Diamonds in the Rough Notes: The Importance of Obtaining Informal Notes of Witness Statements

Diamonds in the Rough Notes: The Importance of Obtaining Informal Notes of Witness Statements

8.16.2023

By Dan Davidson

For the trial attorney, familiarity with prosecution witnesses’ statements is fundamental to effective trial preparation. A recent federal health care fraud case in Texas underscores just how critical it is for defense counsel to vigorously pursue discovery of witness statements – not just those formalized in memoranda written by government agents, but also those contained in the rough notes taken by agents and prosecutors while investigating and preparing for trial.

In United States v. Swiencinski,[1] the district judge declared a mistrial this past December – 21 days into trial – and the government subsequently moved to dismiss the indictment against one of the defendants. These dramatic actions were the result of an array of failings on the government’s part, but key among them were shortcomings related to notes of and communications about prosecution witnesses’ statements.

While the court recently issued an order finding that the government’s “conduct was not malicious or intentionally fraudulent” and denied the defendants’ motions, arguing retrial was barred by the Fifth Amendment’s Double Jeopardy clause, the case is instructive for defense counsel at any stage of trial preparation.

Swiencinski demonstrates why defense counsel must not be satisfied with simply obtaining from the government formal memoranda of witness interviews (which, as will be discussed, is often difficult in the first instance). Conscientious defense counsel must seek discovery of informal notes underlying those memoranda, as well as communications between government agents, prosecutors and prosecution witnesses related to the witnesses’ statements to the government. Those notes and communications may provide effective impeachment material and, as Swiencinski shows, may even offer grounds to upend the government’s case.

What Happened in Swiencinski?

In numerous filings, many of which remain under seal, defense counsel in Swiencinski point to an array of examples of the government’s alleged misconduct. But among the reasons the court declared a mistrial were several issues directly related to notes of and communications about prosecution witness interviews.

One example involved a prosecution witness who prepared a critical summary exhibit. During that witness’s testimony, he stated he had only worked with a coworker in preparing the summary exhibit. But his further testimony made obvious that preparation of the exhibit was, instead, an iterative process that involved sharing drafts with prosecutors, receiving feedback from them, and making changes based on that feedback.[2] Notes and communications between prosecutors, agents and the witness would have made those facts clear to defense counsel before the witness testified, but those materials were only disclosed by the government after the witness testified and the court ordered the production.

Further, it came to light during trial that some key prosecution witnesses made statements to the government that were either obvious impeachment material or even exculpatory – yet those statements were not disclosed to the defense. One witness told the government that he was addicted to narcotics during the time period at issue in his testimony. Another witness gave the government an explanation for one defendant’s conduct that was consistent with that defendant’s theory of the case and inconsistent with the government’s.[3]

Why did defense counsel not know about those two statements before the witnesses took the stand? Because the statements were not contained in FBI agents’ FD-302s, their formal memoranda of witness interviews. Instead, the statements only appeared in the agents’ rough notes, upon which those 302s were based. And those rough notes were never disclosed by the government. In fact, the prosecution team subsequently acknowledged that they had not even reviewed their agents’ rough notes to determine whether the 302s produced in discovery were consistent and complete accounts of witnesses’ statements.[4]

Legal Framework

Swiencinski makes abundantly clear that the content of agent notes can significantly impact a criminal case’s outcome. The trouble for defense counsel is that agent notes are difficult to obtain through formal pre-trial discovery mechanisms.

To the extent that Federal Rule of Criminal Procedure 16 makes discoverable certain statements, the rule expressly refers to statements of the defendant, not other government witnesses.[5] Rule 16 also requires disclosure of items “material to preparing the defense,”[6] but that requirement “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 [or] statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500 [the Jencks Act].”[7]

Neither the Jencks Act nor Rule 26.2 – two mechanisms for discovery of witness statements – offers a clear path for defense counsel to obtain government agents’ rough notes. Both the statute and rule rely on a substantially similar definition of “statement,” which generally means a written statement the witness adopts (for example, by signing it); the witness’s grand jury testimony; or “a substantially verbatim, contemporaneously recorded recital of the witness’s oral statement that is contained in any recording or any transcription of a recording.”[8] The “substantially verbatim” requirement can serve as an obstacle to discovery of rough notes.[9]

Effective Pre-Trial Negotiation Is Critical for Obtaining Agent Notes

In the face of this challenging legal landscape, defense counsel should seek to negotiate with the government a pre-trial discovery plan that calls for disclosure of agents’ rough notes of witness statements. Such negotiations should not only seek the rough notes, but also communications among and between prosecutors, law enforcement and witnesses pertaining to the notes, the witnesses’ statements and/or related trial preparation. As the government acknowledged in Swiencinski, in criminal cases, “sometimes there are substantive communications that are out there, whether by text [or] e-mail,” that are related to witness statements.[10]

