United States District Court, D. Maine
ORDER ON MOTION FOR PROTECTIVE ORDER
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
Court grants the Government's motion for protective order
to restrict the copying and dissemination of Jencks Act
material to a defendant awaiting sentencing after a guilty
verdict due to concerns about the safety of cooperating
27, 2016, on the sixth day of a jury trial, a federal jury
found Jermaine Mitchell guilty of engaging in a conspiracy to
distribute or possess with the intent to distribute 280 grams
or more of cocaine base, a violation of 21 U.S.C. §
841(a)(1). Jury Verdict Form 1-2 (ECF No. 520)
(Verdict). Before trial, the Assistant United States
Attorney (AUSA) offered to produce Jencks Act, 18 U.S.C.
§ 3500, material to the Defendants, including Mr.
Mitchell, in advance of the statutory deadline so long as
they agreed not to copy or disseminate the material.
Gov't's Mot. for Protective Order Re: Jencks Act
Materials at 1 (ECF No. 640) (Gov't's
Mot.). The AUSA was concerned that the material could be
used to intimidate or retaliate against the cooperating
defendants while they served their sentences. Id.
Counsel for Jermaine Mitchell assured the AUSA that the
materials would be neither copied nor disseminated.
Court has scheduled Mr. Mitchell's sentencing for
February 14, 2017. Notice of Hr'g (ECF No. 644).
The AUSA represents that defense counsel for Mr. Mitchell has
stated that he intends to copy the disclosed materials and to
provide copies to the Defendant. Gov't's
Mot. at 1-2. The AUSA continues to be concerned about
the use of these materials to harass or intimidate the
cooperating informants, id., and the Government
seeks a protective order prohibiting counsel from copying or
disseminating the Jencks Act statements the Government
provided before trial. Id. at 4.
response, Mr. Mitchell's counsel agrees that the AUSA
provided Jencks Act material “[s]easonably in advance
of trial.” Opp'n to Mot. for Protective
Order at 1 (ECF No. 641). He concurs that the material
included “Grand Jury transcripts, proffer reports,
interview reports, plea agreements and immunity agreements of
several of the witnesses who testified at trial, ”
id. and that the Government supplied the material
“only upon the condition that counsel would not copy
and disseminate the material to anybody, including the
defendant, who was, and still is, in jail.”
Id. Following trial, defense counsel obtained a copy
of the trial transcript and supplied it to Mr. Mitchell.
Id. Mr. Mitchell has now requested that his attorney
send him a copy of the Jencks Act material so that he can
compare the transcripts of the trial testimony to the
contents of the Jencks Act material. Id. Before
trial, defense counsel had provided Mr. Mitchell only with
summaries of some of the witnesses' statements and
testimonies. Id. Defense counsel observes that
pending the imposition of sentence, Mr. Mitchell is being
housed in the Hancock County Jail in Ellsworth, Maine, three
hours each way from defense counsel's office in Portland,
Maine. Id. at 2.
constraints on the availability of discovery in a criminal
case are covered by Federal Rule of Criminal Procedure
At any time the court may, for good cause, deny, restrict, or
defer discovery or inspection, or grant other appropriate
Fed. R. Crim. P. 16(d)(1). The Supreme Court has long held
that a district court may impose restrictions on the
“unwarranted disclosure” of materials produced in
a criminal case. Alderman v. United States, 394 U.S.
165, 185 (1969).
Criminal Rules Advisory Committee has stated that
“[a]mong the considerations to be taken into account by
the court will be the safety of witnesses and others, a
particular danger or perjury or witness intimidation. . .
.” Fed. R. Crim. P. 16 advisory committee's note to
1966 amendment; see United States v. Bulger, 283
F.R.D. 46, 55-56 (D. Mass. 2012). Although the Rule does not
define “good cause, ” the Advisory Committee
expressly sanctions the imposition of a protective order
“where there is reason to believe that a witness would
be subject to physical . . . harm[.]” Id.
advisory committee's note to 1975 amendment. The burden
to demonstrate good cause rests with the party requesting the
protective order, in this case the Government. United
States v. Aden, No. 3:10-CR-00260, 2011 U.S. Dist. LEXIS
158343, at *32 (M.D. Tenn. May 10, 2011); United States
v. Nelson, 486 F.Supp. 464, 480 (W.D. Mich. 1980). In a
case where retaliation is reasonably feared against
cooperating witnesses, courts commonly impose restrictions on
the copying of Jencks Act material because “[h]ard
evidence of the witness's betrayal can facilitate
retaliation or intimidation of the witness.” United
States v. Garcia, 406 F.Supp.2d 304, 306 (S.D.N.Y.
