US v. Savage, No. 16-4704 (4th Cir., filed 3/12/18): Interplay of Jencks Act and Brady Material Showings and When District Court Must Hold In Camera Hearing
Trial counsel needs to lay a foundation or make ‘plausible showing’ before Court will gig federal district court for not holding in camera review of government materials.
This is a fairly lengthy opinion, but there’s one part of it that I want to focus on, which is the showing that counsel must make in order to compel a district court judge to review potential exculpatory or impeaching materials in the Government’s possession.
As to the crime itself, it was rather banal. Savage, along with others, enlisted a bank teller to access customer account information. Savage and these others then accessed those accounts and, through various means, took money from them. The bank teller, Conteh, was eventually arrested and prosecuted for these crimes. She cooperated with law enforcement and met with them 4 times prior to her conviction. During that time, Savage spoke to her, gave her money for a lawyer and sent her text messages. She went to prison. After that, Savage met with Conteh’s family. They video recorded the meeting and, lo and behold, Savage confessed to his role in the scheme on that tape. Law enforcement then indicted him. Conteh and the Government then entered into an agreement where she would cooperate in exchange for a reduced sentence pursuant to a 35(b) motion. In anticipation of her testimony, the Government provided defense counsel with required disclosures containing potential impeachment evidence that summarized inconsistent statements Conteh made during various debriefings.
On the first day of trial, trial counsel filed a motion to compel materials related to Conteh under either the Jencks Act, 18 U.S.C. 3500(b), or Brady v. Maryland, 373 U.S. 83 (1963). The court dismissed the motion as moot after finding out that only the government attorney’s personal notes existed. This became one of the issues on appeal– that the district court erred by not conducting an in camera review to determine if the material gathered by the government in its meeting with Conteh, contained in these notes, was subject to disclosure under either the Jencks Act or Brady.
So, what’s the difference? Under the Jencks Act, on motion by the defendant, the government is required to produce any “statement” of the witness related to the witness’s testimony that is in the government’s possession. Pursuant to Brady, it violates due process for the government to suppress evidence that is material and favorable to a defendant.
A defendant must provide some foundation for his Jencks Act request before the district court is required to make an in camera inspection. United States v. Boyd, 53 F.3d 631 (4th Cir. 1995). “Such a foundation, typically established through cross examination of the witness whose statement the defendant is attempting to obtain, requires the defendant to specify with reasonable particularity that material which may be a Jencks Act statement exists.” Id. at 634.
Conversely, before a court must conduct an in camera review to determine if there’s a Brady violation, “a defendant must make a ‘plausible showing’ that the Government’s files contain information that ‘would be both material and favorable to the defense.'” United States v. Colton, 38 F. App’x 119, 124 (4th Cir. 2002) (quoting Love v. Johnson, 57 F.3d 1305, 1313 (4th Cir. 1995). “[M]ere speculation that the information may be helpful is insufficient to justify an in camera review.” United States v. Gilchrist, 119 F. App’x 485, 491 (4th Cir. 2005) (citation omitted). Again, the defendant has to identify the material with some degree of specificity. Id.
So, an in camera review is only required under the Jencks Act if the defendant provides a proper foundation for the request, and is only required under Brady if the defendant makes a plausible showing that the files contain evidence that is material and favorable to the defense.
Here, the Court found that the district court judge did not abuse his discretion by not conducting an in camera review of the materials. Trial counsel did not argue that a Jencks Act statement existed or that the defense was entitled to review the prosecutor’s personal notes. Nor did he question Conteh on cross-examination about whether she reviewed those notes or adopted any statements contained within them. Also, Savage did not make any representation that the notes include a “substantially verbatim recital” of Conteh’s statements. Also, he did not argue that any inconsistent statements actually exist; only that they might exist. As to the Brady prong, trial counsel failed to make any plausible showing that the files contained evidence that was material and favorable to the defense. According to the Court, counsel’s mere arguments were not sufficient to warrant a district court’s in camera review of the materials.
The take-away here is, I think, that the Courts want to hear counsel make real, substantive arguments as to the existence of these materials before they gig a federal judge for not holding an in camera review of the government’s material. It’s not going to be sufficient for counsel to simply stand up and argue, on the day of trial, that he or she is entitled to all of this stuff without at least some showing that it actually exists. And really, if counsel really believed it exists, then why not bring it up to the Court before the start of trial? I get the sense that the Court doesn’t approve of this kind of last-minute maneuvering by trial counsel when really, these sorts of issues probably should have been resolved prior to trial.