Defense counsel should understand the policies and practices of the particular U.S. attorney’s office prosecuting their client. That office might, as a matter of policy, disclose agents’ rough notes pre-trial.[11]

Requests to the government for agents’ rough notes should be made early, often, in writing and on the record. If the government refuses to disclose the notes and issues arise later, defense counsel will have gained credibility by flagging those issues for the court earlier in the proceedings. That appears to have happened in Swiencinski, when the court – during a hearing addressing the government’s discovery failures – observed that the defense put the issue on the court’s radar before the trial started.[12]

What leverage does defense counsel have to negotiate disclosure of agents’ rough notes when, as discussed above, those notes may be difficult to obtain through statutory discovery mechanisms? First, federal prosecutors should be reminded that the Justice Manual calls for the government to go beyond what is strictly required under Brady and its progeny when making disclosures of exculpatory and impeachment evidence.[13] In particular, the Justice Manual instructs prosecutors to memorialize “[m]aterial variances in a witness’s statements” and provide those to defense counsel.[14]

Perhaps the most persuasive argument for pre-trial discovery of agents’ rough notes is Swiencinski itself and cases like it. It is no exaggeration to say that the failure to disclose rough notes in Swiencinski put the prosecution team’s careers in jeopardy. What prosecutor would want to repeat that mistake?

Defense counsel in white-collar or other nonviolent cases can further point to the fact that witness safety concerns are unlikely to be implicated by pre-trial disclosure of rough notes, which in other cases may not be a persuasive argument. And as the government acknowledged during Swiencinski, in complex white collar cases it may be difficult for the prosecution team to spend the time required to compare all 302s and corresponding rough notes. It would be more efficient – and likelier to result in a fair trial – if defense counsel were given the opportunity to conduct that comparison and take issue with any discrepancies between the 302s and notes before trial commences or on cross-examination.

If the government persists in refusing to disclose rough notes and communications regarding witness interviews, defense counsel should not cease their pressure once the trial starts. Indeed, the typical flurry of trial preparation is likely to generate precisely the sort of material defense counsel should strive to obtain. And again, the Justice Manual calls for prosecutors to disclose exculpatory evidence, impeachment material and “material variances” in witnesses’ statements that come to light during trial preparation.[15]

Conclusion

A concerning takeaway from Swiencinski is that the circumstances that led to the mistrial are unlikely to be isolated. Indeed, given the government’s acknowledgment that it may try cases to verdict without itself ever comparing 302s against rough notes – let alone disclosing those rough notes to defense counsel – one wonders how many convictions have been obtained while inconsistent or even exculpatory witness statements were sitting in the government’s file.

The lesson for defense counsel is clear: never be satisfied with simply obtaining formal memoranda of witness statements. That may be especially important in the post-COVID era, where there remains a backlog of pending cases that were put on hold or otherwise disrupted by the pandemic.[16] And pandemic or not, complex white-collar cases will often take years from investigation to trial, during which time the team of prosecutors and agents may completely change. In Swiencinski, the government suggested such turnover was in part responsible for its discovery violations.

If some good is to come from Swiencinski, perhaps prosecutors will be increasingly amenable to disclosing to the defense notes and communications about witness statements pre-trial. Armed with Swiencinski, defense counsel should aggressively push for such disclosures.

[1] 4:18-cr-00368 (S.D. Texas 2022).

[2] Dkt. 418 at 43–44.

[3] Dkt. 467, 467-1.

[4] Dkt. 418 at 36.

[5] Fed. R. Crim. P. 16(a)(1)(A), (B).

[6] Fed. R. Crim. P. 16(a)(1)(E)(i).

[7] Fed. R. Crim. P. 16(a)(2).

[8] Fed. R. Crim. P. 26.2(f)(2); 18 U.S.C. § 3500(e)(2).

[9] See, e.g., United States v. Diaz-Osuna, 2016 WL 9450414, at *2 (S.D. Miss. Apr. 6, 2016) (citing United States v. Edwards, 702 F.2d 529, 531 (5th Cir. 1983)).

[10] Dkt. 418 at 18.

[11] See Dkt. 418 at 38 (the Swiencinski lead prosecutor described that as being the practice in the Central District of California).

[12] See Dkt. 418 at 23.

[13] See, generall,y Justice Manual (JM) 9-5.001.

[14] JM 9-5.002(B)(8)(a).

[15] JM 9-5.002(B)(8)(b).

[16] See, e.g., U.S. v. Walls, 23-6019 (2d Cir. June 5, 2023) (mistrial granted after FBI agent testified that, while preparing to testify at trial in December 2022, he realized he had never turned over files he thought he had disclosed in 2019).