UNITED STATES DEPARTMENT OF JUSTICE
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United States Attorney’s Office
for the District of Wyoming
EMPLOYEE HANDBOOK
Section Number: Criminal4
Amended: ?? ?? 2010
SUBJECT:

DISCOVERY POLICY

INTRODUCTION
The District of Wyoming has had a formal written discovery policy since November 15,
1999. That policy was designed to modify the District’s “Open File Discovery Policy” that had been
in existence for many years. On October 19, 2006, the Department amended USAM § 9-5.001 and
that amendment “requires AUSAs to go beyond the minimum obligation required by the
Constitution and establishes broader standards for disclosure of exculpatory and impeachment
information.” Then on January 4, 2010, Deputy Attorney General Ogden issued a memorandum
entitled “Guidance for Prosecutors Regarding Criminal Discovery.” The memorandum directed
USAOs to promulgate discovery polices that addressed certain enumerated issues. As noted in the
memorandum, the new disclosure policies are not intended to establish new disclosure obligations.
The basic discovery parameters set forth in Fed.R.Crim.P. 16 and 26.2, Brady v. Maryland, 373 U.S.
83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and 18 U.S.C. § 3500 (the Jencks Act) still
control a prosecutor’s disclosure obligations.1 This new District policy provides guidance in the
areas of gathering discoverable information, general discovery review, Brady-Giglio review, witness
interviews and note taking, preservation of electronic communications, producing and tracking
discovery and the timing of discovery disclosures.2

1

In addition, the U.S. Attorney’s Manual describes DOJ’s policy for disclosure of
exculpatory and impeachment information. See USAM §§ 9-5.001 ("Policy Regarding Disclosure
of Exculpatory and Impeachment Information") and 9-5.100 ("Policy Regarding the Disclosure to
Prosecutors of Potential Impeachment Information Concerning Law Enforcement Witnesses)
("Giglio Policy").
2

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

 DISTRICT OF WYOMING DISCOVERY POLICY
I.

Gathering Discoverable Information - The Prosecution Team

The first question to be asked in every case is where to look for discoverable information.
Department policy requires prosecutors to seek discoverable information from all members of the
prosecution team. In most cases, the prosecution team will include the federal agents and state and
local law enforcement officers working on the case. USAM § 9-5.001.

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 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.

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.
Page 2

 In determining who should be considered part of the prosecution team, an AUSA must
determine whether the relationship is close enough to warrant inclusion for discovery purposes.
When in doubt, consult with your supervisors and/or the District’s Discovery Coordinator.
Examples include:
!

Multi-district investigations – the prosecution team could include the AUSAs and
agents from the other district(s).

!

State/local agencies – a state and local officer is a part of the "prosecution team" if
the AUSA or federal agents are directing the officer's actions or if the state or local
officer participated in the investigation or gathered evidence which ultimately led to
the charges.

!

Regulatory agencies – the prosecution team could consist of employees from noncriminal investigative agencies such as the SEC and FDIC.

Considerations in determining whether an agency or entity should be considered part
of the "prosecution team":
!

Whether the AUSA or investigative agency conducted a joint investigation or shared
resources with the other agency or entity;

!

Whether the other agency or entity played an active role in the AUSA's case;

!

The degree to which information or evidence has been shared or exchanged with the
other agency or entity; and

!

Whether the AUSA has control over or has directed action by the other agency or
entity.

AUSAs should take an expansive view and err on the side of inclusiveness in deciding who
should be considered part of the "prosecution team." Additional guidance on this issue is set forth
in the DAG’s January 4, 2010, memorandum entitled “Guidance for Prosecutors Regarding Criminal
Discovery.”
II.

Conducting the Discovery Review

To ensure that all discovery is disclosed on a timely basis, generally all potentially
discoverable material within the custody or control of the prosecution team should be reviewed. The
review process should cover the following areas:
A.

The Investigative Agency’s Files: With respect to Department of Justice law
enforcement agencies, with limited exceptions, the AUSA should be granted access
to the substantive case file and any other file or document the AUSA has reason to
Page 3

 believe may contain discoverable information related to the matter being prosecuted.3
Therefore, the AUSA can personally review the file or documents or may choose to
request production of potentially discoverable materials from the case agents. With
respect to outside agencies, the AUSA should request access to files and/or
production of all potentially discoverable materials. The investigative agency’s
entire investigative file, including documents such as FBI Electronic
Communications (ECs), inserts, emails, etc. should be reviewed for discoverable
information. If such information is contained in a document that the agency deems
to be an “internal” document such as an email, an insert, an administrative document,
or an EC, it may not be necessary to produce the internal document, but it will be
necessary to produce all of the discoverable information contained in it. AUSAs
should also discuss with the investigative agency whether files from other
investigations or non-investigative files such as confidential source files might
contain discoverable information. Those additional files or relevant portions thereof
should also be reviewed as necessary.
B.

