United States District Court, E.D. Wisconsin
ORDER ON THE DEFENDANT'S DISCOVERY
WILLIAM E. DUFFIN U.S. Magistrate Judge.
Hamzeh is accused of unlawfully possessing two machine guns
and one silencer. (ECF No. 6.) But this case is not a simple
firearms case. Hamzeh acquired these firearms as part of an
alleged plan to kill dozens of people to “defend
Islam.” (ECF No. 1.) Hamzeh alleges he was entrapped by
confidential informants who were motivated to present him as
a terrorist so that they might receive benefits from the FBI.
the course of this protracted case Hamzeh has filed a variety
of discovery motions. In response to several of the motions
the government indicated a willingness to provide Hamzeh with
at least some of the information sought. The court had more
than one status conference with the parties at which the
discovery motions were discussed, and at various times it was
determined that the motions were either moot or generally on
track toward resolution between the parties. But the filing
of additional motions would cause the process to repeat.
light of the number of pending motions and uncertainty as to
which issues actually remained unresolved, at a February 1,
2019 status conference the court ordered Hamzeh to file a
single, comprehensive motion addressing all unresolved
discovery issues. (ECF No. 213.) The expectation was that all
prior motions would be rendered moot.
filed a motion that partially supersedes his other pending
discovery motions. (ECF No. 214.) He states, “It does
not, however, supersede the defense's [Classified
Information Procedures Act] CIPA brief and request for oral
argument about why the various categories of information for
which the government has claimed CIPA protection are
discoverable and should be turned over to the defense.”
(ECF No. 214 at 1.) He identifies seven categories of
information that remain in dispute.
the following motions are dismissed as moot:
Motion to Supplement Record Regarding Second Brady
Motion (ECF No. 158); Third Motion to Compel Brady
and Rule 16 Material: Intercepted Communications (ECF No.
174); Fourth Motion to Compel Brady and Rule 16 Material (ECF
No. 177); Motion for Pretrial Notice of Government's
Intent to Present Certain Evidence at Trial (ECF No. 178);
Unopposed Motion to Adjourn Status Conference (ECF No. 188);
Fifth Motion to Compel Brady and Rule 16 Material
(ECF No. 209).
motions to seal (ECF Nos. 200, 210, 215) are
Hamzeh has not received all text messages, based on the
evidence adduced at the spoliation hearing (ECF Nos. 203,
205) the court finds that those messages which Hamzeh has not
yet received are unrecoverable due to a technical failure
beyond the government's control. However, Hamzeh states
he is still seeking unredacted copies of the text messages he
has received. The government responds that it “redacted
the produced texts very minimally” (ECF No. 217 at 1)
and argues that its redactions were all proper (ECF No. 217
at 2). It notes Hamzeh “has not identified with any
particularity which redactions he believes were improper or
his basis for that belief.” (ECF No. 217 at 2.) Hamzeh
replies that he “believes the Court will understand his
position simply by reviewing the redactions, which don't
appear to be confined to confidential personal
information.” (ECF No. 218 at 1.)
court has reviewed the text messages in their redacted form,
which Hamzeh submitted to the court under seal. (ECF No.
211.) The court finds accurate the government's
representation that the redactions were minimal. In fact,
Hamzeh concedes as much. (ECF No. 209 at 3 (“To the
government's credit, few are redacted, and some of the
redacted texts appear likely to legitimately obscure
sensitive information.”).) Of the hundreds of text
messages, there are only roughly 40 redactions, spanning from
a few characters to one redaction that spans nine lines of
text. Most redactions appear to be of just a word or two.
Only a few messages are redacted in their entirety. The
nature of the redacted material is often readily discernable
from the context of the message.
United States must provide to Hamzeh any document within its
“possession, custody, or control” if “the
item is material to preparing the defense, ” “the
government intends to use the item in its case-in-chief at
trial” or “the item was obtained from or belongs
to the defendant.” Fed. R. Crim. P. 16(a)(1)(E); Crim.
L.R. 16(a) (E.D. Wis.). The court understands Hamzeh to be
arguing that the redacted information is “material to
preparing the defense.” “Documents are
‘material to preparing the defense' if they could
‘significantly help in uncovering admissible
evidence, aiding witness preparation, corroborating
testimony, or assisting impeachment and rebuttal.'”
