MICHAEL R. BARRETT, District Judge.
This matter is before the Court on Defendant's: (1) Motion to Dismiss for Lack of Jurisdiction ("Motion to Dismiss") (Doc. 41); and (2) Motion to Compel Brady Material ("Motion to Compel") (Doc. 58). Both motions are fully briefed, with the Parties recently offering supplemental briefing on the Motion to Dismiss. The Motions are now ripe for disposition.
On June 21, 2017, Defendant Roger Skaggs was indicted on one count of sexual abuse of an incapacitated person. (Doc. 1). The events that are the subject of the indictment occurred on October 13, 2013 in Wiesbaden, Germany, where the alleged victim was serving as a military police soldier. Defendant had accompanied the alleged victim, the alleged victim's wife, and their family to Germany, residing with them as a "dependent" family member. After allegedly non-consensual sexual contact between Defendant and the alleged victim, a physical altercation ensued, and Defendant was treated for his injuries in a German hospital. Trial was scheduled to begin on June 18, 2018, but on June 13, 2018 the undersigned declared the Defendant incompetent to stand trial. The trial date will be reset once the Defendant is restored to competency.
In the weeks leading up to the now vacated trial, the Parties finished briefing the Motion to Dismiss and Motion to Compel.
The government asserts that the Court has jurisdiction under the Military Extraterritorial Jurisdiction Act ("MEJA"), 18 U.S.C. §3261(a)(1). However, Defendant contends that the foregoing statute is unconstitutional on its face, and "as applied" to him. Regarding the latter challenge, Defendant argues that there are material fact witnesses (e.g., medical professionals who treated Defendant) beyond the subpoena power of the Court who reside in Germany, the unavailability of which compromises his Sixth Amendment right to present his defense. The Defendant has not fully disclosed how such witnesses are material to his defense, arguing that he is not required to reveal defense strategy in advance of trial. Over the objection of the government, Defendant asks that the Court entertain his arguments ex parte.
Defendant also contends that the government has withheld documents from him in violation of Rule 16 of the Federal Rules of Criminal Procedure, Brady v. Maryland, 373 U.S. 83 (1963), or both. For example, Defendant asserts that he intends to rely on certain medical records during trial to identify and quantify the toxins in the alleged victim's system, which medical records allegedly bear on the alleged victim's reliability as a historian, and his biases and motives to lie about what he ingested on or around October 13, 2013. Defendant argues, however, that there are gaps in the records produced by the government, and seeks an order compelling:
Defendant attributes gaps in the records to the government's failure to produce certain documents in its possession or control, while the government contends that it has produced everything in its "possession." The government also argues that Defendant's Motion to Compel is untimely.
Pursuant to Fed. R. Crim. P. 12(b), "[a] motion that the court lacks jurisdiction may be made at any time while the case is pending." Here, the Court is exercising jurisdiction over Defendant based on the MEJA, which states in relevant part:
18 U.S.C. § 3261 (emphasis added). Defendant argues, however, that: (1) Congress enacted the MEJA without authority; and (2) as applied to him, the MEJA violates his Sixth Amendment right to compulsory process under the United States Constitution. Defendant contends that, because the MEJA is unconstitutional, the Court lacks jurisdiction and must therefore dismiss this case.
"A facial challenge to a legislative Act is . . . the most difficult challenge to mount successfully, [because] the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100 (1987). In an attempt to make such a showing, Defendant argues that Congress' enactment of the MEJA falls outside its powers enumerated in Article I, specifically Congress' power to: (1) regulate commerce with foreign nations; (2) define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; or (3) make rules to regulate the land and naval forces — as accomplished through the Necessary and Proper Clause. According to Defendant, the MEJA is thus unconstitutional. The Court disagrees.
