MICHAEL H. SIMON, District Judge.
Defendant Diana Yates ("Yates") and her co-defendant Dan Heine ("Heine") are charged with conspiracy to commit bank fraud and making false bank entries, reports, and transactions during the time that they were affiliated with The Bank of Oswego (the "Bank"). Before the Court is Yates's Motion for Additional Discovery pursuant to Federal Rule of Criminal Procedure ("Rule") 16(a) and Brady v. Maryland, 373 U.S. 83 (1963). For the reasons that follow, Yates's Motion is granted in part and denied in part.
Rule 16(a) "grants criminal defendants a broad right to discovery." United States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010). Rule 16(a)(1)(E) provides that a criminal defendant is entitled to discovery of documents and tangible things that are within the government's possession, custody, or control if the requested information is "material to preparing the defense." Documents and tangible things are in the government's possession if the prosecutor "has knowledge of and access to the documents sought by the defendant." Stever, 603 F.3d at 752 (quoting United States v. Santiago, 46 F.3d 885, 893 (9th Cir. 1995)). The requested information need not be admissible in evidence in order to be discoverable. See Robert M. Cary, Craig D. Singer & Simon A. Latcovich, Federal Criminal Discovery 96 (ABA Criminal Justice Section 2011) (hereinafter Federal Criminal Discovery).
A defendant's right of discovery under Rule 16, although broad, is not unlimited. Rule 16(a)(2) excludes some information from disclosure, including "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 purpose of the work product exception is to "protect from disclosure the opinions and mental impressions of government counsel and government agents in conducting their investigation and prosecution of the case." Federal Criminal Discovery 131; see also United States v. Fernandez, 231 F.3d 1240, 1247 (9th Cir. 2000) (describing Rule 16(a)(2) as a recognition of "the work product privilege" in criminal cases).
Additionally, a defendant must make a prima facie showing of materiality before obtaining discovery under Rule 16(a)(1)(E). Stever, 603 F.3d at 752. "Neither a general description of the information sought nor conclusory allegations of materiality suffice; a defendant must present facts which would tend to show that the Government is in possession of information helpful to the defense." United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990) (discussing former Rule 16(a)(1)(C)); see also United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993) (stating that Rule 16's materiality requirement "normally `is not a heavy burden,' . . . rather, evidence is material as long as there is a strong indication that it will `play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal'") (quoting United States v. George, 786 F.Supp. 56, 58 (D.D.C. 1992)). Rule 16 is broader than Brady because "[i]nformation that is not exculpatory or impeaching may still be relevant to developing a possible defense." United States v. Muniz-Jaquez, 718 F.3d 1180, 1183 (9th Cir. 2013).
In United States v. Muniz-Jaquez, the Ninth Circuit held that a defendant satisfied Rule 16's materiality requirement when he argued for the production of U.S. Border Patrol dispatch tapes mid-trial. Id. at 1183-84. A U.S. Border Patrol agent testified that immediately after seeing the defendant and other individuals near the border, he called for backup over his service radio. Id. at 1182. The prosecutor learned during recess that the agent's call for backup would have been recorded on dispatch tapes. Id. The defendant argued that the tapes are discoverable under Rule 16 and Brady because they are relevant to establishing whether law enforcement observed the defendant from the moment of his entry until arrest, and thus whether he could present an official restraint defense. Id. The defendant also argued that the tapes could impeach the agent. Id. at 1183. The district court characterized the defendant's arguments as speculative and untimely, and refused to order production of the dispatch tapes. Id.
The Ninth Circuit disagreed and found that the defendant satisfied Rule 16's materiality requirement, reasoning as follows:
Id. at 1184. Thus, the Ninth Circuit concluded that "[t]he district court had no basis for finding the defendant's showing of materiality to be speculative." Id.
Similarly, in United States v. Doe, 705 F.3d 1134 (9th Cir. 2013), the Ninth Circuit found that the district court abused its discretion in denying Rule 16 discovery requests for "any records or reports containing information Doe [the defendant] relayed to the FBI regarding illegal activity and any FBI calendars or other documents showing planned meetings with Doe." Id. at 1150-51. The Ninth Circuit reasoned that the documents would have been "helpful to his defense," including his entrapment defense and his public authority defense. Id. The Ninth Circuit explained:
Id. at 1151 (emphasis in original) (quoting Stever, 603 F.3d at 753).
