United States v. Cervantes

          TRIAL ORDER NO. 8 DENYING ANDREW CERVANTES’S MOTION TO STRIKE OCAMPO TESTIMONY FOR VIOLATION OF JENCKS ACT RE: DKT. NO. 1294

          YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE

         Currently before the Court is defendant Andrew Cervantes’s (“A. Cervantes”) motion to strike the testimony of witness Bismark Ocampo as a sanction for the government’s alleged violation of the Jencks Act, 18 U.S.C. section 3500. (Dkt. No. 1294, “Mtn.”) A. Cervantes argues that the government violated the Jencks Act by failing to disclose thirty days before trial recordings of Ocampo’s (a) debriefings with Bureau of Prisons (“BOP”) officers and (b) prison telephone calls in the custody of BOP. The government opposes, arguing there was no violation of the Jencks Act here, eliminating any bases for the requested sanction. The Court having carefully considered the papers submitted, the record in this case, and oral arguments held June 21 and 22, 2016, hereby Denies A. Cervantes’s motion and Orders as follows:

         I. Background

         The Jencks Act requires the Court, on motion of a defendant, to order the government to disclose the prior statement of a witness in its possession relating to the subject matter of a witness’s testimony. See 18 U.S.C. § 3500. This requirement is not triggered until after the witness’s direct examination testimony at trial, and is limited to statements that “relate[] to the subject matter as to which the witness has testified.” Id. Notwithstanding the plain language of the statute, A. Cervantes argues that the Court ordered Jencks Act productions thirty days before trial. In this District, the government, with the Court’s assistance, routinely attempts to provide the defense with Jencks materials sooner than required by the Jencks Act. As such, the Court facilitated the parties’ discussion with respect to an early disclosure to address, and alleviate, the potential for short continuances during trial. Through this process, the government agreed to disclose to the defense what it deemed to be Jencks material approximately thirty days before trial. (See, e.g., 11/13/2015 Transcript at 62:6-9, Mr. Alioto Stating that “[m]ost of the Jencks material will be disclosed 30 days before trial.”) As divulged by the government, exceptions would exist, namely those required for witness safety reasons.^[1] Having discussed the topic in the fall of 2015, the Court approved the protocol orally but no written order issued.

         With respect to the witness at issue, for security reasons, the government did not provide Jencks material on Ocampo until trial was underway. Although the government agreed only to provide Jencks for protected witnesses twenty-four hours prior to trial, the government did so for Ocampo on May 18, 2016, a full week prior to the witness’s direct examination which commenced on May 25, 2016. Cross examination of Ocampo followed on May 26, 2016.

         II. Discussion

         As an initial matter, the Court rejects the allegation that the production should have occurred thirty days before trial. No such requirement is statutorily mandated, nor did the Court issue such an order. Counsel’s representation of the record was not accurate. Counsel is cautioned against further attacking cooperative protocols which are not only valued in this District but which inure to defendant’s own benefit and to the benefit of defendants generally.

         Next, A. Cervantes argues that two categories of statements in the government’s possession should have been disclosed to the defense as relevant to Ocampo’s testimony under the Jencks Act, namely recordings of Ocampo’s: (A) debriefings with officers of the BOP; and (B) telephone calls made from prison and maintained in the ordinary course by the BOP. The Court addresses each set of recordings in turn.

         A. Recordings of Debriefings with BOP Officers

         As a threshold matter, the Court is not convinced that any interviews of Ocampo with the BOP officers were recorded. Thus: under cross examination by counsel for A. Cervantes, Ocampo did testify that in the meetings with BOP officers, they were “taking notes or had a little recorder sometimes.” However, he then appeared to retract immediately. (5/26/2016 Transcript at 3698:10.) The entirety of the examination upon which this motion is brought concerns four questions and answers:

Q: DID THEY TAKE NOTES ABOUT WHAT YOU WERE SAYING?

A: TAKING NOTES OR HAD A LITTLE RECORDER SOMETIMES.

Q: THEY RECORDED SOME OF THE ...