DISTRICT OF RHODE ISLAND

DISCOVERY GUIDELINES
OCTOBER 15, 2010
DISCLAIMER
The guidance set forth below is intended to ensure that
AUSAs within this District are aware of and comply with
their discovery obligations. There is to be no public
release of this document. All members of the USAO are
reminded to treat it confidentially, and nothing
contained herein is to be disseminated without the
prior express approval of the Criminal Chief. The
discovery guidelines set forth below do not have the
force of law nor do they create any rights, privileges,
or benefits. See United States v. Caceres, 440 U.S.
741 (1979).
I.

SUMMARY AND BACKGROUND

This policy provides guidance on gathering, tracking,
reviewing and producing information to criminal defendants in
accordance with the Constitution of the United States, statutory
and procedural law, case law, DOJ policy, and local rules. These
duties are defined in the Federal Rules of Criminal Procedure
Rules 12, 12.1, 12.2, 12.3, 16 and 26.2; the Jencks Act; Brady v.
Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S.
150 (1972), and their progeny; USAM 9-5.001 (Disclosure of
Exculpatory and Impeachment Information) and 9-5.100 (Potential
Impeachment Information on Law Enforcement Witnesses); the local
rules; and the court’s Arraignment and Pretrial Discovery Order
(“Discovery Order”). In some respects, this policy requires
broader production than the law and local rules. It counsels
AUSAs to provide broad and early discovery of information and
materials to the extent that broad and early discovery promotes
the just resolution of a case and does not jeopardize witness
safety, national security, or an ongoing criminal investigation.
The responsibility to produce all discoverable information
in a criminal case lies with the AUSA(s) assigned to the case.
To fulfill this responsibility, AUSAs should consider several
matters:

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 • What & when: What are the policies, rules, statutes and
case law that define what must be produced and when it must be
produced? (See II. What Must Be Produced and When)
• Who is part of the prosecution team: AUSAs are obligated
to produce information that is within the possession of the
prosecution team; thus, defining the scope of the prosecution
team is critical. (See III.A. Gathering and Reviewing
Discoverable Information: The Prosecution Team)
• Where to look: Once the prosecution team has been
identified, AUSAs must ensure that all discoverable information
is located, reviewed, and produced as required, including agency,
investigative, and administrative files, CI files, emails, PSRs,
law enforcement Giglio, etc. (See III.B. Gathering and Reviewing
Discoverable Information: What to Review/Request)
• How to produce and track: AUSAs must decide in what form
to produce the discoverable information (bates numbered, hard
copy, e-copy, available for inspection, redacted, etc.), and must
keep a detailed record of all discoverable information produced.
II.

WHAT MUST BE PRODUCED AND WHEN
A.

Federal Rule of Criminal Procedure 16
1.

Government’s Obligations

Rule 16(a) and the court’s Discovery Order set forth
the government’s basic discovery obligations. The Discovery
Order provides that within five days of arraignment, the parties
shall meet and provide each other with written requests for
discovery, unless within five days the party entitled to
disclosure files a waiver of discovery. Rule 16 makes the
government’s discovery obligations contingent upon a defendant’s
request.
The Order also imposes a five day period within which
the government must comply with the defendant’s Rule 16 requests,
and a five day period following the government’s compliance with
Rule 16 within which the defendant must meet his Rule 16
obligations. The defendant’s disclosure obligations are
triggered only if the defendant requests disclosure from the
government.
Under Rule 16(a), the government is required to
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 disclose written and recorded statements of the defendant; the
substance of any oral statements made by the defendant in
response to interrogation by a known government agent; the
defendant’s criminal history; all documents and other tangible
evidence the government plans to introduce in its case-in-chief,
which are material to the defense, or which were obtained from or
belong to the defendant; reports of physical, mental, or
scientific examinations (such as handwriting analysis, drug
analysis, fingerprint reports, etc.) to be introduced by the
government in its case-in-chief or which are material to the
defense; and expert witness disclosures and summaries. Rule 16
explicitly excludes from disclosure witness statements (except as
may be required under the Jencks Act) and internal reports
written by government agents or attorneys in connection with the
investigation or prosecution of the case.
The government’s initial discovery disclosure should be
accompanied by the Office’s standard discovery letter which
tracks the provisions of the court’s Discovery Order. AUSAs
should maintain a record of everything provided to the defense.
This can be done in a variety of ways, including but not limited
to: identifying with specificity in the discovery letter the
materials provided; through a bates stamp system; by maintaining
a duplicate disk of materials furnished to the defense in an
electronic format.
The Office’s standard discovery letter contains the
requisite notice language that triggers the defendant’s discovery
obligations under Rules 16 and 12.1-12.3.
2. Defense Obligations
The defense has discovery obligations as well, although
they are more limited than those imposed on the government. Once
an AUSA has provided discovery to the defense, he or she should
request reciprocal discovery. The Office form discovery letter
makes this request.
Section I(B) of the court’s Discovery Order discusses
the defendant’s discovery obligations. In sum, the defendant is
required to disclose the following within five days of the
government’s discovery disclosures: (1) documents and tangible
objects pursuant to Rule 16(b)(1)(A); (2) any reports of
examination and tests that would be subject to disclosure
pursuant to Rule 16(b)(1)(B); and (3) summaries of expert
testimony that would be subject to disclosure pursuant to Rule
16(b)(1)(C). Discovery of alibi witnesses is governed by Fed. R.
Crim. P. 12.1. (See Section IV below). Discovery of expert
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 testimony regarding the defendant’s mental condition is governed
by Fed. R. Crim. P. 12.2(b). (See Section IV below). If the
defense calls a witness, other than the defendant, at any hearing
in the case, they are required to turn over any witness
statements they have that relate to the subject matter of the
testimony. (See Section IV below).
B.