In contrast, in United States v. Santiago, the Ninth Circuit held that a defendant failed to make a "threshold showing of materiality" of government witnesses' prison files under Rule 16. 46 F.3d at 894. The defendant argued that evidence from the prison files regarding the witnesses' gang affiliations is material because whether any witness is linked to a rival gang could be information relevant to impeachment at trial. Id. The Ninth Circuit explained that although the defendant had access to other documents regarding the government witnesses, and had interviewed several prison inmates, the defendant "did not cite any fact, such as a statement by the defendant or one of the interviewed witnesses, that might link one of the witnesses to a rival gang." Id. at 895. Accordingly, the Ninth Circuit concluded that the defendant "only asserted `conclusory allegations' without grounding in fact," and that the defendant did not satisfy Rule 16's materiality requirement. Id. (quoting Mandel, 914 F.2d at 1219).
"There is no general constitutional right to discovery in a criminal case." Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Under Brady, however, "prosecutors are constitutionally obligated to disclose `evidence favorable to an accused . . . [that] is material either to guilt or to punishment.'" Amado v. Gonzalez, 758 F.3d 1119, 1133 (9th Cir. 2014) (alterations in original) (quoting Brady, 373 U.S. at 87). The Supreme Court instructs that under Brady, "evidence is material `if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Strickler v. Greene, 527 U.S. 263, 280 (1999) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)); see also United States v. Gamez-Orduno, 235 F.3d 453, 461 (9th Cir. 2000) ("The suppression of material evidence helpful to the accused, whether at trial or on a motion to suppress, violates due process if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.") (citing Brady, 373 U.S. at 87; United States v. Barton, 995 F.2d 931, 933-34 (9th Cir. 1993)). Whether the government has complied with its Brady obligation to disclose material information is generally a determination that is made in post-trial proceedings. United States v. McVeigh, 954 F.Supp. 1441, 1449-50 (D. Colo. 1997) ("Generally, Brady violations first come before a court after the trial and the court may then consider the materiality of what was suppressed or omitted from disclosures made, in the context of the complete trial record.").
The government has a "broad obligation" to disclose information under Brady. Amado, 758 F.3d at 1134 (quoting Strickler, 527 U.S. at 281). "The government, where doubt exists as to the usefulness of evidence, should resolve such doubts in favor of full disclosure . . . ." United States v. Van Brandy, 726 F.2d 548, 552 (9th Cir. 1984) (citations omitted). Additionally, "[t]he prosecutor's duty to disclose information includes a duty to disclose information known to other agents of the government." United States v. Fort, 478 F.3d 1099, 1103 (9th Cir. 2007) (Wardlaw, J., dissenting) (citing Giglio v. United States, 405 U.S. 150, 154 (1972)).
The prosecution's duty to provide the defense with Brady material exists "regardless of whether the defense made any request of the prosecution; the prosecution is required to provide material, favorable information even `where the defendant does not make a Brady request.'" Amado, 758 F.3d at 1134 (quoting Bagley, 473 U.S. at 680-82). If the defendant requests specific evidence under Brady, she must show that the evidence is material. United States v. Alvarez, 358 F.3d 1194, 1211 (9th Cir. 2004); see also United States v. Stinson, 647 F.3d 1196, 1208 (9th Cir. 2011) ("A district court need not make such documents available based on `mere speculation about materials in the government's files.'") (quoting United States v. Mincoff, 574 F.3d 1186, 1200 (9th Cir. 2009)). "The test for materiality is whether the requested evidence might affect the outcome of the trial." Alvarez, 358 F.3d at 1211 (citing United States v. Agurs, 427 U.S. 97, 104 (1976)).
