about the Defendant's prior
criminal record, including, but not limited to, arrests, convictions,
periods of incarcerations and present probationary or parole status.
The United States will provide this information to defendant under Rule
16(a)(1)(B).
8. Any and all memoranda, correspondence,
communication, copies of press releases or writings of any kind
related to the Government's deliberate dissemination of information
concerning this case to the media in Birmingham, Alabama,
Houston, Texas, Green Bay, Wisconsin, Washington, D.C., or any
other city in which the Government has by conscious and deliberate
act formulated philosophies, instructions, or directions concerning
what information needed to be disseminated to the public
concerning this case and what policies, procedures, practices,
strategies or other matters are to be incorporated into disseminating
information or responding to requests for information.
The United States objects to defendant's request as immaterial, irrelevant and
outside the scope of Rule 16.
II. Brady, Giglio and Bagley Material:
9. Any and all evidence which is in the possession of or
known to the Department of Justice or the Federal Bureau of
Investigation which would negate the charges against the Defendant,
lead to a reasonable doubt about the Defendant's guilt, or which may
Page 11
otherwise tend to exculpate the Defendant or which is arguably
exculpatory in nature.
The United States is aware of its obligations under Brady and its progeny, and will
provide to defendant all Brady material in its possession.
"The holding in Brady v. Maryland requires disclosure only of evidence that is both
favorable to the accused and å§aterial either to guilt or punishment.'" United States v.
Bagley, 473 U.S. 667, 674 (1985)(citing Brady, 373 U.S. 83, 87 (1963)). The Supreme
Court has made clear, however, that Brady and its progeny constitute a rule of fairness and
minimum prosecutorial obligation, not a rule of discovery. See Weatherford v. Bursey, 429
U.S. 545, 559 (1977); See also United States v. Campagnuolo, 592 F.2d 852 (5th Cir.
1979). The prosecution has no duty under Brady to provide unlimited discovery, United
States v. Agurs, 427 U.S. 97, 106 (1976), nor is there a duty to deliver the entire
prosecution file to the defendant. Id. at 111. Likewise, the government is under no
obligation to "make a complete and detailed accounting to the defense of all . . .
investigating work on a case." Moore v. Illinois, 408 U.S. 786, 795 (1972).
Furthermore, the prosecution is not obligated to produce potential Brady material
when the evidence is already known to the defendant.
Brady does not oblige the government to provide the
defendants with evidence that they could obtain from other
sources by exercising reasonable diligence. When
evidence is available equally to the defense and the
prosecution, the defendants must bear the responsibility of
their failure to diligently seek its discovery.
United States v. McKenzie, 768 F.2d 602, 608 (5th Cir. 1985).
Page 12
With these principles in mind, the United States specifically responds to each of
defendant's requests.
The above request includes, but is not limited to, any of the
following evidence which is currently in the possession of or under
the custody or control of the Government:
a. Evidence of price competition in the January 1994-June
1995 period among Bay Industries, Inc., Mizell Bros.
Company, Hiplax International Corporation d/b/a Brite
Insulation Corporation and any other laminating
company which allegedly or assertedly conspired with
the Defendant.
b. Evidence provided by customers interviewed during this
investigation who have denied being deceived into
believing that the prices they paid for metal building
insulation were arrived at independently and without
consultation or agreement with competing suppliers.
As noted in response to Defendant's Motion, ｶ 5(a)(i-iii), the United States will permit
defendant to inspect and copy all Rule 16(a)(1)(C) material in the possession of the
government and within the scope of the charged offense. The United States, therefore,
necessarily will disclose to defendant anything constituting Brady evidence within these
files.
c. Evidence, including grand jury transcripts, that Bay
employees, including sales personnel supervised by the
Defendant, had no knowledge of the charged
conspiracies.