Confidential Informant (CI)/Witness (CW)/Human Source (CHS)/Source (CS)
Files: The credibility of cooperating witnesses or informants will always be at issue
if they testify during a trial. Therefore, AUSAs are entitled to access to the agency
file for each testifying CI, CW, CHS, or CS. Those files should be reviewed for
discoverable information and copies made of relevant portions for discovery
purposes. The entire informant/source file, not just the portion relating to the current
case, including all proffer, immunity, and other agreements, validation assessments,
payment information, and other potential witness impeachment information should
be included within this review.
If an AUSA believes that the circumstances of the case warrant review of a nontestifying source’s file, the AUSA should follow the agency’s procedures for
requesting the review of such a file.
AUSAs should take steps to protect the non-discoverable, sensitive information
found within a CI, CW, CHS, or CS file. Further, AUSAs should consider whether
discovery obligations arising from the review of CI, CW, CHS, and CS files may be
fully discharged while better protecting government or witness interests such as
security or privacy via a summary letter to defense counsel rather than producing the
record in its entirety. AUSAs must always be mindful of security issues that may
arise with respect to disclosures from confidential source files. Prior to disclosure,
AUSAs should consult with the investigative agency to evaluate any such risks and
to develop a strategy for addressing those risks or minimizing them as much as

3

Exceptions to an AUSA’s access to Department law enforcement agencies’ files are
documented in agency policy, and may include, for example, access to a non-testifying source’s
files.
Page 4

 possible, consistent with discovery obligations. This strategy may well include the
seeking of protective orders from the court in appropriate cases.
C.

Evidence and Information Gathered During the Investigation: Generally, all
evidence and information gathered during the investigation should be reviewed,
including anything obtained during searches or via subpoenas, etc. As discussed
more fully herein, in cases involving a large volume of potentially discoverable
information, AUSAs may discharge their disclosure obligations by choosing to make
the voluminous information available to the defense.

D.

Documents or Evidence Gathered by Civil Attorneys and/or Regulatory
Agencies in Parallel Civil Investigations: If an AUSA has determined that a
regulatory agency such as the SEC is a member of the prosecution team for purposes
of defining discovery obligations, that agency’s files should be reviewed. Of course,
if a regulatory agency is not part of the prosecution team but is conducting an
administrative investigation or proceeding involving the same subject matter as a
criminal investigation, AUSAs may very well want to ensure that those files are
reviewed not only to locate discoverable information, but also to locate inculpatory
information that may advance the criminal case. Where there is an ongoing parallel
civil proceeding in which Department civil attorneys are participating, such as a qui
tam case, the civil case files should also be reviewed.

E.

Substantive Case-Related Communications: “Substantive” case-related
communications may contain discoverable information. Those communications that
contain discoverable information should be maintained in the case file or otherwise
preserved in a manner that associates them with the case or investigation.
“Substantive” case-related communications are most likely to occur (1) among
prosecutors and/or agents, (2) between prosecutors and/or agents and witnesses
and/or victims, and (3) between victim-witness coordinators and witnesses and/or
victims. Such communications may be memorialized in emails, memoranda, or
notes. “Substantive” communications include factual reports about investigative
activity, factual discussions of the relative merits of evidence, factual information
obtained during interviews or interactions with witnesses/victims, and factual issues
relating to credibility. Communications involving case impressions or investigative
or prosecutive strategies without more would not ordinarily be considered
discoverable, but substantive case-related communications should be reviewed
carefully to determine whether all or part of a communication (or the information
contained therein) should be disclosed.

F.

Potential Giglio Information Relating to Law Enforcement Witnesses: AUSAs
should have candid conversations with the federal agents with whom they work
regarding any potential Giglio issues, and they should follow the procedure
established in USAM §9-5.100 whenever necessary before calling a law enforcement
Page 5

 employee as a witness. AUSAs should be familiar with circuit and district court
precedent and local practice regarding obtaining Giglio information from state and
local law enforcement officers.
The following questions, among others, should be asked of all testifying law
enforcement witnesses. Note that the following questions are quite broad; an
affirmative answer to any of these questions does not necessarily mean that a Giglio
disclosure is necessary. The issue of when and whether a Giglio disclosure is
required is governed by USAM §9-5.100:

G.

•

Are you or have you ever been the subject of any allegation or finding of
misconduct?

•

Are you or have you ever been the subject of any administrative allegation of
bias or untruthfulness, including any finding of lack of candor in response to an
administrative inquiry?