One treatise notes that "Brady's materiality concept, focusing as it does on the effect on the overall result of the trial, is difficult to apply in the pretrial context." Federal Criminal Discovery 95. In United States v. Sudikoff, 36 F.Supp.2d 1196 (C.D. Cal. 1999), U.S. District Judge Dean D. Pregerson explained that "[w]hether disclosure would have influenced the outcome of a trial can only be determined after the trial is completed and the total effect of all the inculpatory evidence can be weighed against the presumed effect of the undisclosed Brady material." Id. at 1198-99. Accordingly, the court asserted that Brady's materiality standard "is only appropriate, and thus applicable, in the context of appellate review." Id. at 1198. The court concluded that the proper "pretrial standard under Brady is evidence that may reasonably be considered favorable to the defendant's case and that would likely lead to admissible evidence." Id. at 1201.
Using this standard, the court considered the defendant's request for "all notes or other evidence of any communication between the government" and an accomplice witness who received immunity in exchange for his testimony. Id. at 1197 (quotation marks omitted). The court held that any information in the government's files that demonstrated any variation in the proffered testimony is relevant to the witness's credibility and thus must be disclosed under Brady. Id. at 1204.
Another district court in the Ninth Circuit took a different approach to considering a defendant's pretrial request for specific information under Brady. In United States v. W. R. Grace ("W. R. Grace I"), 401 F.Supp.2d 1069 (D. Mont. 2005), then-Chief Judge Molloy explained that:
Id. at 1076-77 (footnote omitted) (emphasis in original).
Despite the difficulty of applying Brady's materiality analysis in the pretrial context, this Court must follow Ninth Circuit law. The Ninth Circuit instructs that "in a case like this, in which the defendant requests specific evidence under Brady, he must show that it is material. The test for materiality is whether the requested evidence might affect the outcome of the trial." Alvarez, 358 F.3d at 1211.
The defendant, however, did not provide any reason "for believing that the notes contain significant material that is not contained in the typed summaries he already possesses," nor did the defendant provide any basis for his assertion that the notes were inherently more reliable than the summaries. Id. at 1116. The Ninth Circuit reasoned in part as follows:
Id. at 1116 (first alteration added). The Ninth Circuit concluded that because the defendant did not show that the rough interview notes "would be likely to affect the outcome of the trial" and were thus material to his defense, the district court did not abuse its discretion in finding that the defendant was not entitled to their production under Brady. Id.
In 2004, Yates and Heine co-founded the Bank, a financial institution engaged in the business of personal and commercial banking and lending. The Bank is headquartered in Lake Oswego, Oregon. Heine served as the Bank's President and Chief Executive Officer ("CEO"). As President and CEO, Heine supervised and managed the Bank's affairs and operations. Heine was also a member of the Bank's Board of Directors (the "Board"). Heine left the Bank in 2014. Yates, a certified public accountant, served as the Bank's Executive Vice President and Chief Financial Officer ("CFO"). As CFO, Yates was responsible for ensuring the Bank's compliance with state and federal regulations. Yates was also the Secretary of the Board. She resigned from the Bank in March 2012.
Both Yates and Heine were responsible for ensuring that the Bank operated in a sound and safe manner and for keeping the Board informed about the Bank's financial condition and the adequacy of the Bank's policies, procedures, and internal controls. Additionally, Yates and Heine were members of the Bank's Internal Loan Committee (the "ILC"). The duties of the ILC included approving loans that were outside the authority of individual Bank loan officers, ensuring the quality of the Bank's loan portfolio, and minimizing risks in that portfolio.
On June 24, 2015, a federal grand jury issued a 27-count indictment (the "Indictment") against both Yates and Heine for alleged conduct related to their time with the Bank. The Indictment charges Yates and Heine with one count of conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349, and 26 counts of making false bank entries, reports, and transactions, in violation of 18 U.S.C. § 1005. The Indictment alleges that beginning in about September 2009 and continuing through at least September 2014, Yates and Heine conspired to defraud the Bank by means of materially false representations and promises. The Indictment further alleges that the purpose of the conspiracy was to conceal the true financial condition of the Bank from the Board, the Bank's shareholders, regulators, and the public. According to the Indictment, Yates and Heine reported false and misleading information about loan performance, concealed information about the status of foreclosed properties, made unauthorized transfers of Bank proceeds, and failed to disclose material facts about loans to the Board, shareholders, and regulators, all in an effort to conceal the Bank's financial condition.