Other courts have rejected Defendant's argument, reasoning that an analysis of Congress' powers enumerated in Article I is misplaced in the context of the MEJA. See, e.g., United States v. Williams, 722 F.Supp.2d 1313, 1317 (M.D. Ga. 2010)(citing United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315-16, 57 S.Ct. 216, 81 S.Ct. 255 (1936)). In Curtiss-Wright, the Supreme Court clarified that while Congress may only legislate pursuant to its powers enumerated in the Constitution, this "broad statement . . . is categorically true only in respect of our internal affairs." 299 U.S. at 315-16. Relying on Curtiss-Wright, the Williams court found that the MEJA was properly promulgated pursuant to Congress' "expansive extraterritorial" authority. Williams, 722 F. Supp. at 1318. Furthermore, even if this Court were required to perform an "enumerated powers analysis," at least one other court has found the MEJA properly promulgated under Article I's provision granting Congress express authority "to raise and support Armies." See, e.g., United States v. Brehm, 691 F.3d 547, 551 (4th Cir. 2012) (concluding that Congress' express authority under Article I to "raise and support Armies," and its general authorities to "make all Laws which shall be necessary and proper" to support the military overseas, are broad enough to reach even defense contractors who are foreign citizens when they assault members of the Armed Forces).
Thus, in the absence of contrary authority, the Court is not persuaded that Congress exceeded its powers in enacting the MEJA.
Defendant argues, in the alternative, that the MEJA is unconstitutional as applied to him. To support this argument, Defendant asserts that his prosecution under the MEJA has resulted in an inability to compel the attendance of material foreign witnesses to testify in his favor, in violation of the Sixth Amendment.
Pursuant to the Sixth Amendment, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor. . . ." U.S. CONST. amend. VI. A compulsory process clause violation requires a "contested act or omission . . . attributable to the sovereign," which "cause[s] the loss or erosion of material testimony . . . favorable to the accused." United States v. Filippi, 918 F.2d 244, 247 (1st Cir. 1990). However, "the Sixth Amendment can give the right to compulsory process only where it is within the power of the federal government to provide it." United States v. Greco, 298 F.2d 247, 251 (2d Cir. 1962). Accord: United States v. Zabaneh, 837 F.2d 1249, 1259-60 (5th Cir. 1988) (rejecting compulsory process challenge to extraterritorial criminal statute because "convictions are not unconstitutional under the Sixth Amendment even though the United States courts lack power to subpoena witnesses"). In other words, a "court's inability to subpoena a foreign witness does not implicate the compulsory process clause, even if that witness could provide testimony that is material and favorable to the defendant." United States v. Korogodsky, 4 F.Supp.2d 262, 268 (S.D.N.Y. 1998) (emphasis added).
To determine the constitutionality of Defendant's prosecution in light of his Sixth Amendment challenge, the government urges the Court to follow the Sixth Circuit's Damra test, requiring a defendant to show that: "(1) the government has exhibited bad faith; and (2) the testimony of the witnesses would be both material and favorable to the defense." (Doc. 46, PageID 275) (citing United States v. Damra, 621 F.3d 474, 489 (6th Cir. 2010)). The Court cannot help but note a slight disconnect in the government's logic. On the one hand, it suggests that Defendant has no Sixth Amendment right to testimony from German witnesses beyond this Court's subpoena power. (Doc. 46, PageID 274). On the other hand, it urges the Court to apply the Damra test to determine whether Defendant's Sixth Amendment right has been or will be violated absent the testimony of the German medical professionals. The government has missed a step, but for reasons stated below the logical leap results in a distinction without a difference.
