United States District Court, D. South Dakota, Western Division
ORDER DENYING DEFENDANT'S MOTION TO COMPEL
PRODUCTION OF DOCUMENTS (DOC. 89)
WOLLMANN, UNITED STATES MAGISTRATE JUDGE
Simon Glenn, filed a motion to compel the government to turn
over certain discovery. (Doc. 89). This motion to compel was
located in Mr. Glenn's reply brief in support of the
motion to dismiss Count II of the Superseding Indictment on
the basis of vindictive prosecution.
facts of this case are set out in the Report and
Recommendation concerning the defendant's motion to
dismiss Count I of the Superseding Indictment on the basis of
unconstitutional vagueness (Doc.125). In his motion for
discovery (Doc. 89), Mr. Glenn requested an order compelling
the government to provide:
1. Any and all prosecutorial memos (analyzing the facts,
potential charges, recommendations regarding charges, seeking
approval or charges, or updates regarding the same) that have
been drafted or completed in this case, internal or
2. Any memorialization of, or notes pertaining to plea
3. Any emails, notes or memorialization of charging decisions
or charging options regarding this case (outside the
prosecutorial memos); and 4. The Grand Jury Transcripts.
Whether Mr. Glenn is Entitled to Discovery of
Internal Government Memoranda to Support his
Vindictive Prosecution Claim
Glenn argues the requested items of discovery would serve to
prove or disprove the United States Attorney's intent in
adding Count II of the Superseding Indictment. He does not
address Federal Rule of Criminal Procedure 16(a)(2) and its
bar to discovery of internal government documents. The United
States argues that internal government documents relating to
charging decisions, notes or emails relating to plea
negotiations are excluded from discovery by Rule 16(a)(2) of
the Federal Rules of Criminal Procedure. The United States
also argues that there is a stringent standard for obtaining
discovery in vindictive prosecution claims and the requested
discovery is protected by the deliberative process privilege.
Rule of Criminal Procedure 16(a)(2) states, “[e]xcept
as permitted by Rule 16(a)(1)(A)-(D), (F), and (G), this rule
does not authorize the discovery or inspection of reports,
memoranda, or other internal government documents made by an
attorney for the government or other government agent in
connection with investigating or prosecuting the case.”
The sections excepted from this subsection relate to (A)
Defendant's Oral Statement, (B) Defendant's Written
or Recorded Statement, (C) an Organizational Defendant, (D)
Defendant's Prior Record, (F) Reports of Examinations and
Tests and (G) Expert Witnesses.
Glenn is barred from receiving his requested discovery
(except for the grand jury transcripts) under the plain
language of Federal Rule of Criminal Procedure 16(a)(2). The
defendant did not present, and the court has not found any
cases in which a defendant was granted discovery of these
protected materials for a vindictive prosecution claim. In
fact, in United States v. Carron, a case to which
the defendant cites for the proposition that he must show a
“colorable basis” to receive discovery for his
vindictive prosecution claim, the court rejected the
defendant's request for discovery of “records,
orders, regulations, and communications issued by the
Department of State and the Immigration & Naturalization
Service regarding the defendants and the decision to
prosecute them.” 541 F.Supp. 347, 349 (W.D. NY 1982).
This rejection was based in part on Rule 16(b)(2).
Id. at 349. While the court did permit the
defendants some discovery, the defendants were only entitled
to “non-privileged information” which was
essentially limited to statistical data requested by
defendants and did not include documents relating to the
decision to prosecute them. Id. at 350. Thus, Mr.
Glenn is not entitled to discovery of items 1, 2 or 3.
Whether Mr. Glenn is Entitled to the Grand ...