The Indictment also names Geoffrey Walsh ("Walsh") as a person who played a role in the alleged conspiracy. Walsh was the former Senior Vice President of Lending at the Bank. In May 2012, the Bank, acting through Heine, terminated the employment of Walsh for cause, in part based on Walsh's alleged misconduct concerning lending practices. Walsh was later indicted and charged in a separate case, United States v. Walsh, 3:13-cr-00332-SI-1 (D. Or. 2013), for conspiracy to commit wire fraud, wire fraud, and conspiracy to make false entries in bank records, among other charges. On July 22, 2015, Walsh pleaded guilty to certain charges alleged in a superseding indictment and a second superseding information. In Walsh's plea agreement, he accepted responsibility for acts related to those described in the Indictment against Yates and Heine. Walsh is currently awaiting sentencing.
The Indictment against Yates and Heine alleges five schemes that purportedly advanced the alleged conspiracy's purpose of creating a healthier appearance of the Bank's finances than actually existed:
The Indictment further alleges that Yates and Heine knowingly made 26 false entries in the books, reports, and statements of the Bank with the intent to injure and defraud the Bank. According to the Indictment, Yates and Heine did so by omitting material information about the true status of loans and assets from the Call Reports and reports to the Board.
The jury trial on the charges against both Yates and Heine is scheduled to begin on November 1, 2016.
On January 25, 2016, Yates filed a Motion for Discovery seeking production of 20 categories of information from the government under Rule 16(a) and Brady. Dkt. 99. The Court granted in part and denied in part Yates's Motion for Discovery. Dkt. 182 (March 14, 2016 Order on Defendants' Motions for Discovery). Among other information, Yates requested all disclosures required by Rule 16(a) and all material and information in the government's possession that is material or favorable to Yates on the issue of guilt or punishment, including any evidence that would tend to impeach any government witness, as required under Rule 16(a) and Brady. The Court ordered the government to produce, among other things, all material required under Rule 16(a), Brady, and the Jencks Act. Dkt. 182 at 17.
Yates additionally requested in her January 25, 2016 Motion that the Court order the government to produce all original, unedited witness interview notes in the government's possession under Brady.
In Yates's Motion for Additional Discovery, she requests that the government produce the following information under Rule 16(a) and Brady:
Yates states in her publicly-filed Motion for Additional Discovery that she intends to file a motion to suppress arguing that the government abused "parallel civil proceedings" (referring to a civil lawsuit brought by the Bank against Walsh) and that FBI agents elicited involuntary statements from Yates in violation of her constitutional rights. Yates argues that Request Nos. 1 through 4 seek information material to her anticipated motion to suppress. Yates separately argues that any FDIC-OIG agent's original, unedited notes are material to her defense and thus must be produced by the government.
To determine whether the information Yates seeks is material under Rule 16(a) and Brady, the Court first addresses Yates's arguments regarding her anticipated motion to suppress.
Yates asserts in her publicly-filed Motion for Additional Discovery that she anticipates moving to suppress statements she made during her deposition in the civil case The Bank of Oswego v. Geoffrey S. Walsh, Clackamas County Circuit Court Case No. CV12060128 (the "Walsh case" or "Walsh proceeding"). Yates states that she intends to argue that the Bank's attorney acted on behalf of the government when he took Yates's deposition and that the government thus abused the existence of the Walsh proceeding to elicit incriminating statements from Yates in violation of her Fifth Amendment due process right and her right against self-incrimination.
In the Walsh case, the Bank brought suit against Walsh for misappropriation of trade secrets and breach of the duty of loyalty. Dkt. 215-2 at 9-24 (First Amended Complaint in Case No. CV12060128). The Amended Complaint, filed on July 23, 2012, alleges in part that Walsh engaged in misconduct involving a $1.7 million loan for the benefit of Bank customer M.K. Id. at 13-16. The M.K. loan is also described in the Indictment in this criminal action against Yates and Heine. Dkt. 1 at 5-6. Although the Amended Complaint alleges that Yates as well as Walsh used the Bank's confidential and proprietary information for her own financial and professional gain, Yates is not a named defendant in the Walsh proceeding. Dkt. 215-2 at 17-19.