Where a defendant's Sixth Amendment challenge is based on the unavailability of testimony from a foreign witness, the Damra test is not automatically triggered. This is because the Sixth Amendment is not implicated, unless a government act or omission affects a foreign witness' availability. See, Filippi, 918 F.2d at 247; Greco, 298 F.2d at 251. For example, in Damra, the government controlled the witness' availability via its deportation powers. 621 F.3d at 482. Thus, the Sixth Amendment was implicated. To test whether the witness' unavailability at trial violated the Sixth Amendment, it was necessary first to determine whether the witness had been deported by the government in bad faith. Id. at 485. (characterizing "bad faith" as a "threshold" to the materiality/favorability inquiry; relying on Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L. Ed. 2d 281 (1988)). Upon making the "threshold" bad faith showing, it became necessary for a defendant to show that the deported witness would have been material to the case and favorable to the defendant. Id. (relying on United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446 (1982)). Without bad faith, materiality/favorability were irrelevant. While the Sixth Circuit did not expressly characterize a government act or omission affecting witness availability as the trigger for the Damra analysis, the text of Damra supports this conclusion, because the Sixth Circuit qualified its two-part test by stating that it applies "in the context of deported witnesses." Id. at 489. While the Court is loath to confuse parties by characterizing a government "act or omission" as the "threshold to threshold" inquiry of whether the government has exhibited bad faith, a "government act or omission" is — logically — the unstated "threshold to the threshold" nonetheless. Stated more simply: there must be some government act or omission impacting witness availability — via deportation powers or otherwise — to even trigger the two-part Damra test.
By urging this Court to apply Damra, the government is technically allowing Defendant to skip the intermediate step of showing that the government holds some degree of power over the foreign witness' availability, thereby triggering the Sixth Amendment and the Damra test prematurely. Perhaps the government believes this approach is harmless to the United States' position, because it assumes that the first prong of Damra (i.e., governmental bad faith) can never be met where the government holds no power over the foreign witness' availability (i.e., the above-mentioned "distinction without a difference"). Even so, it is important for the courts to be precise with their analyses. Because Defendant has not shown that the foreign witness' availability has been impacted by a government act or omission, he is not entitled to a Damra analysis. For example, if Defendant were able to show that a foreign witness wished to testify voluntarily but has been prevented from entering the country, the Court would apply the Damra test. See, e.g., Filippi, 918 F.2d at 247 (observing that the witness "would have willingly appeared at trial" so "the onus on the United States was not to compel the attendance of [the witness], but merely to make it possible by requesting a Special Interest Parole from the INS"). Absent such circumstances, however, the Court is not convinced that Damra applies.
Nor is the Court convinced that Defendant's proposed alternative test is appropriate. Defendant argues that the Damra test should be modified to drop the "bad faith" requirement. Without addressing Youngblood — which is the Supreme Court case from which the Sixth Circuit derives the "bad faith" prong of the two-part Damra test — Defendant essentially asks the Court to only assess whether the testimony of the foreign national residing beyond this Court's subpoena power would be material and favorable to the Defendant. Defendant relies on an unpublished Sixth Circuit opinion from 2001, which case has no bearing on the constitutional implications of a foreign witness' unavailability to testify at trial. (Doc. 48, PageID 287) (citing Cunningham v. Stegall, 13 F. App'x 286 (6th Cir. 2001)). Furthermore, adopting the Defendant's one-part standard would be to tacitly recognize a Sixth Amendment right to the testimony of foreign nationals beyond this Court's subpoena power, in contravention of leading authority. See, Filippi, 918 F.2d at 247; Greco, 298 F.2d at 251; Zabaneh, 837 F.2d at 1259-60. The Court declines to do so, because: absent a government act or omission affecting the availability of a witness, a "court's inability to subpoena a foreign witness does not implicate the compulsory process clause, even if that witness could provide testimony that is material and favorable to the defendant." Korogodsky, 4 F. Supp. 2d at 268 (Scheindlin, J.) (emphasis added). Accord: United States v. Epskamp, No. 15-2028-cr, 2016 U.S. App. LEXIS 14472, at *5 (2d Cir. Aug. 5, 2016) (performing no materiality/favorability analysis, where the Sixth Amendment was not implicated because the government was powerless "to secure the testimony of an individual incarcerated in another country"); U.S.A. v. Boyajian, No. CR 09-933(A)-CAS, 2014 U.S. Dist. LEXIS 166806, at *45 (C.D. Cal. Nov. 26, 2014) (performing no materiality/favorability analysis, where the Sixth Amendment was not implicated because the government was powerless to compel the attendance of Cambodian clerks of court).