Brady and Giglio

Brady v. Maryland and its progeny preclude the
government from concealing exculpatory evidence, i.e., evidence
that is “favorable to the accused,” when such evidence is
“material to guilt or punishment.” Giglio v. United States and
its progeny extend Brady to all material information that might
be used to impeach a government witness, such as a plea agreement
between the witness and the government, the witness’s criminal
record, payments to an informant who will testify, or a witness*s
prior inconsistent statements. Giglio material might include
other things such as disciplinary records of a law enforcement
witness. Few things cause as much trouble for a prosecutor as
failing to disclose exculpatory information. There is no “good
faith” exception for a Brady violation.
The United States Supreme Court has held that the
prosecutor bears a personal obligation to ensure that the
investigative files of all law enforcement agencies that
participated in the investigation are reviewed for Brady and
Giglio material. Kyles v. Whitley, 514 U.S. 419 (1995). The
prosecutor will be deemed to have knowledge of material in the
agencies’ files. Thus, AUSAs must review the agencies’ files (or
ensure that the files are reviewed) before indictment. In
addition, within a reasonable period of time prior to trial or an
evidentiary hearing (such as a motion to suppress), the AUSA must
provide the Giglio Coordinator with a draft Giglio letter
containing a list of all potential law enforcement witnesses so
that any Giglio material may be obtained from investigative
agencies. (This issue is discussed in greater detail below.)
Ordinarily, the AUSA should allow for a three-week period to
receive a Giglio response from a law enforcement agency.
It is often unclear whether evidence is exculpatory.
In this District, Brady and Giglio are interpreted broadly. If
an AUSA has any doubt about whether a piece of evidence is
exculpatory, the evidence should be disclosed. Similarly, nonexculpatory neutral evidence, such as the absence of fingerprints
on a gun, should be disclosed as well. AUSAs are encouraged to
seek counsel on these issues from their supervisor, the
Professional Responsibility Officer, or the Giglio Policy
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 Coordinator. Currently, the Professional Responsibility Officer
and Giglio Policy Coordinator is AUSA Terrence Donnelly.
Although a guilty plea will normally bar later claims
that Brady was violated, see Tollett v. Henderson, 411 U.S. 258,
267 (1973), the AUSA is advised that in Ferrara v. United States,
456 F.3d 278 (1st Cir. 2006), the First Circuit held that the
government's failure to disclose a witness's recantation of his
statement constituted impermissible prosecutorial misconduct,
and, because absent the prosecutorial misconduct there was a
reasonable probability that the petitioner would not have pleaded
guilty but, rather, would have rejected the proffered plea
agreement and opted for a trial, a new trial was granted. Thus,
if the AUSA becomes aware of Brady or Giglio material prior to a
change of plea, the material should be provided to the defense.
1.

