United States District Court, D. Maine
MEMORANDUM DECISION AND ORDER ON DEFENDANTS'
MOTIONS TO COMPEL PRODUCTION OF DOCUMENTS, GOVERNMENT'S
MOTION FOR DEPOSITION “GROUND RULES,
” AND DEFENDANTS' MOTION TO QUASH THAT
H. RICH, III UNITED STATES MAGISTRATE JUDGE.
September 8, 2017, following the defendants' arraignment
on charges including violation of a federal statute requiring
oceangoing cargo vessels to maintain accurate records of the
transfer, discharge, and disposal of sludge, oil residue,
oily mixtures, and bilge water, see generally
Indictment (ECF No. 1), I held a hearing on several motions
related to the then-imminent depositions of four material
witnesses: the Government's Motion for Order Establishing
Deposition Ground Rules (“Ground Rules Motion”)
(ECF No. 7), the Defendants' Motion To Quash
Government's Application for “Ground Rules” .
. . and Motion To Compel Complete Disclosures (“Motions
To Quash/Compel”) (ECF No. 8), and the Defendants'
Emergency Motion To Compel Production of Interview Notes,
Documents Under Seal, and Other Statements and Materials in
the Possession of the United States (“Emergency Motion
To Compel”) (ECF No. 10).
from the bench, I granted in part the defendants' motions
to compel (ECF Nos. 8 and 10), to the extent that I ordered
the production of portions of written records, including
rough notes, and documents from related sealed cases
containing the substance of any relevant oral statements made
by the four material witnesses, and otherwise denied them.
Following discussion, the government did not press its motion
for ground rules (ECF No. 7), obviating the need to rule on
either that motion or the defendants' motion to quash it
(ECF No. 8). I write now to clarify the bases for my
rulings and to summarize my discussion with the parties
regarding the government's bid for deposition ground
MST Mineralien Schiffahrt Spedition und Transport GmbH
(“MST”) and Reederei MS “Marguerita”
GmbH & Co. Geschlossene Investment KG
(“Reederei”) are the operator and owner,
respectively, of the Motor Vessel
(“M/V”) Marguerita, an
oceangoing cargo vessel registered by the Republic of
Liberia. Indictment ¶¶ 1-2. Shortly after the
M/V Marguerita arrived in Portland Harbor on or
about July 7, 2017, to perform cargo operations, federal
agents boarded the vessel, conducting a criminal
investigation that included interviews of crew members.
Emergency Motion To Compel at 1-3. Several foreign crew
members of the M/V Marguerita were detained on
material witness arrest warrants. See id. at 1-2. In
separate proceedings, four of those crew members contested
their continued confinement pursuant to those warrants, as a
result of which I ordered that the government take their
depositions pursuant to Federal Rule of Criminal Procedure
15(a)(2) no later than September 23, 2017, enabling their
return to their homelands.
government scheduled the depositions of the four crew member
material witnesses from September 11 to 13, 2017, at the U.S.
District Court in Portland, Maine, filing its motion for the
establishment of deposition ground rules on August 31, 2017.
See Ground Rules Motion at 1. On September 1, 2017,
the defendants filed their combined motion to quash the
government's application for ground rules and motion to
compel complete disclosures, asserting, inter alia,
that they had, as of then, received neither mandatory nor
requested disclosures from the government. See
Motion To Quash/Compel at 4-5, 8. They filed their emergency
motion on September 5, 2017, stating that the government had
by then produced a voluminous number of documents, most of
which the defendants had previously produced to the
government. See Emergency Motion To Compel at 3.
However, they stated that the government had declined to
produce “handwritten or rough notes” or
“documents from the sealed proceedings involving the
crewmembers from the MARGUERITA.” Id. Hence,
they sought an order compelling the production of those
materials. See id. at 3-4. I scheduled a hearing on
all four motions for September 8, 2017, immediately following
the defendants' initial appearance and arraignment.
Defendants' Motions To Compel (Rough Notes)
defendants sought to compel the production of “all
government agents' notes (including handwritten, rough,
and smooth notes and memoranda) from the various crew member
interviews and interrogations conducted both on board the
Vessel and since the crew disembarked[.]” Emergency
Motion To Compel at 3-4 (footnote omitted). The government
represented, at oral argument, that the only notes that it
had not produced to the defendants were notes created during
interviews of crew members aboard the vessel.
defendants argued that they were entitled to copies of the
handwritten notes pursuant to Federal Rule of Criminal
Procedure 16(a)(1)(B)(ii), which states:
Upon a defendant's request, the government must disclose
to the defendant, and make available for inspection, copying,
or photographing, all of the following: . . . (ii) the
portion of any written record containing the substance of any
relevant oral statement made before or after arrest if the
defendant made the statement in response to interrogation by
a person the defendant knew was a government agent[.]
Crim. P. 16(a)(1)(B)(ii). The government conceded at oral
argument that the statements of the material witnesses can be
imputed to the corporate defendants in this case, and did not
dispute that those statements were made in response to
interrogation during which no counsel for the defendants was
present. However, the government took the position that its
provision to the defendants of formal written reports of the
interviews at issue satisfied the requirements of Rule 16.
defendants argued that a plain reading of Rule
16(a)(1)(B)(ii) entitled them to the handwritten notes, and I
agreed. The text of the rule makes clear that any
written record that contains the substance of a
defendant's relevant oral statement must be disclosed
upon the defendant's request. This means that if the
government is in possession of a document, regardless of its
format or title, that contains the substance of a
witness's statement, it must disclose that portion of the
document upon request. That the same statement may have also
been disclosed in a memorandum, report, or any other
distillation or restatement, even verbatim, does not suffice
to satisfy the clear command of Rule 16(a)(1)(B)(ii).
context, I deemed it instructive to examine a 1991 change in
the text of the rule. Before that time, the rule
“required production only of ‘the substance of
any oral statement' made by defendant during
interrogation that the government intends to offer at
trial.” United States v. Stein, 424 F.Supp.2d
720, 729 (S.D.N.Y. 2006) (quoting the immediately prior
version of the rule). By contrast, the rule as amended in
1991 and as still in effect today clearly requires that
“any” written record containing the substance of
a defendant's statement be disclosed on ...