In sum, due to the absence of circumstances indicating that a government act or omission has impacted a witness' availability, the Court finds the Damra test inapplicable. Thus, Defendant's request that the Court hear his materiality/favorability arguments ex parte is
The Motion to Dismiss is
Defendant has moved to compel the production of three categories of documents under Rule 16 of the Federal Rules of Criminal Procedure or Brady.
At the outset, the Court will address the timing of Defendant's Motion to Compel. The government argues, persuasively, that Defendant delayed by filing his Motion to Compel only weeks before trial. Even on a hypothetical expedited briefing schedule, with a hypothetical instantaneous ruling, the Court is doubtful that the government could have complied with any order compelling the production of additional documents — the bulk of which presumably reside in Germany — in time for a trial that was scheduled to begin on June 18, 2018. Indeed, when the Court held its motions hearing on April 30, 2018, the Court was not advised by Defendant of any perceived defects in the government's pretrial disclosures. In arguing that the Motion to Compel is untimely, the government also hints at a waiver argument, by observing that Defendant forewent earlier opportunities to raise discovery issues with the Court and instead opted to raise them on the brink of trial. While the Court recognizes the government's concern, the current reality is that trial has been delayed while Defendant is restored to competency. Accordingly, the Court will set aside its concerns with the timing of Defendant's Motion to Compel and instead address whether the Defendant is entitled to the requested documents under Rule 16, Brady, or both— notwithstanding timeliness issues that might otherwise have caused this Court to exercise its discretion to deny relief.
In sum, the government argues that, notwithstanding the requirements of Rule 16 and Brady, it has produced everything in the prosecution's actual possession; Defendant argues that the government "controls" additional, material documents that have been withheld, triggering the government's production obligations.
Defendant moves to compel medical/psychiatric records under both Rule 16 and Brady. Rule 16 only applies to documents expressly "requested" by a Defendant, and the government contends that Defendant never "requested" the alleged victim's medical records. However, the Defendant requested the alleged victim's Official Military Personnel File ("OMPF"), and went on to state that he "believe[d]" the file would include medical records. (Doc. 58, PageID 494-95). While the Defendant would be well served to word requests for medical records more exactly in the future, and to expressly include alternative requests for medical records to the extent they are not included in the requested file, the Court believes that Defendant's imprecisely worded demand was still a document request for the alleged victim's medical records nonetheless. Thus, the Court will conduct a Rule 16 analysis.
"The Sixth Circuit has [held] that discovery afforded under Federal Rule of Criminal Procedure 16 is limited to the categories of evidence expressly referred to in the Rule." United States v. Ledbetter, No. 2:15-CR-080, 2015 U.S. Dist. LEXIS 139826, at *24 (S.D. Ohio Oct. 14, 2015) (citing United States v. Presser, 844 F.2d 1275, 1285 (6th Cir. 1988)). Under Rule 16(a)(1)(E), the government is required to permit inspection of items within its possession, custody, or control if (1) the item is material to preparing the defense; (2) the government intends to use the item in its case-in-chief at trial; or (3) the item was obtained from or belongs to the defendant. United States v. Stamper, No. 1:15cr109, 2018 U.S. Dist. LEXIS 38689, at *7 (S.D. Ohio Mar. 9, 2018). The only category implicated here is the first, i.e., items that are material to preparing the defense. Thus, the next questions are whether the requested medical records are material to preparing the defense and within the government's "possession, custody, or control."
"It is a defendant's burden to make a prima facie showing of materiality in order to obtain disclosure of a document under Rule 16." United States v. Dobbins, 482 F. App'x. 35, 41 (6th Cir. 2012) (quoting United States v. Phillip, 948 F.2d 241, 250 (6th Cir. 1991)). In the context of Rule 16, the Sixth Circuit has made the following observation regarding what makes an item material to "preparing the defense":
United States v. Lykins, 428 F. App'x. 621, 624 (6th Cir. 2011) (emphasis added). Accord: United States v. McCaleb, 302 F. App'x 410, 415 (6th Cir. 2008).
