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United States v. Hamzeh

United States District Court, E.D. Wisconsin

October 10, 2019

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

          ORDER OVERRULING OBJECTIONS (DKT. NO. 224) AND AFFIRMING JUDGE DUFFIN'S DISCOVERY ORDER (DKT. NO. 219) AND CIPA ORDERS (DKT. NOS. 220, 221)

          HON PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         Over the last three years, the defendant and the government have engaged in numerous discovery disputes before Magistrate Judge William E. Duffin. To streamline the outstanding requests and expedite the case, Judge Duffin held a status conference on February 1, 2019 where he ordered the defendant to file a single motion to resolve any and all remaining pretrial/discovery issues. Dkt. No. 213. The defendant filed that motion two weeks later. Dkt. No. 214. The motion stated that it superseded any previously outstanding discovery requests but did not supersede the defendant's arguments against the government's invocation of the Classified Information Procedures Act (“CIPA”) regarding certain discovery subjects. Id. In late March, Judge Duffin issued an order on the defendant's composite discovery motion, dkt. no. 219, and two orders under CIPA, dkt. nos. 220, 221. Two weeks later, the defendant filed a consolidated objection to both Judge Duffin's general discovery order and the two CIPA orders. Dkt. No. 224. This order overrules the defendant's non-CIPA related discovery objections; the court will issue a separate order concerning the discovery related to CIPA.

         I. BACKGROUND

         Neither the defendant's objections nor the government's response contested Judge Duffin's recitation of the background leading to this dispute. The court reproduces it here for context:

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.
In 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 previous 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.

         II. Defendant's Motion for Discovery (Dkt. No. 214)

         Before Judge Duffin, the defendant's composite motion for discovery listed the following seven categories of information he requested: (1) missing texts; (2) missing emails; (3) “Information related to the informants' credibility, including instructions and admonitions”; (4) outstanding or missing recorded phone conversations; (5) documents related to the informants and the recording devices; (6) surveillance used to investigate and track the defendant; and (7) pretrial notice of the government's intent to present certain evidence at trial. Dkt. No. 214.

         The government's response addressed each category. Dkt. No. 217. As for text-messages, the government argued that it had redacted text messages “very minimally” and that the defendant had not identified with particularity any improperly redacted messages. Id. at 2.

         As for emails, the government asserted that it had produced all emails in the government's possession for Agents Adkins, Zuraw and Fraser. Id.

         As for material related to the confidential human sources (“CHS”), the government responded that (a) all discovery related to the CHS's financial compensation was covered in the government's CIPA filings; (b) any report or reviews on the CHSs used in this case were either the subject of CIPA filings or already produced as Giglio material; (c) the government had produced every document it could regarding instructions given to a CHS but would not (and was not obligated to) create records of non-memorialized conversations; and (d) the absence of recordings for thirty-five days was not, of itself, exculpatory. Id. at 3-4.

         As for recorded phone calls, the government asserted that all call recordings had been produced. Id.

         As for surveillance of the defendant, the government stated that the materials either fell under CIPA, did not exist or did not implicate Brady. Id. at 5.

         As to notice of evidence prior to trial, the government opposed the defendant's request that the court require the government to give the defendant forty-five days of notice for exhibits it will use from the plaintiff's cell phone and PlayStation, a laptop from his home, and pole camera surveillance of the defendant. Id. at 6. It contended, however, that if the court did impose a forty-five-day notice rule, the rule should apply both to the government and the defense. Id. at 9.

         In reply, the defendant explained his requests. Dkt. No. 218. Regarding text messages, he asserted that he had attached the text message redactions to his motion and “believe[d] the Court will understand his position simply by reviewing the redactions, which don't appear to be confined to confidential personal information.” Id. at 1 (texts submitted at dkt. no. 211).

         As for emails, the defendant expressed disbelief that only eleven pages of emails were sent between agents, and proffered Special Agent Adkins' spoliation hearing testimony where he said that he had never searched his emails to see which pertained to the defendant's case. Id. at 6.

         As for instructions to the CHSs, the defendant maintained that (a) he previously had heard “we've turned over everything” from the government, only to later be given (or discover) more information; and (b) the government had an obligation to produce Brady information even if such information had not been memorialized. Id. at 2-3 (citing United States v. Rodriguez, 496 F.3d 221 (2d Cir. 2007); Cary, Singer, Latcovich, Federal Criminal Discovery, at 30 (ABA 2011) (“The government cannot avoid its Brady obligations by choosing not to memorialize favorable information in writing.”)).

         Further, he argued that the absence of recorded calls was itself exculpatory and that information about unrecorded calls or conversations needed to be turned over as exculpatory evidence. Id. at 3. These unrecorded calls were relevant, he said, because “the defense is attempting to show that not only was [the defendant] not predisposed to commit this crime, the CHSs were creating a crime and inducing [the defendant] to commit it while refusing to record because they didn't want their actions disclosed.” Id. at 5.