•

Are you or have you ever been the subject of any administrative allegation of
bias or untruthfulness that was resolved with a lesser finding, e.g., conduct
unbecoming of an officer?

•

Has any court ever found your testimony to be untruthful (including in civil
proceedings)?

•

Are you or have you ever been the subject of any allegations of excessive force?

•

Have any criminal charges ever been filed against you (regardless of outcome)?

•

Have you ever been named in a lawsuit, i.e., sued anyone or been sued (including
domestic matters)?

•

Did anything happen during this case that could be argued as evidence of your
bias against the defendant(s)?

•

Do you currently have or have you ever had any significant personal relationship
with any of the victims, witnesses (including other police officers, social
workers, or medical professionals), lawyers, judge(s), or defendant(s) in this
case? A significant personal relationship is a relationship, beyond being mere
acquaintances or work colleagues, that could potentially influence your
testimony or create a possible bias toward or against any victim, witness, lawyer,
judge, or defendant.

Potential Giglio Information Relating to Non-Law Enforcement Witnesses and
Fed. R. Evid. 806 Declarants: All potential Giglio information known by or in the
Page 6

 possession of the prosecution team relating to non-law enforcement witnesses should
be gathered and reviewed. That information includes, but is not limited to:
1.

Prior inconsistent statements (possibly including inconsistent attorney
proffers), see United States v. Triumph Capital Group, 544 F.3d 149 (2d Cir.
2008)

2.

Statements or reports reflecting witness statement variations (see below)

3.

Benefits provided to witnesses including:
•
•
•
•
•
•
•
•
•
•
•
•

•
•
4.

Other known conditions that could affect the witness’s bias such as:
•
•
•
•

5.
6.
7.

Dropped or reduced charges
Immunity
Expectations of downward departures or motions for reduction of
sentence
Assistance in a state or local criminal proceeding
Considerations regarding forfeiture of assets
Stays of deportation or other immigration status considerations
S-Visas
Monetary benefits
Non-monetary benefits or services
Assistance in obtaining benefits or services
Non-prosecution agreements
Letters to other law enforcement officials (e.g., state prosecutors,
parole boards) setting forth the extent of a witness’s assistance or
making substantive recommendations on the witness’s behalf
Relocation assistance
Consideration or benefits to culpable or at risk third-parties

Animosity toward defendant
Animosity toward a group of which the defendant is a member or with
which the defendant is affiliated
Relationship with victim
Known but uncharged criminal conduct (that may provide an incentive
to curry favor with a prosecutor)

Prior acts under Fed. R. Evid. 608
Prior convictions under Fed. R. Evid. 609
Known substance abuse or mental health issues or other issues that could
affect the witness’s ability to perceive and recall events

Page 7

 III.

Brady and Giglio4

In accordance with the U.S. Department of Justice’s Brady/Giglio policies set forth in USAM
§§ 9-5.001 and 9-5.100 (revised October, 2006), the United States Attorney’s Office for the District
of Wyoming has adopted the following:
A.

Policy Regarding Disclosure of Exculpatory and Impeachment Information
(“Brady Policy”)
1.

Purpose. Consistent with applicable federal statutes, rules, and case law, the
policy set forth here is intended to promote regularity in disclosure practices,
through the reasoned and guided exercise of prosecutorial judgment and
discretion by attorneys for the government, with respect to the government's
obligation both to disclose exculpatory and impeachment information to
criminal defendants and to seek a just result in every case. The policy is
intended to ensure timely disclosure of exculpatory and impeachment
information so as to ensure that trials are fair. The policy, however,
recognizes that other interests, such as witness security and national security,
are also critically important, see USAM 9-21.000, and that if disclosure prior
to trial might jeopardize these interests, disclosure may be delayed or
restricted (e.g., pursuant to the Classified Information Procedures Act). This
policy is not a substitute for researching the legal issues that may arise in an
individual case. Additionally, this policy does not alter or supersede the
policy that requires prosecutors to disclose "substantial evidence that directly
negates the guilt of a subject of the investigation" to the grand jury before
seeking an indictment. See USAM 9-11.233.

2.

Constitutional obligation to ensure a fair trial and disclose material
exculpatory and impeachment evidence. Government disclosure of
material exculpatory and impeachment evidence is part of the constitutional
guarantee to a fair trial. Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio
v. United States, 405 U.S. 150, 154 (1972). The law requires the disclosure
of exculpatory and impeachment evidence when such evidence is material to
guilt or punishment. Brady, 373 U.S. at 87; Giglio, 405 U.S. at 154.
Because they are Constitutional obligations, Brady and Giglio evidence must
be disclosed regardless of whether the defendant makes a request for
exculpatory or impeachment evidence. Kyles v. Whitley, 514 U.S. 419,
432-33 (1995). Neither the Constitution nor this policy, however, creates a
general discovery right for trial preparation or plea negotiations. U.S. v.
Ruiz, 536 U.S. 622, 629 (2002); Weatherford v. Bursey, 429 U.S. 545, 559

4

This section is reproduced in its entirety under Chapter X, Legal Policies, Section 5-1 of
the District’s Employee Handbook.
Page 8

 (1977).

