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United States v. Dent

United States District Court, C.D. California, Southern Division

March 15, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DARRELL CEDRIC DENT, et al., Defendants.

          ORDER DENYING DEFENDANTS' MOTION TO PROVIDE DISCOVERY (TO VACATE PROTECTIVE ORDERS)

          CORMAC J. CARNEY UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Defendants Keith Marvel Walton, Robert Wesley Johnson, Justin Marques Henning, Jameson LaForest, Jeremy Tillett, Michael Germeille, Darrell Cedric Dent, Evan Kwan Scott, Kenneth Paul, and Marshawn Marshall are charged with various violations of 18 U.S.C. § 1951(a) (conspiracy to interfere with commerce by robbery and interference with commerce by robbery) and 18 U.S.C. § 924(c) (discharging and brandishing firearms in furtherance of crimes of violence) in connection with a series of “smash-and-grab” style robberies of jewelry stores in the Central District of California. (See generally Dkt. 248 (Second Superseding Indictment, hereinafter “SSI”).) Before the Court is Defendant Walton's motion to vacate existing protective orders concerning discovery, styled as a “motion to provide discovery.” (Dkt. 360 [Motion, hereinafter “Mot.”].) Defendants Tillett, Johnson, Henning, LaForest, and Germeille join the motion.[1] (Dkts. 361, 364, 377, 390, 395.) For the following reasons, the motion is DENIED.

         II. BACKGROUND

         On November 16, 2016, the government filed the SSI in this case, bringing thirteen counts under 18 U.S.C. § 1951(a) and 18 U.S.C. § 924(c) in connection with Defendants' alleged conspiracy to perpetrate a series of jewelry store and watch boutique robberies. (See generally SSI.) According to the SSI, various members of the conspiracy would identify a store to be robbed, recruit co-conspirators to perform the robbery (“including by promising large sums of money to young men who were financially desperate”), surveil the store, provide equipment and disguises, arrange for transportation to and from the store, and assign roles to each participant, which often involved using firearms and smashing glass display cases containing valuables. (Id. at 3-5.) Defendants allegedly have significant ties, or are members of, the Inglewood Family Gangster Bloods gang (the “Inglewood Family”). (Dkt. 412 at 3-6.)

         Between July 2016 and January 2017, the government and various Defendants in this case entered into a series of identical stipulations requesting that the Court issue protective orders concerning discovery related to cooperating witnesses, (Dkts. 103, 122, 294, 389), which the Court granted, (Dkts. 104, 126, 300, 394 [hereinafter the “Protective Orders”]). The Protective Orders place restrictions on the dissemination and disclosure of documents that “contain the identity, individually identifiable information, or the statements of cooperating witnesses, including the reports of investigation documenting interviews with cooperating witnesses, recordings of interviews of cooperating witnesses, documents concerning efforts to ensure the safety of cooperating witnesses and cooperating witnesses' families, plea agreements of cooperating witnesses, and related documents” (hereinafter “Protected Information”). (See, e.g., Dkt. 104 ¶ 1.) Under the Protective Orders, Defendants may review such Protected Information in the presence of their counsel (or a designated representative), but may not possess copies of such documents on their own. (Id. ¶ 4.) According to the government, this was part of a compromise to provide Defendants and their counsel with cooperating witness discovery “long before the government was obligated to produce it.” (Dkt. 408 [Opposition, hereinafter “Opp.”] at 4.)

         Walton's prior counsel agreed to the stipulation concerning the Protective Orders. However, months later at a pre-trial conference held on December 19, 2016, Walton claimed that he did not have adequate access to all discovery. Walton's new counsel claims that “Mr. Walton denies having given his previous counsel approval or authorization to sign the Stipulation on his behalf. On the contrary, Mr. Walton specifically objected to the Stipulation.” (Mot. at 1 n.1.) This objection was not brought to the Court's attention, however, [2] and the other Defendants never contended that they did not agree to their stipulations. (See Dkts. 361, 364, 377, 390, 395.) At the December 19 pre-trial conference, the Court advised the parties to meet and confer to try to resolve Walton's concerns, but they were unable to do so.