Law Enforcement Witnesses

Under Supreme Court and other precedent, see Kyles v.
Whitley, 514 U.S. 419 (1995), prosecutors are deemed to have
knowledge of all material in the files of the agencies and police
departments that have participated in the investigation: "the
individual prosecutor has a duty to learn of any favorable
evidence known to the others acting on the government's behalf in
the case, including the police." Id. at 437. Such material
includes the disciplinary files of the agents and police officers
who are prospective government witnesses. In order to comply
with our Brady/Giglio obligations in this regard, as well as to
comply with USAM 9-5.100 (Policy Regarding the Disclosure to
Prosecutors of Potential Impeachment Information Concerning Law
Enforcement Agency Witnesses ("Giglio Policy")), this Office
instituted a policy that seeks the review of personnel and other
law enforcement files that may bear upon the credibility of law
enforcement witnesses.
Once an AUSA identifies law enforcement witnesses in a
particular case, the AUSA must draft Giglio information request
letters for their prospective witnesses and forward those letters
to the Office’s Giglio Coordinator within a reasonable period of
time prior to trial or an evidentiary hearing (such as a motion
to suppress). The Giglio Coordinator will then send a written
request to the agencies or departments that employ the
prospective witnesses, asking the law enforcement agency to
review the witnesses’ personnel files. If the files contain
information that may bear upon the credibility of the prospective
law enforcement witness, that information will be forwarded to
the Giglio Coordinator.
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 If the witness is expected to testify and the disclosed
file material may bear on the witness’s credibility, the Giglio
Coordinator will disclose it to the AUSA on the case.
If the AUSA is advised by the Giglio Coordinator that
potential Giglio material exists, or if the AUSA learns of
potential Giglio material from another source, the AUSA must
consult with the Giglio Coordinator and a supervisor on
procedures for handling and/or disclosing such materials.
If the impeachment value of the file material is clear,
the AUSA will disclose it to the defense, with prior notice made
to the law enforcement witness. The material should be disclosed
in sufficient time for its effective use by the defense at trial
or hearing.
If the impeachment value is unclear, the AUSA will make
an ex parte disclosure, under seal, to the presiding judge
seeking the court’s determination whether the personnel file
material must be disclosed to the defense. A copy of any ex
parte submissions made to the court and the ruling of the court
regarding disclosure should be forwarded to the Giglio
Coordinator.
2.

Informants

Roviaro v. United States, 353 U.S. 53 (1957), and its
progeny mandate the disclosure of the identity of government
informants under a narrow set of circumstances. As a general
rule, the government does not have to disclose the identity of an
informant unless the informant has relevant information that is
helpful to the defense, i.e., he or she was an eyewitness to the
charged offense. As the First Circuit recently reaffirmed,
“[i]t is well-established that the government
has a ‘privilege to withhold from disclosure
the identity of persons who furnish
information of violations of law to officers
charged with enforcement of that law.’
Roviaro v. United States, 353 U.S. 53, 59, 77
S.Ct. 623, 1 L.Ed. 2d 639 (1957). This
privilege is not absolute. ‘Where the
disclosure of an informant's identity, or of
the contents of his communication, is
relevant and helpful to the defense of an
accused, or is essential to a fair

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 determination of a cause, the privilege must
give way.’ Id. At 60-61, 77 S.Ct. 623"
United States v. Cartagena, 593 F.3d 104, 112-113 (1st Cir.
2010).
Informants who merely act as tipsters, and are not
witnesses to the charged conduct, should never be disclosed. For
example, assume narcotics officers use a confidential informant
to make a buy from a drug dealer at the dealer’s home, and based
upon the buy, the officers obtain a search warrant. The officers
find drugs in the house, and the dealer is arrested and
prosecuted on charges pertaining to the drugs discovered during
the search. The government is not obligated to disclose the
informant who made the buy that provided probable cause for the
search. If the dealer is charged for the buy made by the
informant, however, the government would have to disclose the
informant as he is now an eyewitness to the transaction at issue.
Obviously, disclosure of an informant may very well
endanger the safety of that informant and adversely affect other
investigations in which the informant is involved. For these
reasons, where Roviaro does not mandate disclosure of the
informant’s identity, AUSAs must refuse to disclose the identity
of the government informant unless ordered by the court to make
such disclosure.
Prior to disclosing the identity of an informant, the
AUSA must consult with both the agency involved and with the
Criminal Chief or other supervisor.
3.