The Bank's attorney took Yates's deposition pursuant to a subpoena. The deposition began on May 9, 2013.
In support of her argument that the government abused the existence of the Walsh case, Yates discusses case law in which the government itself conducts simultaneous civil and criminal investigations. Generally, "the government may conduct parallel civil and criminal investigations without violating the due process clause, so long as it does not act in bad faith." United States v. Stringer, 535 F.3d 929, 936 (9th Cir. 2008) (citing United States v. Kordel, 397 U.S. 1, 11 (1970)). In United States v. Kordel, the Supreme Court held that the government did not violate the Fifth Amendment rights of corporate executives by using evidence obtained from an FDA civil proceeding in a related criminal prosecution against the executives. 397 U.S. at 1. The Court explained that the FDA did not act in bad faith in requesting information from the executives because the agency regularly does so in its civil investigations. Id. at 6. The Court further reasoned as follows:
Id. at 11-12 (footnotes omitted). Thus, the Court concluded that "[o]verturning these convictions would be tantamount to the adoption of a rule that the Government's use of interrogatories directed against a corporate defendant in the ordinary course of a civil proceeding would always immunize the corporation's officers from subsequent criminal prosecution." Id. at 12-13.
In United States v. Stringer, the Ninth Circuit followed Kordel and held, in part, that the government's use of statements the defendants made to the SEC during a civil investigation in their criminal prosecution for securities violations did not violate their Fifth Amendment right against self-incrimination. 535 F.3d at 938. The Ninth Circuit explained that although the government did not notify the defendants about the parallel criminal investigation, the SEC sufficiently advised the defendants in the civil investigation that any evidence the SEC obtained could be used in a criminal proceeding. Id. at 937-38. The Ninth Circuit concluded that the defendants forfeited any claims regarding the privilege against self-incrimination when they did not invoke the Fifth Amendment during SEC depositions. Id. at 938.
In Stringer, the Ninth Circuit also considered whether the government's use of a parallel investigation violated the defendants' due process and Fourth Amendment rights. Id. at 937-41. The Ninth Circuit found that the SEC's civil proceeding against the defendants was not a pretext for the criminal investigation, and thus no due process violations occurred. Id. at 939. With regard to the defendants' Fourth Amendment claims, the Ninth Circuit explained that a consensual search may be unreasonable under the Fourth Amendment "if the consent is obtained by trickery or deceit. . . ." and that "[a] government official must not `affirmatively mislead' the subject of parallel civil and criminal investigations `into believing that the investigation is exclusively civil in nature and will not lead to criminal charges.'" Id. at 939-40 (quoting United States v. Robson, 477 F.2d 13, 18 (9th Cir. 1973)). The Ninth Circuit held that because the SEC did not make any affirmative misrepresentations regarding the civil investigation, the government's actions did not constitute an unreasonable search or seizure. Id. at 940-41.
Yates first argues that FBI agents misled her into believing that she was only a cooperating witness, rather than a suspect, in their criminal investigation. Yates points to an FBI report of a December 13, 2012 telephone interview with Yates. Dkt. 215-2 at 2. The report states that Yates expressed concern that she was under investigation by the FBI. Id. In response, the interviewing agents advised Yates that the investigation was ongoing. Id. Yates argues that because the FBI agents did not explicitly notify her that she was a target or had the possibility of becoming a target in the criminal investigation, the FBI agents' response was in bad faith.
