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United States v. Woods

United States District Court, W.D. Arkansas

January 24, 2018




         Currently before the Court are Defendant Randell Shelton's Motion to Compel (Doc. 270) and the Government's Response (Doc. 276) in opposition; the Government's Motion to Quash In Personam Subpoenas (Doc. 271) and Mr. Shelton's Response (Doc. 275) in opposition; and the Government's Motion to Quash Request for Production of Certain Information (Doc. 273) and Mr. Shelton's Response (Doc. 277) in opposition. Each of these three Motions is GRANTED IN PART AND DENIED IN PART as described below.

         I. BACKGROUND

         A hearing is set to be held in this matter at 9:00 a.m. tomorrow, January 24, 2018. The purpose of this hearing is to receive evidence on the matter of 79 covert recordings made by a Government witness named Micah Neal (recordings which were disclosed by the Government to the Defendants in this case on November 15, 2017, only a few weeks before trial was set to begin in this case), and on the related matter of the laptop that FBI Special Agent Robert Cessario used to access these recordings. Each of the instant Motions pertains in some way to tomorrow's hearing. All three Motions were filed last week on January 19, and all three Responses thereto were filed yesterday on January 23. These Motions are now ripe for decision.

         II. MR. SHELTON'S MOTION TO COMPEL (Doc. 270)

         On January 19, Mr. Shelton filed a Motion to Compel, asking this Court to order the Government to produce to him various materials. Mr. Shelton's Motion begins by stating that "[i]n accordance with Local Rule 7.2, " Mr. Shelton's counsel "have in good faith conferred or attempted to confer with the government's attorneys in an effort to resolve this dispute, but the government's attorneys have not responded to them regarding these issues and as a result the parties are unable to resolve their disagreement without the intervention of the Court." See Doc. 270, ¶ 1. The Court would observe at the outset that Local Rule 7.2(g) requires parties filing discovery motions to state that they "have conferred in good faith on the specific issue or issues in dispute"- not that they have attempted to confer. Mr. Shelton's Motion does not provide any details of this conferral, but the Government's Response describes an email from Mr. Shelton's counsel to the Government on Friday, January 5, a Government email in response to Mr. Shelton's counsel on Monday, January 8, a Government discovery production on January 12, another email from Mr. Shelton's counsel to the Government at 9:08 p.m. on January 18 requesting additional discovery, a Government email in response at 10:00 a.m. on January 19, and another email from Mr. Shelton's counsel half an hour later, followed by the filing of the instant Motion later that same day. See Doc. 276, ¶¶ 4-10. Under ordinary circumstances, this is not the sort of dialogue that this Court would consider sufficient to satisfy Local Rule 7.2(g)'s requirement of having "conferred in good faith" prior to filing a motion to compel. Rather, it has the appearance of having been arbitrarily cut short by the movant. The Court also observes that despite Local Rule 7.2(a)'s requirement that a motion like this one be accompanied by a "brief consisting of a concise statement of relevant facts and applicable law, " Mr. Shelton's Motion does not cite to a single rule, statute, order, case, or other legal authority to explain why he is entitled to any of the discovery he seeks.

         Ordinarily, these deficiencies might be sufficient grounds to deny Mr. Shelton's Motion. See Local Rule 7.2(g). Here, the Court recognizes that the evidentiary hearing for which Mr. Shelton seeks the requested materials was less than a week away at the time he filed his Motion, and that Mr. Shelton's counsel was thus operating under an unusual time crunch. Accordingly, the Court is not going to deny Mr. Shelton's Motion summarily. But Mr. Shelton's requests will nevertheless largely be denied, because most of them are far too broad. And the Court highlights the aforementioned deficiencies simply to observe that this problem of overbreadth might have been avoided if the Motion had been preceded by a more meaningful conferral process and was accompanied by citation to legal authority.

         Mr. Shelton requests five sets of material. The first set is "all of Cessario's text messages from February 8, 2016 to present in an unaltered, unedited, complete, native or source format." (Doc. 270, ¶ 5). Mr. Shelton does not explain, and the Court does not understand, how Mr. Cessario's actions with respect to the recordings and the laptop at issue in this hearing could entitle Mr. Shelton to every single text message Mr. Cessario has sent or received over the last two years. This request is far too broad. Therefore it will be denied.

         Mr. Shelton's second request is for "all emails from both Cessario's FBI email accounts . . . and from his personal [Yahoo] email account that are in the government's possession that refer to this matter." See Id. at ¶ 7. It is not clear to the Court what Mr. Shelton means by "this matter"-the relatively narrow matter of the Neal recordings or of Mr. Cessario's laptop, or alternatively, the entire investigation of which the instant case is but one relatively small part, or instead, something somewhere in between these distant poles. It is also not clear to the Court whether Mr. Shelton is simply asking the Court to compel the Government to comply with its preexisting and ongoing discovery obligations in this case, see Doc. 248, p. 2, or whether he is asking for something more far-reaching than that. In either event, he does not explain why Court intervention is even necessary. Therefore, this request will be denied.

         Mr. Shelton's third request is for "all emails from any other case agent or government employee that references the government's investigation or prosecution of this matter." (Doc. 270, ¶ 7). This request is denied for the same reason his second request is denied.

         Mr. Shelton's fourth request is for "all rough notes in the government's possession regarding alleged co-conspirator Micah Neal." Id. at ¶ 8. The Court does not know what Mr. Shelton means by "rough notes." But as the Government correctly points out, this Court has previously ordered that "[e]xcept as provided in Federal Rule of Criminal Procedure 16(a)(1), the Government is not obligated to disclose 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, " (Doc. 59, p. 6), and the Eighth Circuit has previously observed that "[r]eports, memoranda, or other internal government documents created by a government agent in connection with the investigation or prosecution of the case are immune from discovery, " United States v. Robinson, 439 F.3d 777, 779-80 (8th Cir. 2006). Mr. Shelton does not offer any explanation as to why he should be entitled to the production of work product that is ordinarily off-limits, other than to hint, without elaboration, that it has something to do with Mr. Cessario's "destruction of evidence from his computer." See Doc. 270, ¶ 8. The Court does not see the connection. Therefore, this request is denied.

         Mr. Shelton's fifth and final request is for "any documents, memoranda, emails, or other communications of any kind that are in the government's possession and that reference the health information that was allegedly the basis, at least in part, for Cessario to 'wipe' his computer on December 7, 2017." Id. at ¶ 9. Unlike the previous four requests, this request is specific enough to put the Government on notice of what is being requested. And unlike the previous four requests, it is narrow enough to encompass only materials that are relevant to tomorrow's hearing. The Government states in its Response that "the United States is not in possession of any documents or memoranda regarding the medical condition of SA Cessario in addition to" what it has already given to Mr. Shelton. See Doc. 276, ¶ 48. But the Court will grant this request, to the effect that if the Government comes into possession of such documents or memoranda at some point in the future, then they must be turned over to Mr. Shelton, subject to the Protective Order (Doc. 14) in this case.


         On January 16, Mr. Shelton's counsel caused subpoenas to be served on Kenny Elser, Kyra Jenner, and Aaron Jennen, all of whom are attorneys for the Government in this case, commanding them to testify at tomorrow's hearing. Three days later, the Government filed a Motion to Quash these subpoenas. Mr. Shelton filed his Response yesterday. The Court will grant the Government's Motion with respect to Ms. Jenner, because Mr. Shelton ...

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