Non-Law Enforcement Witnesses - Civilians

For purposes of this section, a non-law enforcement
witness is one who is the victim of a criminal offense (e.g. a
bank teller); a person who witnesses the commission of a criminal
act, but is not a participant in that act or a co-conspirator
(e.g. a bystander or passerby); and other persons to whom no
promises, rewards, or inducements have been made.
Prior to any hearing or trial in which an identified
non-law enforcement witness is expected to present testimony, the
AUSA must request the case agent to conduct a criminal history
check for each such person. If the intended non-law enforcement
witness has a criminal history, the AUSA must disclose it to the
defense within a reasonable period of time prior to trial or an
evidentiary hearing and in sufficient time for its effective use
by the defense at trial.
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 4.

Cooperating Witnesses

For purposes of this section, a cooperating witness is
one who is a co-defendant; a co-conspirator; a participant in the
criminal activity who was not charged; a “jailhouse” witness; an
informant who has been advised that their identity may not be
kept confidential and that they may be called to testify; and
other persons to whom promises, rewards, or inducements have been
made.
Prior to any hearing or trial in which a cooperating
witness is expected to present testimony, the AUSA must request
the case agent to conduct a criminal history check for each such
person. If the cooperating witness has a criminal history, the
AUSA must disclose it, along with all other impeachment material,
to the defense within a reasonable period of time prior to trial
or an evidentiary hearing and in sufficient time for its
effective use by the defense at trial.
C.

The Jencks Act

The Jencks Act, 18 U.S.C. § 3500, requires the
government to make “witness statements” available to the defense
after the witness testifies on direct examination at trial. Rule
26.2 extends this requirement to suppression hearings,
sentencings, supervised release hearings, detention hearings, and
probable cause hearings. Rule 26.2 imposes the same requirement
on the defense for all witnesses other than the defendant.
“Witness statements” include writings that the witness made,
signed, or adopted; recordings of the witness; substantially
verbatim writings or recordings by a person interviewing the
witness; and grand jury transcripts.
Though not required by law, local custom and the policy
of this Office is to disclose witness statements before the start
of evidence in the typical case and certainly before a witness
testifies. The timing of the disclosure is left to the
discretion of the AUSA. However, the disclosure should be made
sufficiently in advance of the testimony to allow effective use
by the defense at trial.
AUSAs should be cognizant that an agency report of an
interview of a witness typically is not a “witness statement” –
it is usually not substantially verbatim and has not been adopted
by the witness.
If a witness statement contains Brady material, it
should be disclosed sufficiently in advance of trial to allow the
defense to make use of it. Our obligations under Brady prevail
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 over the timing provisions of the Jencks Act.
Certain material is not covered by the Jencks Act, and
AUSAs may choose not to disclose such items unless, of course,
the material contains exculpatory evidence.
AUSAs should familiarize themselves with the Discovery
Order of the court. In particular, paragraph IV (Jencks Act
Discovery) of that Order specifically addresses the government’s
agreement to provide pretrial discovery of witness statements and
imposes a mandatory reciprocal provision for defense lawyers who
accept Jencks Act material from the government.
D.

Discovery in Title III Cases

In cases where there has been a Title III electronic
intercept of communications, we are obligated to disclose certain
materials pertaining to the wiretap as identified below.
1.
Final copies of all Applications, Affidavits, Orders,
Orders to Communication Providers, in support of the
electronic surveillance, and extensions thereof;
2.
Final copies of all Applications, Orders, and Orders to
Communications Providers in support of pen register and trap
and trace device orders and orders issued pursuant to 18
U.S.C. § 2703 and Fed. R. Crim. P. 41;
3.
A CD rom containing all communications (audio, video,
and any other electronic communications) intercepted
pursuant to the order(s) of the court;
4.
Transcripts of conversations we intend to present at
trial. The timing of such disclosure is governed by the
court’s Discovery Order.
E.

Similar Act Evidence, FED. R. EVID. 404(B)

Because early production of 404(b) evidence may
facilitate the early resolution of a case, AUSAs should consider
whether providing early 404(b) evidence to the defense will help
resolve the case. In accordance with Fed. R. Evid. 404(b), AUSAs
shall provide 404(b) evidence notice sufficiently before trial
so as to provide the defense with an opportunity to object.

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 F.