Yates also argues that the Bank's attorney acted on behalf of, and as an agent of the government when he took her deposition in the Walsh case and that unlike in Stringer, she was not advised that statements she made during the deposition could be used against her in a criminal proceeding. The Ninth Circuit instructs that a Fourth Amendment violation might occur when a private person acts "as an instrument or agent of the state" in conducting a wrongful search or seizure. United States v. Black, 767 F.2d 1334, 1339 (9th Cir. 1985) (citing Coolidge v. New Hampshire, 403 U.S. 443, 487-90 (1971)); United States v. Miller, 688 F.2d 652, 656 (9th Cir. 1982)). The critical factors in this analysis are "(1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends." Black, 767 F.2d at 1339 (quoting Miller, 688 F.2d at 657).
In support of her argument that the Bank's attorney was acting as an agent of the government when he took Yates's deposition, Yates points to the fact that FBI agents interviewed the Bank's attorney several times before Yates's May 9, 2013 deposition in the Walsh case. See Dkt. 215-2 at 3-5. For example, on April 30, 2013, the Bank's attorney provided the FBI with information regarding the A Avenue straw buyer scheme described in the Indictment. Dkt. 215-2 at 5. During Yates's deposition less than two weeks later, the Bank's attorney asked Yates about subjects including the A Avenue transaction, the wire transfer to M.K., and the loans to R.C. Dkt. 215-1 at 70-93; 2-69; 94-115. Although the Bank's Amended Complaint alleges that Walsh engaged in misconduct related to the loan to M.K., the Amended Complaint does not explicitly mention the A Avenue transaction or the loans to R.C. The Indictment, however, describes all three subjects.
On June 6, 2013, an FBI agent again interviewed the Bank's attorney. Dkt. 215-2 at 8. During the June 6, 2013, interview, the Bank's attorney notified the FBI agent of Yates's recent deposition. According to the FBI report of the interview, the Bank's attorney commented that Yates's answers during the deposition were evasive and implied that Yates would inappropriately authorize wire transfers for Bank customers. Id.
Yates argues that the requested information will aid her analysis of the nature of the interactions between the Bank's attorney and the government and is thus material to preparing her anticipated motion to suppress. The government disputes that the Bank's attorney worked as an instrument or agent of the government before, during, or after Yates's deposition in the Walsh case, and attaches a declaration from the Bank's attorney to that effect. Yates, however, has presented facts that the Bank's attorney spoke about her deposition with the government and commented upon the potentially incriminating nature of Yates's statements and demeanor during the deposition. Thus, if the government is in possession of communications between the Bank's attorney and the government that the government has not already disclosed in discovery, this information may be helpful to Yates's defense theory that the government "knew of and acquiesced" in her deposition or whether the Bank's attorney "intended to assist law enforcement efforts or to further his own [client's] ends" when he deposed Yates. See Black, 767 F.2d at 1339 (quotation marks omitted).
Yates also asserts that she intends to argue that the FBI agents elicited involuntary statements from Yates by deliberately deceiving her regarding the nature of their investigation and her status as a cooperating witness. According to Yates, she was particularly susceptible to the FBI agents' allegedly misleading approach because of her belief in her own innocence and her lack of experience in the criminal justice system.
Yates does not specifically identify the statements she made to the FBI that she will seek to suppress, nor does she indicate that she was in custody or detained during any of the applicable interviews. Yates also does not provide the Court with any factual details regarding the interviews apart from her December 13, 2012 discussion with the FBI agents during which she expressed concern that she was under investigation. The FBI report of the December 13, 2012 interview does not state that Yates was advised of her right against self-incrimination.
The government may not use a defendant's statements against her at trial if the statements were given involuntarily. United States v. Preston, 751 F.3d 1008, 1010 (9th Cir. 2014). In determining whether a statement was given voluntarily, courts must "take[] into consideration the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation." Id. at 1016 (emphasis in original) (quoting Dickerson v. United States, 530 U.S. 428, 434 (2000)). Some of the factors courts consider include the defendant's age, education, intelligence, and knowledge of her rights; the duration and nature of detention or questioning; and whether physical punishment was used or threatened. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). "Ultimately, the voluntariness determination `depend[s] upon a weighing of the circumstances of pressure against the power of resistance of the person confessing.'" Preston, 751 F.3d at 1016 (alteration in original) (quoting Dickerson, 530 U.S. at 434).
