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United States v. MST Mineralien Schiffarht Spedition UND Transport Gmbh

United States District Court, D. Maine

November 19, 2017

UNITED STATES OF AMERICA
v.
MST MINERALIEN SCHIFFARHT SPEDITION UND TRANSPORT GmbH and REEDEREI MS “MARGUERITA” GmbH & CO. GESCHLOSSENE INVESTMENT KG

          MEMORANDUM DECISION AND ORDER ON DEFENDANTS' MOTIONS TO COMPEL PRODUCTION OF DOCUMENTS, GOVERNMENT'S MOTION FOR DEPOSITIONGROUND RULES, ” AND DEFENDANTS' MOTION TO QUASH THAT MOTION

          JOHN H. RICH, III UNITED STATES MAGISTRATE JUDGE.

         On 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).

         Ruling 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).[1] 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 rules.

         I. Background

         Defendants MST Mineralien Schiffahrt Spedition und Transport GmbH (“MST”)[2] 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.

         The 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.

         II. Discussion

         A. Defendants' Motions To Compel (Rough Notes)

         The 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.

         The 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[.]

         Fed. R. 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.

         The 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).

         In this 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 ...


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