United States v. Caputo, 373 F.Supp.2d 789, 793
(N.D. Ill. 2005) (quoting United States v. Gaddis,
877 F.2d 605, 611 (7th Cir. 1989)) (internal quotation marks
defendant has the burden to make “at least a prima
facie showing of materiality.” United States v.
Caputo, 373 F.Supp.2d 789, 793 (N.D. Ill. 2005) (citing
United States v. Thompson, 944 F.2d 1331, 1341 (7th
Cir. 1991)). “To make a prima facie showing, a
defendant cannot rely on general descriptions or conclusory
arguments, but must convincingly explain how specific
documents will significantly help him uncover admissible
evidence, prepare witnesses, or corroborate, impeach, or
rebut testimony.” United States v. Caputo, 373
F.Supp.2d 789, 793 (N.D. Ill. 2005).
has failed in his burden to make the requisite prima facie
showing of materiality. As the government points out, he has
not identified which redactions he believes were improper and
his basis for that belief. He offers only speculation that
“redacted texts may potentially conceal the identities
of witnesses, other useful or exculpatory information, or
information necessary to understand the text.” (ECF No.
209 at 3.) Such bald conjecture is insufficient. Therefore,
the court will deny Hamzeh's motion with respect to text
25, 2018, in light of the government's lack of
opposition, the court ordered the government to disclose to
Hamzeh “e-mail[s] on both the FBI internal (FBI net)
and FBI official external (Internet Café-IC) to/from
all agents, TFOs, CHSs or professional support staff relating
in any way to the investigation.” (ECF No. 150 at 2);
United States v. Hamzeh, No. 16-CR-21, 2018 U.S.
Dist. LEXIS 124342, at *2 (E.D. Wis. July 25, 2018). Hamzeh
states he has received only eleven pages of emails and argues
that testimony from the spoliation hearing suggests
additional emails are available. (ECF No. 214 at 2-3.)
government does not materially respond to this issue.
Although its response brief contains the heading,
“Texts and Emails (Defense Categories 1 and 2), ”
in the paragraphs that follow the government discusses only
the redaction of the text messages other than to say that it
has produced all emails in the its possession “for
Agents Adkins, Zuraw, and Fraser.” (ECF No. 217 at
reply Hamzeh contends that it simply doesn't make sense
that, in an investigation involving as many people as this
one, only eleven pages of emails were generated. (ECF No. 218
at 6.) He points to the testimony of FBI Special Agent Zuraw,
who estimated that he sent ten to fifteen emails as part of
this case and received a similar number. Hamzeh also notes
that Special Agent Adkins testified he never looked for or
attempted to retrieve emails. (ECF No. 215 at 6 (citing ECF
No. 205 at 53).)
fact that Adkins did not look for emails is irrelevant absent
any evidence that it was his responsibility to retrieve
emails for discovery purposes. (Cf. ECF No. 205 at
32 (testimony of an FBI analyst stating he believed discovery
requests regarding emails were handled by the Office of
General Counsel).) As to Zuraw's estimate that he sent
maybe as many as fifteen emails and perhaps received the same
number, Hamzeh does not state how many emails were contained
on the “eleven pages of emails” that he says were
produced. Moreover, another agent testified that
communication about the case was not typically through email.
(ECF No. 205 at 116; see also ECF No. 205 at 124.)
He testified that emails were generally limited to matters
such as “our calendars, our schedules, trying to
coordinate if we're available for either surveillance or
some sort of operational activity outside of the
office.” (ECF No. 205 at 117.)
of whether Hamzeh could persuade the court of the validity of
his suspicions that the United States' disclosure has
been incomplete, there is simply no relief the court can
grant Hamzeh. The court has already ordered that all emails
related to this investigation be turned over to Hamzeh. The
United States has repeatedly represented that it has done so.
Hamzeh's disbelief notwithstanding, there is simply
nothing more the court can do. See United States v.
Rahman, No. 11-CR-103, 2011 U.S. Dist. LEXIS 155131, at
*8 (E.D. Wis. Nov. 10, 2011) (“Although a federal
court's authority is great, it has its ...