         After the Protective Orders were entered, the government produced nearly 60, 000 pages of discovery and fifty-five gigabytes of video recordings. (Mot. at 5; Opp. at 5-6.) In his motion, Walton states that approximately 11, 676 pages of that discovery are subject to the Protective Orders. (Mot. at 5.) However, as a result of the December 19, 2016, pre-trial conference, the government “devoted considerable resources to conducting a detailed review of each and every page of protected information in an effort to reduce the volume of restricted discovery.” (Opp. at 8.) After Walton filed the present motion, the government de-designated most of the documents previously classified as Protected Information-now only approximately 1, 100 pages are covered by the Protective Orders. (Id. at 9.) These remaining documents consist of roughly “114 unique pages of interview and proffer statements of cooperating witnesses; 569 pages of plea agreements and plea agreement-related materials (such as change of plea transcripts and correspondence, and proffer agreements); and roughly 140 pages of cooperator statements set forth in various court filings, including search warrant application, historical cell site applications, and similar documents.” (Id. at 10.) The government maintains that some of the de-designated documents still fall within the scope of the Protective Orders, but explains that it chose to de-designate them in order to keep only the “bare minimum” of documents protected. (Id. at 8.) Walton, however, insists that the Protective Orders do not allow him and his counsel to adequately prepare their defense because they prevent Walton from fully processing critical information. (Mot. at 6.)

         Even after the government de-designated the majority of Protected Information, the parties were unable to come to an agreement regarding Walton's concerns. The government offered to place a portable hard drive containing all discovery at the law library of each floor of the Metropolitan Detention Center (“MDC”), but Walton's counsel claims this is unworkable because the inmates are limited to one hour per week in the law library. (Mot. at 3.) The government maintains that, according to MDC counsel, inmates are permitted three hours per week at the law library, not one. (Opp. at 7 n.8.) Defense counsel's counter-proposal was to give each defendant a personal portable hard drive that could be accessed at their convenience in MDC's common rooms, but the government rejected this proposal because MDC regulations do not allow inmates to possess external hard drives (which could be disassembled and used for improper purposes), MDC counsel states that computers in the common room likely do not have USB ports, and other inmates could gain access to the hard drives. (Mot. at 3-4; Opp. at 7-8.)

         Trial in this case is currently set for August 15, 2017, five months from now.

         III. DISCUSSION

         Federal Rule of Criminal Procedure 16(a)(1)(E) provides that “[u]pon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and: (i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant.” The Jencks Act further provides that “[a]fter a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement . . . of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.” 18 U.S.C. § 3500.

         On the other hand, “[a]t any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief. The court may permit a party to show good cause by a written statement that the court will inspect ex parte. If relief is granted, the court must preserve the entire text of the party's statement under seal.” Fed. R. Crim. P. 16(d)(1). In determining whether a protective order is appropriate, courts consider factors such as the “‘safety of witnesses and others, a particular danger of perjury or witness intimidation, the protection of information vital to national security, and the protection of business enterprises from economic reprisals.'” United States v. Stone, No. CR12-0072-JCC-GSA, 2014 WL 788349, at *2 (E.D. Cal. Feb. 25, 2014) (quoting 2 Charles Alan Wright et al., Federal Practice & Procedure Criminal § 262 (4th ed. 2013)). Rule 16's advisory committee notes further provide that “it is obvious that [a protective order] would be appropriate where there is reason to believe that a witness would be subject to physical or economic harm if his identity is revealed.” Fed. R. Crim. P. 16 advisory committee's note to 1974 amendments; see also United States v. Barbeito, No. CR.A. 2:09-CR-00222, 2009 WL 3645063, at *1 (S.D. W.Va. Oct. 30, 2009) (“It is appropriate, however, to employ Rule 16(d) protective orders to curtail the public dissemination of sensitive discovery materials that may endanger witnesses or informants.”).

         The government maintains that by “producing from the outset unredacted discovery that disclosed both the identities and statements of cooperating witnesses, the government has exceeded its discovery obligations under the Federal Rules of Criminal Procedure and relevant case law governing the disclosure of that material.” (Opp. at 11 (citing Fed. R. Crim P. 16(a)(1)(E); United States v. Walk, 533 F.2d 417, 419 (9th Cir. 1975) (explaining that Jencks Act discovery, even if material to the defense, cannot be compelled until a witness has testified on direct examination); and United States v. Bonilla, 615 F.2d 1262, 1264 (9th Cir. 1980) (finding government may rightfully withhold the identity of a cooperating witness until ten days before trial).) The government made these early disclosures specifically in reliance on the safeguards afforded to the cooperating witnesses in the Protective Orders. (Id.) However, Walton argues that because Defendants cannot keep physical copies of the Protected Information, those documents must be read to Defendants, which is “simply not practical” given the “voluminous nature of the discovery, ” and prevents Defendants from “fully digest[ing] and contemplate[ing] the significance of the discovery.” (Mot. at 6.) He contends that due to the Protective Orders, “a single reading of the discovery is, frankly, all that can be hoped for.” (Id.) After Walton filed his motion, roughly 10, 576 of the 11, 676 pages Protected Information were de-designated and were no longer subject to the ...


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