2005); United States v. DeLeon, No. CR 15-4268 JB,
2016 U.S. Dist. LEXIS 149631, at *121-22 (D.N.M. Oct. 28,
2016) (“”[T]he Court will order defense counsel
to take these papers with them to custodial facilities, and
they will ensure that no paper discovery is left with the
Defendants”). Furthermore, the Government need not wait
until actual threats are made or carried out in order to
obtain an order restricting the copying of Jencks Act
material or forbidding the possession of such material within
a jail cell. As the district court in Garcia
commented, “by the time intimidation or retaliation
against witnesses has occurred, the damage has been
done.” 406 F.Supp.2d at 306.
does not mean that whenever the Government raises the specter
of witness intimidation, it will meet its burden. Where
specific documents are at issue, the Government has the
obligation to make a “particularized, specific
showing” to demonstrate good cause for the need for a
protective order for each document. United States v.
Williams, No. 15-10145-RGS, 2015 U.S. Dist. LEXIS
138261, at *11 (D. Mass. Oct. 9, 2015) (quoting
Bulger, 283 F.R.D. at 52). However, here, the
Government is proposing that the Court issue a so-called
“blanket order, ” covering all the Jencks Act
material that it disclosed pretrial to Mr. Mitchell's
counsel. “Because a blanket protective order extends
protection to all documents produced by the government, the
government is not required to make a particularized showing
of a need for confidentiality as to any specific
document.” United States v. Lewis, No.
16-30002-MGM, 2016 U.S. Dist. LEXIS 23763, at *3 (D. Mass.
Feb. 26, 2016) (citing Bulger, 283 F.R.D. at 52-53).
At the same time, if a party has a specific objection, a
court may trim an “overbroad or unnecessary”
proposed order. Williams, 2015 U.S. Dist. LEXIS
138261, at *13 (quoting United States v. Smith, 985
F.Supp.2d 506, 545 (S.D.N.Y. 2013)); Bulger, 283
F.R.D. at 58 (“Simply referring to broad swaths of
categories of material is not sufficient”).
potential need for a blanket protection order is apparent in
this case. Mr. Mitchell stands convicted of engaging in a
conspiracy to distribute or possess with the intent to
distribute 280 grams or more of cocaine base, and the jury
determined that Mr. Mitchell's own conduct involved 280
grams or more of cocaine base. Verdict Form at 1-2.
With this verdict, Mr. Mitchell faces a minimum prison term
of ten years and a maximum of life. 21 U.S.C. §
841(b)(1)(A). Although the Presentence Report has not been
finalized, an initial draft set his guideline sentence range
at 360 months to life. Presentence Investigation
Report ¶ 52. Some members of the drug trafficking
conspiracy gave information to the Government in its
investigation of the conspiracy, and some testified against
him at his trial; it would only be natural for Mr. Mitchell
to be displeased with the people whose cooperation with the
Government helped subject him to a long term of
incarceration. See Lewis, 2016 U.S. Dist. LEXIS
23763, at *2-5 (approving a blanket protective order in a sex
trafficking case because of vulnerable victims subject to
threat of physical injury).
significantly, the conspiracy in this case originated in New
Haven, Connecticut, and its prime movers were members of the
Red Side Guerilla Brims, a violent street gang that is an
affiliate of the Blood Nation. According to the trial
testimony, one of the chiefs of the Red Side Guerilla Brims
ordered a New Haven gang member to Maine to oversee the
Bangor-area operation because of the gang member's
alleged involvement in the murder of a New Haven resident and
the risk of retaliation in Connecticut. The Red Side Guerilla
Brims' Bangor operation involved not only crack cocaine
and some heroin, but it also involved trafficking in
firearms. Thus, the Red Side Guerilla Brims and some of the
members involved in the Maine operation have a well-earned
reputation for violence and a demonstrated access to numerous
firearms. While there is no evidence that Mr. Mitchell, who
had been living locally for a number of years, was a member
of the Red Side Guerilla ...