United States District Court, N.D. California
TRIAL ORDER NO. 8 DENYING ANDREW CERVANTES’S
MOTION TO STRIKE OCAMPO TESTIMONY FOR VIOLATION OF JENCKS
ACT RE: DKT. NO. 1294
GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE
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:
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. Having discussed the topic in the fall
of 2015, the Court approved the protocol orally but no
written order issued.
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.
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.
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.
Recordings of Debriefings with BOP Officers
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 ...