This matter was on calendar on August 10 and 12, 2009, for hearings on defendant's motion to compel the production of the probation officer's "chrono logs." Lauren Cusick, Assistant Federal Defender, appeared for defendant; Ellen Endrizzi, Assistant United States Attorney, appeared for the government.
Defendant is on supervised release after serving a sentence for bank fraud; supervision was transferred to this district from the Western District of Pennsylvania. Docket No. 10-2 at 3, 7-10. Condition Four of the conditions of supervised release provides:
Defendant shall make periodic payments of at least ten percent (10%) of her gross monthly income toward the outstanding balance of restitution unless the probation office demonstrates to the court that the payment of a lesser amount is warranted under the circumstances. Payments shall commence within 30 days of defendant's release from the custody of the Bureau of Prisons.
On March 17, 2009, defendant's probation officer submitted a petition asking the court to put the matter on calendar because of defendant's failure to make restitution payments after she secured employment. Docket No. 3 at 2-3. The probation officer summarized the evidence supporting the allegation, which included defendant's monthly supervision reports and payroll records showing defendant's gross income, and noted that he would testify about his interactions with defendant concerning her obligation to make restitution payments. Docket No. 3 at 6-7.
Before the hearing on the petition, the government gave notice that it intended to present defendant's payroll information and the record of payments against defendant's restitution obligation and to call defendant's probation officer John Poglinco as a witness. Docket No. 10.
Defendant filed her own memo in anticipation of hearing, which included her "initial motion" for the government to produce Poglinco's statements from defendant's probation file in compliance with Federal Rule of Criminal Procedure 26.2(a). Counsel noted that Poglinco had informed her he would object to disclosing anything from his file that had not previously been produced. Docket No. 11 at 2. The government also objected, arguing that it did not have any materials from the probation file that had not also been provided to the defense. Docket No. 14 at 3.
The case came on for hearing before the Honorable Garland E. Burrell on July 10, 2009. Before Officer Poglinco testified, defendant moved for production of her statements contained in the probation file. Docket No. 21-2 at 4*fn1 (transcript of proceedings). The court declined to reach the request. Id. at 5. Defendant renewed the motion after Poglinco's testimony on direct examination but the court suggested she first question Poglinco about the statements. Id. at 24, 33. Poglinco then testified that he keeps chronological records or chrono notes of his contacts with defendant as well as third parties. Id. at 34-35. He relied on these chrono notes among other things to refresh his recollection as he prepared the petition in this case. Id. at 35-36. Poglinco has not given these chrono notes to the government. Id. at 36.
After further discussion, the parties agreed to place the matter on the criminal duty calendar for resolution. As part of its opposition, the government has filed the declaration of John Poglinco, who avers he has not provided the probation file or his chronology to counsel for the government nor made it available for her inspection. Docket No. 21-3 at 2 ¶ 5. He adds:
It is the policy of the United States Probation Office for the Eastern District of California to maintain probation files and their contents, including notes, as confidential. The documents contained in a probation file are not released unless they constitute direct evidence of a violation or are ordered released by a court of competent jurisdiction.
Defendant argues that the chrono notes are "statements" that must be produced following Officer Poglinco's testimony within the meaning and under the authority of Criminal Rules 26.2(a), (f)(1) & g(3) and 32.1(e). To counter the government's argument that she did not comply with the procedure for obtaining records from the judiciary, defendant argues that Rule 26.2 trumps any such procedure. The government argues that if the rule takes precedence, defendant's request still fails because Poglinco's statements are not in the government's actual or ...