Expert Notice

The court’s Discovery Order and Rule 16 govern
disclosure of expert testimony. Often, AUSAs are unable to make
immediate full disclosure of expert testimony because the
investigative agency has not completed its analysis of the
submitted evidence. AUSAs should supplement their expert notice
disclosure in sufficient time prior to trial.
III.

GATHERING AND REVIEWING DISCOVERABLE INFORMATION
A.

Where To Look - The Prosecution Team
Department of Justice policy states:
It is the obligation of federal prosecutors in
preparing for trial, to seek all exculpatory and
impeachment information from all members of the
prosecution team. Members of the prosecution team
include federal, state, and local law enforcement
officers and other government officials participating
in the investigation and prosecution of the criminal
case against the defendant.

USAM §9-5.00. This duty to search for exculpatory and
impeachment information extends to information prosecutors are
required to disclose under Federal Rules of Criminal Procedure 16
and 26.2 and the Jencks Act.
In most cases, "the prosecution team” will include the
agents and law enforcement officers within the District of Rhode
Island who are working on the case. In multi-district
investigations, investigations that include both AUSAs and
prosecutors from a DOJ litigating component or another United
States Attorney's Office, parallel criminal and civil
proceedings, or proceedings that are jointly prosecuted with
State authorities, this definition must necessarily be adjusted
to fit the circumstances. In addition, in complex cases that
involve parallel proceedings with regulatory agencies (SEC, FDIC,
EPA, etc.), or other non-criminal investigative or intelligence
agencies, the AUSA should consider whether the relationship with
the other agency is close enough to include it in the prosecution
team for discovery purposes.
AUSAs are encouraged to err on the side of
inclusiveness when identifying members of the prosecution team
for discovery purposes.
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 Cases involving national security, including terrorism,
espionage, counterintelligence, and export enforcement, can
present unique and difficult criminal discovery issues. The
Department of Justice has developed special guidance for those
cases, which is contained in Acting Deputy Attorney General Gary
G. Grindler’s September 29, 2010, memorandum, “Policy and
Procedures Regarding the Government’s Duty To Search for
Discoverable Information in the Possession of the Intelligence
Community or Military in Criminal Investigations.” Prosecutors
should consult that memorandum and their supervisors regarding
discovery obligations relating to classified or other sensitive
national security information. As a general rule, in those cases
where the prosecutor, after conferring with other members of the
prosecution team, has a specific reason to believe that one or
more elements of the Intelligence Community (IC) possess
discoverable material, he or she should consult the National
Security Division (NSD) regarding whether to request a prudential
search of the pertinent IC element(s). All prudential search
requests and other discovery requests of the IC must be
coordinated through NSD.
Although discovery issues relating to classified
information are most likely to arise in national security cases,
they may also arise in a variety of other criminal cases,
including narcotics cases, human trafficking cases, money
laundering cases, and organized crime cases. In particular, it
is important to determine whether the prosecutor, or another
member of the prosecution team, has specific reason to believe
that one or more elements of the IC possess discoverable material
in the following kinds of criminal cases:
!

Those targeting corrupt or fraudulent practices by
middle or upper officials of a foreign government;

!

Those involving alleged violations of the Arms Export
Control Act or the International Emergency Economic
Powers Act;

!

Those involving trading with the enemy, international
terrorism, or significant international narcotics
trafficking, especially if they involve foreign
government or military personnel;

!

Other significant cases involving international
suspects and targets; and

!

Cases in which one or more targets are, or have
previously been, associated with an intelligence
agency.
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 For these cases, or for any other case in which the prosecutors,
case agents, or supervisors making actual decisions on an
investigation or case have a specific reason to believe that an
element of the IC possesses discoverable material, the prosecutor
should consult with NSD regarding whether to make through NSD a
request that the pertinent IC element conduct a prudential
search. If neither the prosecutor, nor any other member of the
prosecution team, has a reason to believe that an element of the
IC possesses discoverable material, then a prudential search
generally is not necessary.
B. What to Review/Request
All evidence and other potentially discoverable
material gathered during the investigation, whether in the
custody of AUSAs of this Office or the custody or control of the
other members of the prosecution team, should be reviewed.
Special care should be given to gathering exculpatory/impeachment
information and witnesses’ statements. Specifically, AUSAs
should review the following:
1.