The United States objects to defendant's request as it is outside the requirements
of Brady and its progeny. "Information is not exculpatory merely because it is not
inculpatory." United States v. Jackson, 850 F.Supp. 1481, 1501 (D. Kan. 1994). Evidence
Page 13
that Bay employees, including those personnel supervised by defendant, had no
knowledge of the charged conspiracies is not exculpatory. United States v. Montgomery,
990 F.2d 266, 271 (7th Cir. 1993)(finding that statements of co-conspirators who denied
knowing that defendant carried a gun were not exculpatory when those co-conspirators
were not present at the time when other witnesses saw defendant carrying gun).
Additionally, evidence is only material if it is admissible at trial. Brady, 373 U.S. at
89-90. Defendant supervised numerous Bay sales employees who sold insulation outside
the geographical area of the charged conspiracy. The knowledge of Bay sales personnel
operating outside the Texas market is irrelevant to the proof to be adduced at trial showing
that defendant conspired to fix the price of metal building insulation sold from facilities in
Texas.
By seeking grand jury transcripts of Bay employees, defendant is attempting to use
Brady as a discovery mechanism. Defendant's reliance on Campagnuolo to skirt Brady
is misplaced: there, the court merely noted that while Brady might require disclosure of
exculpatory evidence prior to the time mandated by Jencks, the defendant was not
prejudiced when the government turned over a grand jury transcript containing exculpatory
evidence on the eve of trial. Campagnuolo, 592 F.2d at 859-60. The defendant was not
prejudiced, in part, because he already knew that the witness in question was a potential
exculpatory witness, Id. at 860, and the prosecution is "not obliged under Brady to furnish
a defendant with information which he already has or, with any reasonable diligence, he
can obtain himself." Id. at 861 (quoting United States v. Prior, 546 F.2d 1254, 1259 (5th
Cir. 1977)).
Page 14
It is apparent that defendant possesses information as to the Bay employees
mentioned in this request. See Defendant's Motion to Dismiss Indictment For Prosecutorial
Misconduct in Grand Jury Proceedings ("Motion to Dismiss") and accompanying affidavits
(wherein five of seven Bay employees deny knowledge of alleged conspiracies involving
defendant). While none of these five transcripts contains Brady evidence, as none
contains any information relevant to the charged conspiracy, the United States will disclose
any exculpatory statements contained in other grand jury transcripts that are material and
relevant to the charged offense, pursuant to Brady and its progeny.
d. Evidence that the Defendant lacked knowledge of any
overt acts to be proven at trial by the Government.
The United States is unaware of any such evidence. Moreover, there is no legal
requirement that defendant have knowledge of all overt acts committed by co-conspirators
in furtherance of the conspiracy. United States v. Basey, 816 F.2d 980, 997-99 (5th Cir.
1987). Therefore, the United States objects to defendant's request as irrelevant.
e. Evidence that the Defendant lacked the required criminal
intent, specifically including all documentation of Trial
Attorney Mark Rosman's offer of immunity from
prosecution to the Defendant on June 21, 1995, and the
Defendant's rejection of this offer.
As stated in response to Defendant's Motion, ｶ 1(c), the United States will provide
to defendant the substance of any oral statement made by defendant to any person then
known by him to be a government agent, including any statements made to government
attorney Mark Rosman, pursuant to Rule 16. This information, however, is obviously
known to defendant and is, therefore, outside the requirements of Brady. The United
States objects to the defendant's request to provide internal government documentation
Page 15
as outside the requirements of Brady and protected by work product. See, e.g., United
States v. Koskerides, 877 F.2d 1129, 1133-34 (2d Cir. 1989)(ruling that Rule 16(a)(2)
specifically exempts disclosure of internal government documents, recognizing "the
prosecution's need for protecting communications concerning legitimate trial
tactics")(quoting United States v. Pfingst, 490 F.2d 262, 275 n.14 (2d Cir. 1973).
f. Evidence of statements of any Government witness which
are inconsistent with prior statements made by those
witnesses, specifically including notes of meetings with
witnesses Wally Rhodes, Janne Smith, Jerry Killingsworth
and Peter Yueh that contain inconsistent statements made
by those witnesses.
g. Statements of witnesses which conflict with statements
of other witnesses concerning this case.
h. Evidence which impeaches the credibility or testimony
of any Government witness.