Generally, "the `good guy' approach is recognized as a permissible interrogation tactic." Miller v. Fenton, 796 F.2d 598, 607 (3d Cir. 1986). Thus, an interrogator's sympathetic attitude "is not in itself enough to render a confession involuntary." Id. A confession may be involuntary due to psychological coercion, however, "if other aspects of the interrogation strengthened the illusion that it was non-adversarial in character." Id.; see also Spano v. New York, 360 U.S. 315, 319 (1959) (finding a confession inadmissible where the interrogating officer was the defendant's childhood friend and was directed to "play on [the defendant's] sympathies"). Although law enforcement officers may "make false representations concerning the crime or the investigation during questioning without always rendering an ensuing confession coerced. . . . [F]alse promises stand on a different footing." Preston, 751 F.3d at 1026 (citing Frazier v. Cupp., 394 U.S. 731, 739 (1969)); see also Henry v. Kernan, 197 F.3d 1021, 1027-28 (9th Cir. 1999) (finding a defendant's confession involuntary where detectives made "misleading comments [that] were intended to convey the impression that anything said by the defendant would not be used against him for any purposes").
In Miller v. Fenton, a case that Yates heavily relies upon, a murder confession that the appellant argued was the product of psychological coercion was found by the Third Circuit to be voluntary and thus admissible. 796 F.2d at 601. The Third Circuit described the interrogation in part:
Id. at 601-602. The Third Circuit explained that although the detective's friendly manner and promises of psychiatric help "may have been a form of psychological trickery," those aspects of the interrogation did not affect the voluntariness of the confession. Id. at 612. The Third Circuit reasoned that the defendant's personal characteristics, including his age, intelligence, and previous experience in the criminal justice system, "rendered him resistant" to the detective's persuasive tactics. Id. The Third Circuit also noted that the defendant made remarks throughout the interrogation "that indicate[d] that he knew that this was an ordinary police interrogation, rather than an encounter with a compassionate friend, and that he was aware that a confession would result in criminal prosecution and possibly in conviction and sentence." Id.
According to Yates, her statements to FBI agents were elicited involuntarily because the FBI agents used implied promises to convince Yates that she was a cooperating witness rather than a target or potential target of the investigation.
The government responds that the internal FBI notes and the communications that Yates seeks regarding when she became a target in the investigation are not material to a determination of whether her statements to the FBI agents were voluntary. Yates, however, has identified evidence that she expressed concern to FBI agents on December 13, 2012, whether she was a target in their investigation, and that the FBI agents responded in a vague manner. Thus, to the extent the requested information may reveal that Yates was in fact a target of the criminal investigation on December 13, 2012, the requested information may be helpful to Yates's defense theory that the FBI agents' allegedly vague response misled Yates.
Yates argues that she is entitled to the production of any FDIC-OIG agent's original, unedited witness interview notes under Rule 16 and Brady because the notes are material to the preparation of her defense. Yates asserts that the Memorandum of Interviews ("MOIs") disclosed to the defense are not a complete record of the interviews conducted by the FDIC-OIG agent. Yates points to the fact that each MOI begins with the statement that "[the witness] voluntarily provided the following information considered relevant." Dkt. 215-2 at 26 (Jan. 24, 2013 MOI of Heine Interview), 30 (Jan. 24, 2013 MOI of B.C. Interview) (emphasis added). Thus, Yates argues that the FDIC-OIG agent must have left out information he unilaterally decided was not relevant to the investigation. Yates additionally asserts that the notes "will likely contain" impeachment material, and that "it is expected" that the notes will support Yates's defense that Heine and others manipulated the civil investigation in order to blame Yates for any misconduct regarding the operation of the Bank. Dkt. 208 at 23 (Yates's Motion for Additional Discovery).
The government responds that the phrase "the following information considered relevant" is standard boilerplate language. Yates does not provide any reason for the Court to find otherwise. Yates also does not provide the Court with any facts to support her argument that the unedited witness interview notes may contain impeachment material or that they would otherwise contain relevant information not included in the interview summaries.