When it comes to balancing the importance of the information withheld, against the evidence as a whole, the Court finds United States v. Castillo instructive— even though it used a Brady rather than Rule 16 framework to do the balancing. In Castillo, the defendant was accused of sexually assaulting the alleged victim in her sleep. No. 16-cr-20344, 2016 U.S. Dist. LEXIS 123792, at *1 (E.D. Mich. Sep. 13, 2016). Specifically, the government "allege[d] that Castillo sexually assaulted A.B. while she was under the influence of prescription sleep aid medication after A.B. had expressly denied him consent." Id. Castillo "acknowledge[d] that A.B. was on sleep medication, but argue[d] that A.B. had previously given him consent to engage in sexual acts with her while she was asleep." Id. at *1-2. In response to Castillo's request for A.B.'s psychiatric records, the government argued that the records were both privileged and "not sufficiently relevant." Id. at *5-7. The Court agreed with the government that "[t]he mere fact that a witness may suffer from a mental illness does not mean that the records of that illness [necessarily] go to [] credibility," but otherwise rejected the government's arguments and authorized a subpoena for the records. Id. at *8-9. In weighing the requested records against the evidence as whole, the Court observed that "the victim is the sole witness in this matter and thus her credibility may be determinative of innocence or guilt[.]" Id. at *8. However, due to the invocation of privilege, the Court first reviewed the records responsive to the subpoena in camera to determine the defendant's entitlement to the records under the confrontation clause. Id. at *9.
Here, Defendant asserts that, given the alleged victim's post-incident history of sleep hallucinations among other episodes, he has a good faith reason to believe there are records pre-dating the incident that implicate the alleged victim's credibility as a historian. Arguably, the potential importance of the records in this case exceeds the potential relevance in Castillo, where there was no evidence of sleep hallucinations. Furthermore, it is important to note that the government offers no arguments refuting the materiality of the requested documents, or otherwise advocating restrictions on the Defendant's access to the requested materials—indeed, the government simply argues lack of "possession," and emphasizes that it has already given Defendant access to all medical/psychiatric records in its "possession." (Doc. 69, PageID 539) ("Specifically, the entirety of the [alleged] victim's medical and mental health records in the government's possession (Bates 000482-003620; over 3,100 pages) was produced to the defendant[.]") (emphasis added). Given the factual parallels to Castillo, and the absence of arguments contra materiality from the government, the Court finds the information withheld sufficiently important when weighed against the evidence as a whole to meet the materiality requirements of Rule 16. Indeed, in a case alleging sleep assault, the undersigned can think of few items of evidence more material to a defendant than evidence of an alleged victim's potential history of sleep hallucinations.
Even though the prosecution may lack "actual" possession of certain medical/psychiatric records, the Court is persuaded that the remaining records may be sufficiently within the government's "control" to warrant disclosure. Neither the government nor the Defendant supply this Court with a test to determine the issue of Rule 16 government control. However, "[i]n order to trigger discovery under this provision, the papers, documents, or tangible objects must be in the actual custody or control of the federal government." 25-616 Moore's Federal Practice — Criminal Procedure § 616.05 (2018). The prosecution is not required to conduct an interagency search for evidence. However, for Rule 16 purposes, material will be considered as being in the possession of the government only if it is in the actual possession of the prosecutor or if the prosecutor has knowledge of and access to the material while it is in the possession of another federal agency. See, e.g., United States v. Happ, No. CR2-06-129(8), 2008 U.S. Dist. LEXIS 125801, at *10 (S.D. Ohio Nov. 25, 2008). The prosecution is deemed to have knowledge of and access to material that is in the possession of any federal agency that participated in the investigation that led to defendant's indictment, or that has otherwise cooperated with the prosecution. Id.; United States v. Santiago, 46 F.3d 885, 893 (9th Cir. 1995) (rejecting district court's finding that the United States Attorney's Office lacked "possession and control" of files residing with the Bureau of Prisons; observing that "the Bureau of Prisons actually contributed to the investigation by locating most of the physical evidence during the initial search," which was sufficient to establish prosecutorial control for Rule 16 purposes).