I. Evidence regarding a Government witness' motives in
testifying for the Government or against the Defendant.
j. Evidence regarding any prejudices or hostility felt by any
Government witnesses against the Defendant.
The United States will provide to defendant any such evidence pursuant to its
obligations under Brady and progeny.
k. Any promise or indication to any Government witness
of immunity from prosecution, leniency in disposition,
or recommendations of specific sentences concerning
actual or alleged crimes, whether related to this case or
to other cases, specifically including all
correspondence, including draft plea agreements,
regarding the plea agreements of Wally Rhodes, Jerry
Killingsworth, Peter Yueh, and Hiplax International
Page 16
Corporation d/b/a Brite Insulation Corporation.
The United States will provide any such material to defendant that is exculpatory
and material pursuant to Brady and its progeny. The United States, however, objects to
defendant's request for internal prosecution files as irrelevant, immaterial and non-
discoverable work product. See United States v. Jackson, 850 F.Supp. 1481, 1506 (D.
Kan. 1994)(denying defendant's request for drafts of plea agreements pursuant to Rule
16(a)(2) as the "request appears to be a fishing expedition since the defendant's have [the]
plea agreement . . .").
l. Threats of, or statements regarding, possible prosecution
of any Government witness or member of a Government
witness' family.
m. Statements made to or by any Government witness,
specifically including Janne Smith, to the effect that the
witness' cooperation was limited, that the witness'
cooperation would be kept confidential, or that the witness
would not have to testify at trial.
The United States denies that any such threats or statements were made.
n. Criminal records of any Government witness which list
(1) convictions for felonies and (2) convictions for
misdemeanors involving false statement or dishonesty.
The Unites States will produce to defendant such information consistent with its
obligations under Brady and its progeny.
o. Any exculpatory or impeachment evidence contained in
the presentence investigation reports for Government witnesses
Wally Rhodes, Jerry Killingsworth, and Peter Yueh.
To the extent that any such evidence exists in these reports, the United States will
produce to defendant such information consistent with its obligations under Brady and its
Page 17
progeny.
p. Evidence concerning pending indictments, criminal
charges or criminal investigations against or involving any
Government witness.
q. Evidence regarding any defects in the mental, intellectual,
retentive or sensory capacity or ability of any Government
witness.
r. The results of any scientific, physical or medical tests
which may exculpate the Defendant or reflect adversely
on the credibility or testimony of any Government
witness.
The United States is unaware of any such evidence, but will continue to comply with
its obliations under Brady and its progeny.
s. The questions asked, answers provided and interpretive
results of any polygraph, sodium pentothal or other
similar "truth-finding" tests or examinations
administered to any witness during the Government's
investigation or preparation of this case.
No such examinations or tests were performed by the United States during the
investigation or preparation of this case.
t. A handwritten memo written by Ron Travathan to Jim
Denton of PBI describing a telephone conversation between
Travathan and the Defendant that occurred around November 19,
1993 in which the Defendant described price competition among
Bay, PBI, Brite and Mizell Bros. and characterized Brite and Mizell as
low-life laminators.
The United States will produce this memorandum with its Rule 16 production
described in response to Defendant's Motion, ｶ 5(a)(i-iii).
III. Jencks Material:
Page 18
9. In the interests of judicial economy, all statements of
Government witnesses required to be produced under 18 U.S.C. ｧ
1500 are requested to be produced at least two weeks prior to the
start of the trial.
The Jencks Act, 18 U.S.C. ｧ 3500, specifically defines the time at which the
government must disclose any statement of a prospective government witness. In relevant
part, the Jencks Act states:
In any criminal prosecution brought by the United States, no
statement or report in the possession of the United States
which was made by a government witness or prospective
government witness (other than the defendant) shall be the
subject of subpoena, discovery, or inspection until said
witness has testified on direct examination in the trial of the
case.
18 U.S.C. ｧ 3500(a).
Courts generally cannot require "disclosure of a witness's statement until after that
witness has testified." United States v. Lowenberg, 853 F.2d 295, 300 (5th Cir.