The Court notes, however, that under Rule 16, the government must disclose to the defendant the following:
Rule 16(a)(1)(B)(ii) (emphases added). In United States v. W. R. Grace ("W. R. Grace II"), 401 F.Supp.2d 1087 (D. Mont. 2005), the court held that in the absence of Ninth Circuit law to the contrary, the plaining meaning of Rule 16(a)(1)(B)(ii) "requires the production of rough interview notes containing the substance of relevant oral statements by the defendants . . . ." Id. at 1091.
Yates makes five specific requests. The Court addresses each request in turn.
In Request No. 1, Yates asks that the government produce the following information: All documents (whether handwritten or electronic) containing or memorializing communications or interactions between the Bank (through any of its representatives, including its counsel) and any Department of Justice entity, including, but not limited to: (i) FBI agents' timesheets; (ii) FBI agents' calendar entries (whether recorded in hard copy, electronically, or on a personal device);
The government agrees to produce any communication from the Bank to the government as well as any communication to the Bank from the government that have not already been produced in discovery. The government, however, takes the position that the use of "including but not limited to" language is unduly vague and expansive, and presumably includes the U.S. Attorney's Office as a "Department of Justice entity." The government objects to this request insofar as it calls for production of internal communications and specifically objects to the production of: (i) FBI agents' timesheets; (ii) FBI agents' calendar entries; (iii) FBI agents' phone records; (iv) FBI lead database information; and (v) notes of prosecutors or agents.
In Request No. 2, Yates asks that the government produce the following information:
The government objects to Request No. 2 insofar as the request calls for production of internal communications. The government maintains its objection to the production of FBI lead database information. The government, however, has agreed "to produce any documents which demonstrate that the FBI or OIG-FDIC sought to `mislead' Yates about her status in the investigation . . . . [and] any internal documents indicating that she was a subject or target," should such documents exist. Dkt. 220 at 13 (Government's Response to Yates's Motion for Additional Discovery). Additionally, the government states that it "has asked the FBI to review its internal reports and if those reports contain Brady information or statements of Yates not otherwise memorialized in a 302 or MOI, that information will be disclosed." Id. at 15.
Request No. 2 Ruling: Yates's Request No. 2 is GRANTED IN PART. The government must produce any documents that demonstrate that the FBI or the FDIC-OIG sought to mislead Yates concerning her status in the investigation, should any such documents exist. Additionally, the government must produce any internal documents that indicate whether Yates was a subject or target in the investigation, should any such documents exist. Finally, if any of the FBI's internal reports contain Brady information or statements of Yates that have not yet been disclosed in discovery, that information or statement(s) must be disclosed. The remainder of Request No. 2 is DENIED.
In Request No. 3, Yates asks that the government produce the following information:
The government objects to Request No. 3 insofar as the request calls for production of internal communications or internal Department of Justice and U.S. Attorney's Office work product. The government specifically objects to subsection (i) that requests the production of FBI agents' notes of contacts with Yates, and to the production of prosecutors' notes. The government agrees to produce all email correspondence between the FBI and Yates or Yates's attorneys to the extent that it has not already been disclosed in discovery.
In Request No. 4, Yates asks that the government produce the following information:
The government has agreed to produce any written policy concerning how government agents are to respond when asked about the nature of an investigation, should any such policy exist.
In Request No. 5, Yates asks that the government produce the following information:
The government objects to the production of FDIC-OIG agents' notes of interviews. The government, however, acknowledges its duty to review these notes as well as the notes of the FBI agents involved in this case for Brady material.
Yates's Motion for Additional Discovery (Dkt. 208) is GRANTED IN PART AND DENIED IN PART as described in this Opinion and Order.
In Tweel, the Fifth Circuit was concerned about the government misleading an individual into thinking that he was providing information for a civil audit when the government was in fact gathering information for a criminal investigation. Thus, Yates's conversations with FBI agents during the course of their criminal investigation may be distinguished from the defendant's interactions with the IRS agent in Tweel. Yates argues, however, that under Tweel and Robson, the government had a continuing obligation to notify Yates about her target status following her December 13, 2012 statement that she was concerned whether she was under investigation by the FBI.