         As for the calls that were recorded, the defendant claimed that the government's explanation as to why certain recordings don't exist (because those calls weren't answered) “rings hollow.” Id. at 6. He argued that discovery showed that certain calls appeared to last for over a minute but were not recorded. Id. at 6.

         Finally, the defendant argued that his forty-five-day-notice request was a matter of the court's discretion and would help the defense adequately prepare and hire an expert if the need arose. Id. at 7.

         III. Judge Duffin's March 25, 2019 Order on Discovery (Dkt. No. 219)

         Judge Duffin ruled on the defendant's discovery motion on March 25, 2019. Dkt. No. 219. His order separately analyzed each category of the defendant's request.

         A. Text Messages

         Judge Duffin first conceded that the defendant had not received every single text message, but concluded based on the evidence he'd heard at the spoliation hearing that any messages the defendant had not received were “unrecoverable due to a technical failure beyond the government's control.” Id. at 3.

         He observed that regarding the text messages the defendant had received, the defendant now sought fully unredacted versions of those messages. Id. at 3. He recounted the government's assertion that the defendant had not specified any particular redactions that he believed were improper or explained why he believed they were improper. Id. Given that, Judge Duffin reviewed every redacted text messaged, and found the government's representation that the redactions were minimal “accurate.” Id. He stated that out of hundreds of text messages, only roughly forty had been redacted, “spanning from a few characters to one redaction that spans nine lines of text.” Id. at 4. He said that only a few messages had been redacted entirely, and that “the nature of the redacted material [was] often readily discernable from the context of the message.” Id.

         Judge Duffin analyzed the defendant's request under Fed. R. Crim. P. 16, observing that the defendant had the burden of making a prima facie showing that the requested information was “material to the defense.” Id. (citing United States v. Caputo, 373 F.Supp.2d 789, 793 (N.D. Ill. 2005)). He concluded that the defendant had failed to meet his burden to make a prima facie showing of materiality; he had not identified which redactions were allegedly improper or why, and offered only speculation and “bald conjecture” that the redactions “may potentially” conceal useful or exculpatory information. Id. at 5.

         B. Emails

         Judge Duffin recounted that he had previously ordered the government to disclose “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, ” and that the government had not objected. Id. (citing Dkt. No. 150 at 2). He noted that the defendant had argued that while he had received eleven pages of emails, “testimony from the spoliation hearing suggests additional emails are available.” Id. He observed that the government hadn't really responded to this argument, id. at 5-6, and that in reply, the defendant had asserted 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.” Id. at 6. Judge Duffin explained that the defendant pointed to Special Agent Zuraw's testimony at the spoliation hearing, where he had estimated that he sent ten to fifteen emails in this case (and received a similar number), and to the testimony of Special Agent Adkins, who testified that he never looked for or attempted to retrieve e-mails. Id. at 5.

         Judge Duffin found the fact that Adkins had not looked for emails irrelevant absent any evidence that it was his responsibility to retrieve emails for discovery purposes.” Id. (referencing in a parenthetical testimony from an FBI analyst at the spoliation hearing that the FBI's Office of General Counsel handled discovery requests for emails and citing dkt. no. 205 at 32). As to Zuraw's estimate about the number of emails he sent and received, Judge Duffin noted that the defendant had not said how many emails were contained on the eleven pages of emails the government had produced. Id. And, Judge Duffin pointed out, another agent had testified that the agents didn't typically communicate about the case via email. Id. Finally, Judge Duffin stated that even if the defendant “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 [the defendant].” Id. at 7. He stated, “The court has already ordered that all emails related to this investigation be turned over to [the defendant]. The United States has repeatedly represented that it has done so. [The defendant's] disbelief notwithstanding, there is simply nothing more the court can do.” Id.

         C. Informants

         As for information about the informants, Judge Duffin broke the defendant's request into three sub-parts: (1) benefits received by the informants; (2) instructions or admonishments to the informants; and (3) informant files. Id. at 7-12. As for any benefits the informants received, Judge Duffin observed that the government had represented that the CHSs received no immigration benefits and that information related to their financial compensation was covered in the government's CIPA filings. Id. at 8. He said that his CIPA order covered these materials. Id.

         As for instructions or admonishments given to the informants, Judge Duffin observed that the defendant interpreted Rule 16 and Brady to require the government to “not merely provide the documents [the government has] but tell him about any verbal instructions or admonishments given to the informants-which would require the government to create new documents to answer his inquiry.” Id. at 8. He recounted how, in an earlier motion, the defendant had argued that the government misunderstood its obligations under Fed. R. Crim. P. 16 and Brady, and that those authorities required the government to “supply information whether memorialized or not.” Id. at 9, citing Dkt. Nos 177 at 5, 209 at 7. Judge Duffin agreed that there was a misunderstanding as to the government's disclosure obligations, but opined that the misunderstanding was the defendant's, not the government's. Id. He said, “The government aptly equates [the defendant's] demands to civil interrogatories, ” and pointed out that the rules of criminal procedure contain no analog to Fed.R.Civ.P. 33. Id. (citations omitted). He also pointed ...


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