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United States v. Hamzeh

United States District Court, E.D. Wisconsin

March 25, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
SAMY HAMZEH, Defendant.

          ORDER ON THE DEFENDANT'S DISCOVERY MOTIONS

          WILLIAM E. DUFFIN U.S. Magistrate Judge.

         1. Background

         Samy 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.

         Over 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.

         It 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.

         Hamzeh 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.

         Therefore, 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).

         Hamzeh's motions to seal (ECF Nos. 200, 210, 215) are granted.

         2. Text Messages

         Although 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.)

         The 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.

         The 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 omitted).

         The 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).

         Hamzeh 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 messages.

         3. Emails

         On July 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.)

         The 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 1-2.)

         In 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).)

         The 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.)

         Regardless 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 ...


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