United States District Court, E.D. Wisconsin
ORDER OVERRULING OBJECTIONS (DKT. NO. 224) AND
AFFIRMING JUDGE DUFFIN'S DISCOVERY ORDER (DKT. NO. 219)
AND CIPA ORDERS (DKT. NOS. 220, 221)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
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that it superseded any previously outstanding discovery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.
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
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.
Defendant's Motion for Discovery (Dkt. No. 214)
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.
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.
emails, the government asserted that it had produced all
emails in the government's possession for Agents Adkins,
Zuraw and Fraser. Id.
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.
recorded phone calls, the government asserted that all call
recordings had been produced. Id.
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.
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.
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).
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.
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.”)).
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.
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
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.
Judge Duffin's March 25, 2019 Order on Discovery (Dkt.
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.
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.
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
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.
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.
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.
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.
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 ...