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United States v. Glenn

United States District Court, D. South Dakota, Western Division

January 23, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
SIMON GLENN, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS (DOC. 89)

          DANETA WOLLMANN, UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Defendant, 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

         The 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 otherwise;
2. Any memorialization of, or notes pertaining to plea negotiations;
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.

         DISCUSSION

         I. Whether Mr. Glenn is Entitled to Discovery of Internal Government Memoranda to Support his Vindictive Prosecution Claim

         Mr. 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.

         Federal 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.

         Mr. 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.

         II. Whether Mr. Glenn is Entitled to the Grand ...


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