The agency’s investigative files;

2. In cases where a CI/CW/CS identity must be disclosed
pursuant to Roviaro and its progeny, or where a CI/CW/CS is
expected to testify, the AUSA must review the CI/CW/CS files.
Agencies who make use of confidential informants and cooperating
individuals have their own established procedures for retaining
information about those witnesses;
3. Evidence/information obtained via subpoena, search
warrant, or other legal process. With respect to electronicallystored evidence, including e-mails, sufficient time must be
allotted for a search of hard drives, disks, and other storage
hardware;
4. Evidence/information gathered by civil or regulatory
agencies in parallel investigations;
5. Substantive communications/correspondence about the
case, including e-mails, which must be both preserved and
reviewed;
6. Potential Giglio information about non-law enforcement
witnesses (including declarants whose hearsay statements the
government might seek to introduce at trial).

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 IV.

MISCELLANEOUS DISCOVERY CONSIDERATIONS
A.

Federal Rule of Criminal Procedure 26.2

Rule 26.2 imposes the Jencks Act obligation on the
defense, with the exception of statements of the defendant.
Accordingly, after a defense witness other than the defendant has
testified, the defendant is obligated to disclose any statements
he or she has of the witness that pertain to the subject matter
of the testimony. A failure to produce witness statements within
the custody or control of the defense may lead to the witness’s
testimony being struck. Fed. R. Crim. P. 26.2(e). Rule 26.2
applies not only to trial, but to other proceedings as well,
including suppression or detention hearings, sentencings and
revocation hearings, and habeas proceedings.
B.

Federal Rule of Criminal Procedure 12(b)(4)

Rule 12(b)(4) provides that the government may notify
the defendant at arraignment or soon thereafter of its intention
to use specific evidence at trial to afford the defendant the
opportunity to move to suppress this evidence before trial. It
is in the government’s interest to turn over such evidence well
in advance of trial so that a suppression motion can be litigated
before trial. If the government provides the defense with this
evidence pre-trial, and the defense fails to file a motion to
suppress the evidence, the defendant is deemed to have waived the
suppression issue. Fed. R. Crim. P. 12(b)(3) & (e). If a motion
to suppress is granted pretrial, the government can file an
interlocutory appeal. But, if the court allows a defendant to
raise a suppression motion during trial, perhaps because the
government failed to turn over the evidence in a timely fashion,
the government has no appellate remedy as jeopardy has attached.
Whenever a suppression issue is pending, the AUSA
should ask the court to decide it prior to jury selection so as
preserve the government’s right to appeal. Under Rule 12(d), a
court cannot defer ruling on a pre-trial motion if doing so
adversely affects a party’s appellate rights.
C.

Federal Rules of Criminal Procedure

12.1, 12.2 & 12.3

Rules 12.1, 12.2, and 12.3 require the defendant to
give notice of certain types of defenses.
Rule 12.1 requires the defendant to give written notice
of any intended alibi defense. Before receiving such notice, the
government must make a written request, stating the time, date,
and place of the alleged offense. The defendant’s response is
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 due within ten days and must state specifically where the
defendant was at the time of the offense and provide the names,
addresses, and telephone numbers of all alibi witnesses. Once
the government receives the alibi notice, the government must
disclose the witnesses it will call to rebut the alibi and to
establish the defendant’s presence at the scene of the crime.
The disclosure obligations of the defendant and the government
are continuing. The failure to comply with these notice
provisions may lead to the exclusion of the non-disclosed
witness. However, the court cannot prevent the defendant from
testifying about the alibi even if the defense fails to comply.
Rule 12.2 requires the defendant to provide written
notice of his intention to rely on the insanity defense. His
failure to provide such notice precludes assertion of this
defense. The defendant is also required to provide written
notice of his intention to introduce expert evidence relating to
mental disease or defect at either the trial or the penalty phase
of the case. The rule provides for mental examinations of the
defendant, and contains provisions applicable in the prosecution
of a capital case. Should an insanity or mental defect/disease
defense be raised, the AUSA needs to be thoroughly familiar with
the provisions of Rule 12.2.
Rule 12.3 pertains to a claim of public authority to
engage in the charged criminal conduct, that is, the defendant
claims that he was acting on behalf of a law enforcement or
intelligence agency. The defendant is required to provide
written notice of this defense under seal, and the government
must respond in writing, either admitting or denying that the
defendant exercised the public authority identified in his
notice. The defendant is required to identify all witnesses in
support of his defense, and the government must identify those
witnesses it would call to oppose the defense.

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