1988)(emphasis in original). Accord United States v. Welch, 810 F.2d 485, 489 n.2 (5th
Cir. 1987) (Fifth Circuit has previously "ruled that a pretrial discovery order was invalid to
the extent that it allowed discovery beyond the limitations of the Jencks Act . . . We are
unaware of any authorizing the district court to amend this mandate"); United States v.
McKenzie, 768 F.2d 602, 609 (5th Cir. 1985), (trial court cannot compel disclosure of
Jencks material at any earlier point than after the witness testifies). While the United
States believes that defendant's request is not supported by the Jencks Act or legal
authority, the United States will disclose to the defendant all Jencks Act statements three
days before trial.
PRODUCTION AND DISCLOSURE
I. Rule 16 Material:
1. Pursuant to Rule 16(a)(1)(A), statements made by the
Defendant to any third party who then made a statement to the
Government in which any of the Defendant's remarks were repeated
or reported and included in the third party's statement.
The United States objects to defendant's request as outside the scope of Rule 16.
Statements made by a third party to the government, and containing statements allegedly
made by the defendant, are not the defendant's statements under Rule 16. United States
v. Cole, 857 F.2d 971, 975-76 (4th Cir. 1988); United States v. Walk, 533 F.2d 417, 418-19
(9th Cir. 1975); United States v. Williams, 113 F.R.D. 177, 180-81 (M.D. Fla. 1986). The
United States will produce to defendant any such statements as to testifying witnesses
commensurate with its obligations under the Jencks Act.
II. Brady, Giglio, and Bagley Material:
1. All documents or information (in whatever form)
indicating or tending to establish that the Defendant did not
participate in an agreement, understanding and concert of action the
substantial term of which was to raise, fix and maintain prices of
metal building insulation sold from facilities in the State of Texas, as
alleged in ｶ 5 of Count one;
2. All documents or information (in whatever form)
indicating or tending to establish that the Defendant did not discuss
prices to be charged for metal building insulation sold from facilities
in the State of Texas, as alleged in ｶ 6(a) of Count One;
3. All documents or information (in whatever form)
indicating or tending to establish that the Defendant did not agree to
raise, fix and maintain prices for metal building insulation sold from
facilities in the State of Texas, as alleged in ｶ 6(b) of Count One and
ｶ 4 of Count Two;
Page 20
4. All documents or information (in whatever form)
indicating or tending to establish that the Defendant did not raise, fix
and maintain prices for metal building insulation sold from facilities
in the State of Texas, as alleged in ｶ 6(c) of Count One;
5. All documents or information (in whatever form)
indicating or tending to establish that the Defendant did not monitor
and enforce compliance with the agreement to raise, fix and maintain
prices for metal building insulation sold from facilities in the State of
Texas, as alleged in ｶ 6(d) of Count One;
6. All documents or information (in whatever form)
indicating or tending to establish that the Defendant did not conspire
to commit wire fraud, as alleged in ｶ 3 of Count Two;
7. All documents or information (in whatever form)
indicating or tending to establish that the Defendant did not act
willfully for the purpose of executing and carrying out a scheme and
artifice to defraud customers of money by means of false and
fraudulent pretenses, as alleged in ｶ 3 of Count Two
8. All documents or information (in whatever form)
indicating or tending to establish that the Defendant did not deceive
customers into believing that the prices they were charged for metal
building insulation were arrived at independently and without
consultation or agreement with competing suppliers, as alleged in
ｶ 5 of Count Two.
The United States is unaware of any such information or evidence, but will continue
to comply with obligations under Brady and its progeny, and will produce any such
information should it come into the possession of the government.
9. All documents or information (in whatever form)
indicating or tending to establish that the prices charged to
customers were not noncompetitive and had not been arrived at as
a result of a conspiratorial agreement, as alleged in ｶ 5 of Count
Two;
The United States will produce to defendant all pricing information that is relevant
and within the scope of the indictment, pursuant to Rule 16. To the extent that any such
Page 21
Brady evidence exists, it will be contained within the Rule 16 production.