Here, it is the Court's understanding that the government has already accessed and disclosed portions of the alleged victim's medical/psychiatric records. It is also the Court's understanding that Defendant — although not subject to court-martial due to his civilian status — was at times in the custody or charge of military police soldiers while the alleged victim's accusations were being investigated. April 30, 2018 Tr. (Doc. 51), p. 90 ("And then he was in the hospital for 11 days. At the time, he was under — I think it was Military Police were stationed outside of his room. Obviously, [the agent] and the other officers who were investigating both the incident with [the alleged victim] and the assault of Mr. Skaggs had the ability to obtain those records at that time.").
Based on the information before the Court, the Court finds that the prosecution has Rule 16 control over the requested materials to the extent that they reside with military authorities — even though the material might technically reside within a different government office — because the military participated in the investigation of Defendant and has otherwise cooperated with his prosecution. For Rule 16 purposes, the Court is satisfied that the government has access to the requested medical records, which access the Defendant lacks. Indeed, Defendant has argued that he has no other means of obtaining the remainder of the records, a point which the government does not contest in its opposition brief.
Given the Court's findings on materiality and government control, the Motion to Compel is
Defendant likewise moves to compel the alleged victim's OMPF under both Rule 16 and Brady. Defendant believes that the file is incomplete because it is missing the alleged victim's discharge certificates, among other items. The government contends that it provided the full OMPF "in its possession," and that if Defendant believed certain materials to have been withheld he may obtain them via a subpoena to the U.S. Army Resources Command.
Defendant contends that the requested information is helpful to the defense because, based on the information contained in the medical records that post-date the incident in question, Defendant has a reasonable, good-faith belief that the withheld portions of the OMPF contain records documenting the alleged victim's prescription abuse, blackouts, hallucinations, criminal behavior, failure to successfully complete the Army Substance Abuse Program (ASAP), and disability evaluation. Again, the government offers no arguments contra materiality.
The Court is likewise persuaded that the records are sufficiently within the government's "control" to warrant disclosure, to the extent they reside with military authorities. Thus, the Motion to Compel is
Last, Defendant moves for disclosure of (1) any inconsistent or false statement or information provided by the alleged victim about his drug use and prescription abuse history; (2) any and all arrests, charges, convictions, and underlying police reports that relate to the alleged victim's prescription drug abuse, heroin/methamphetamine use, and alcohol abuse, as well as any police reports that relate to his character for truthfulness and his explosive behaviors; and (3) any exculpatory statements or exculpatory information provided by . . . the alleged victim's wife, or any other potential witness, related to the alleged victim's drug use and prescription use history and the alleged victim's behaviors on the day of the alleged offense.
Defendant does not expressly refer to any specific provision of Rule 16 establishing his entitlement to the foregoing records, so the Court construes this request as his Brady request. With respect to Brady, the "Brady rule is not a discovery device and . . . it confers no pretrial rights or remedies." United States v. Mathis, Case No. CR-1-97-15, 1997 U.S. Dist. LEXIS 24049, at *7 (S.D. Ohio June 2, 1997). Accord: United States v. Hazelwood, No. 1:10 CR 150, 2011 U.S. Dist. LEXIS 69110, at *64 (N.D. Ohio June 28, 2011) ("Brady offers defendants a post-trial remedy, not a pretrial one."). At this juncture, the Court must assume that the government has or will produce all Brady material within its possession — as that term has been interpreted in the
For the foregoing reasons, and consistent with the above:
United States v. Simmons, 38 M.J. 376, 381 (C.A.A.F. 1993). The Court recognizes that Rule 513 of the Manual for Courts-Martial creates certain protections for mental health records where privilege is asserted, but such records residing with military authorities are deemed to be within the possession or control of trial counsel nonetheless.
Here, Defendant is not subject to the jurisdiction of a military tribunal because of his civilian status. However, military authorities participated in the investigation. In this Court's view, it makes little sense — in a case at least partially investigated by military authorities — to place a defendant in a worse position simply because DOJ Special Prosecutors bring the case to trial instead of a JAG.