10. All documents or information (in whatever form)
indicating or tending to establish that the Defendant had telephone
conversations in January 1994 with an alleged co-conspirator in
Atlanta and Stone Mountain for purposes other than entering into an
agreement to raise, fix and maintain prices of metal building
insulation, as alleged in ｶ 6(a) of Count Two;
11. All documents or information (in whatever form)
indicating or tending to establish that the Defendant had telephone
conversations in February 1994 with an alleged co-conspirator in
Kansas City, Missouri and with a Bay employee in Houston, Texas
for purposes other than monitoring and enforcing an agreement to
raise, fix and maintain prices of metal building insulation, as alleged
in ｶ 6(b) of Count Two;
12. All documents or information (in whatever form)
indicating or tending to establish that the Defendant sent a fax and
had a telephone conversation with an alleged co-conspirator in
Dallas, Texas in April 1994 for purposes other than executing and
carrying out an agreement to raise, fix and maintain prices of metal
building insulation, as alleged in ｶ 6(c) of Count Two;
13. All documents or information (in whatever form)
indicating or tending to establish that the Defendant received a faxed
draft price sheet from and had telephone conversations with an
alleged co-conspirator in May 1994 for purposes other than
executing and carrying out an agreement to raise, fix and maintain
prices of metal building insulation, as alleged in ｶ 6(d) of Count Two;
14. All documents or information (in whatever form)
indicating or tending to establish that the Defendant faxed a Bay
price sheet to and had telephone conversations with a co-
conspirator in Atlanta, Georgia in May 1994 for purposes other than
executing and carrying out an agreement to raise, fix and maintain
prices of metal building insulation, as alleged in ｶ 6(e) of Count Two;
15. All documents or information (in whatever form)
indicating or tending to establish that the Defendant faxed a Bay
price sheet to and had a telephone conversation with a co-
conspirator in Atlanta, Georgia in November 1994 for purposes other
than executing and carrying out an agreement to raise, fix and
Page 22
maintain prices of metal building insulation, as alleged in ｶ 6(f) of
Count Two;
16. All documents or information (in whatever form)
indicating or tending to establish that the Defendant had interstate
telephone conversations regarding panel insulation pricing in
February and March 1995 with a co-conspirator for purposes other
than executing and carrying out an agreement to raise, fix and
maintain prices of metal building insulation, as alleged in ｶ 6(g) of
Count Two;
The United States objects to defendant's request as irrelevant. The fact that
defendant may have had communications with co-conspirators in addition to the overt acts
charged in the Indictment is in no way exculpatory or relevant.
17. All documents or information (in whatever form)
indicating or tending to establish the absence of any words of
agreement to conspire by the Defendant or any co-conspirators;
The United States does not understand the language "absence of any words of
agreement," but will answer defendant's request should he provide a clearer request.
18. All documents or information (in whatever form)
indicating or tending to establish acts by the Defendant inconsistent
with the alleged concerted behavior;
19. All documents or information (in whatever form)
indicating or tending to establish the absence of a single agreement
among the Defendant and all his alleged co-conspirators;
The United States is unaware of any such information or evidence, but will continue
to comply with obligations under Brady and its progeny, and will produce any such
information should it come into the possession of the government.
20. All documents or information (in whatever form)
indicating or tending to establish that the Defendant or Bay
Industries, Inc. engaged in price competition during the span of the
conspiracies alleged in Counts One and Two;
Page 23
21. All documents or information (in whatever form)
indicating or tending to establish that the prices for metal building
insulation contained in Bay's price lists during the time period of the
conspiracies alleged in Counts One and Two were the product of
independent action and were not the product of the alleged
conspiracies.
22. All documents or information (in whatever form)
indicating or tending to establish that the prices for metal building
insulation actually charged by Bay Industries, Inc. during the time
period of the conspiracies alleged in Counts One and Two were the
product of independent action and were not the product of the
alleged conspiracies.
The United States is unaware of any such information or evidence, but will continue
to comply with obligations under Brady and its progeny, and will produce any such
information should it come into the possession of the government.
23. All documents or information bearing adversely on the
character or reputation of any intended Government witness,
including all evidence of community reputation for lack of
truthfulness; and
24. All documents or information relating to each specific
instance of conduct from which it could be inferred that any intended
Government witness was untruthful.
25. All documents or information, specifically including
grand jury testimony, containing statements by witnesses
derogating the truthfulness of any intended Government witness.
The United States will provide to defendant any such evidence in its possession,
commensurate with its obligations under Brady and its progeny.
26. All documents or information concerning statements
made by any Government agent or prosecutor to intended
Government witnesses, specifically including Janne Smith,
concerning restrictions or limits, including suggested restrictions or
limits, on those witnesses' ability to talk to defense counsel, Bay
Industries officials, or counsel for Bay Industries.
Page 24
The United States denies that any such statements were made.
27. All documents or information, including grand jury
testimony, concerning Trial Attorney Mark Rosman's offer of
immunity from prosecution to the Defendant on June 21, 1995 and
the Defendant's rejection of this offer, specifically including:
a. what statements Mr. Rosman and/or Ms. Karen Sharp
made to Mr. Maloof at the beginning of this conversation regarding
their identity, role and position;
b. what statements Mr. Rosman and/or Ms. Karen Sharp
made to Mr. Maloof concerning the evidence against Mr. Maloof and
Mr. Maloof's culpability;
c. what statements Mr. Rosman and/or Ms. Karen Sharp
made to Mr. Maloof concerning their office's offer of immunity from
prosecution to Mr. Maloof; and
d. all statements made by Mr. Maloof.
The United States will provide to defendant any such evidence in its possession,
commensurate with its obligations under Brady, Rule 16, and the Jencks Act. To the
extent that defendant has knowledge of such information, however, the United States is
not obligated further to provide evidence pursuant to Brady and its progeny.
Page 25
CONCLUSION
The United States is aware of its obligations and understands the rules and cases
governing criminal discovery and will provide defendant with all discovery, as well as Brady
and Jencks Act material, to which he is entitled. Insofar as Defendant's Motion requests
information not authorized by Rule 16, Brady or the Jencks Act, his motion should be
denied.
Respectfully submitted,
/s/
MARK R. ROSMAN
Attorney-in-Charge
Florida State Bar No. 0964387
U.S. Department of Justice
Antitrust Division
1601 Elm Street, Suite 4950
Dallas, Texas 75201-4717
(214) 880-9401
Page 26
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the United States' Response to
Defendant's Motion for Production and Disclosure and Defendant's Supplemental Motion
for Production and Disclosure was sent via Federal Express this day of June, 1997, to:
J. Mark White, Esq.
White, Dunn & Booker
1200 First Alabama Bank Building
Birmingham, AL 32503
Albert C. Bowen, Esq.
Beddow, Erben & Bowen, P.A.
Second Floor - 2019 Building
2019 3rd Avenue, North
Birmingham, AL 35203
/s/
MARK R. ROSMAN
Attorney-in-Charge
Florida State Bar No. 0964387
U.S. Department of Justice
Antitrust Division
1601 Elm Street, Suite 4950
Dallas, Texas 75201-4717
(214) 880-9401
.
Page 27
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
| |
UNITED STATES OF AMERICA |
) |
Criminal No.: H-97-93 |
| |
|
) |
|
| |
v. |
) |
Violations: |
| |
|
) |
|
| |
MARK ALBERT MALOOF, |
) |
15 U.S.C. ｧ1 |
| |
|
) |
18 U.S.C. ｧ 371 |
| |
Defendant. |
) |
|
ORDER
Before the Court is Defendant's Motion for Production and Disclosure and
Defendant's Supplemental Motion for Production and Disclosure. The government having
acknowledged its continuing responsibility to provide defendant with access to all Rule 16
and Brady materials,
IT IS HEREBY ORDERED that Defendant's Motions are hereby DENIED.
DONE AND ENTERED THIS day of , 1997.
United States District Judge
.
|
U.S. Department
of Justice