3.

a.

Materiality and Admissibility. Exculpatory and impeachment
evidence is material to a finding of guilt—and thus the Constitution
requires disclosure—when there is a reasonable probability that
effective use of the evidence will result in an acquittal. United States
v. Bagley, 475 U.S. 667, 676 (1985). Recognizing that it is
sometimes difficult to assess the materiality of evidence before trial,
prosecutors generally must take a broad view of materiality and err
on the side of disclosing exculpatory and impeaching evidence.
Kyles, 514 U.S. at 439. While ordinarily, evidence that would not be
admissible at trial need not be disclosed, this policy encourages
prosecutors to err on the side of disclosure if admissibility is a close
question.

b.

The prosecution team. It is the obligation of federal prosecutors, in
preparing for trial, to seek all exculpatory and impeachment
information from all the members of the prosecution team (as defined
above).

Disclosure of exculpatory and impeachment information beyond that
which is constitutionally and legally required. Department policy
recognizes that a fair trial will often include examination of relevant
exculpatory or impeachment information that is significantly probative of the
issues before the court but that may not, on its own, result in an acquittal or,
as is often colloquially expressed, make the difference between guilt and
innocence. As a result, this policy requires disclosure by prosecutors of
information beyond that which is "material" to guilt as articulated in Kyles
v. Whitley, 514 U.S. 419 (1995), and Strickler v. Greene, 527 U.S. 263,
280-81 (1999). The policy recognizes, however, that a trial should not
involve the consideration of information which is irrelevant or not
significantly probative of the issues before the court and should not involve
spurious issues or arguments which serve to divert the trial process from
examining the genuine issues. Information that goes only to such matters
does not advance the purpose of a trial and thus is not subject to disclosure.
a.

Additional exculpatory information that must be disclosed. A
prosecutor must disclose information that is inconsistent with any
element of any crime charged against the defendant or that
establishes a recognized affirmative defense, regardless of whether
the prosecutor believes such information will make the difference
between conviction and acquittal.

b.

Additional impeachment information that must be disclosed. A
Page 9

 prosecutor must disclose information that either casts a substantial
doubt upon the accuracy of any evidence—including but not limited
to witness testimony—the prosecutor intends to rely on to prove an
element of any crime charged, or might have a significant bearing on
the admissibility of prosecution evidence. This information must be
disclosed regardless of whether it is likely to make the difference
between conviction and acquittal.

4.

B.

c.

Information. Unlike the requirements of Brady and its progeny,
which focus on evidence, the disclosure requirement of this section
applies to information regardless of whether the information subject
to disclosure would itself constitute admissible evidence.

d.

Cumulative impact of items of information. While items of
information viewed in isolation may not reasonably be seen as
meeting the standards outlined in paragraphs a. and b. above, several
items together can have such an effect. If this is the case, all such
items must be disclosed.

Comment. This policy establishes guidelines for the exercise of judgment
and discretion by attorneys for the government in determining what
information to disclose to a criminal defendant pursuant to the government's
disclosure obligation as set out in Brady v. Maryland and Giglio v. United
States and its obligation to seek justice in every case. Where it is unclear
whether evidence or information should be disclosed, prosecutors are
encouraged to reveal such information to defendants or to the court for
inspection in camera and, where applicable, seek a protective order from the
court. By doing so, prosecutors will ensure confidence in fair trials and
verdicts. Prosecutors are also encouraged to undertake periodic training
concerning the government's disclosure obligation and the emerging case law
surrounding that obligation.

Giglio Policy

Pursuant to USAM 9-5.100, the following plan for the United States Attorney’s
Office for the District of Wyoming is intended to set forth the policies and procedures of this
office regarding the Department of Justice’s "Giglio Policy" as required by the December
13, 1996 memorandum from then Director Carol DiBattiste.
This policy anticipates that the majority of such information concerning law
enforcement witnesses shall come from the witnesses themselves, as has traditionally been
the case. The policy is also intended to do everything reasonably possible to protect the
reputations and privacy interests of the law enforcement officials who may be affected by
this policy.
Page 10

 1.

Definition of Impeaching Material
It is probably not possible to identify every conceivable type of impeachment
information; however, for purposes of this document, such information may
include, but is not strictly limited to, the following:

2.

a.

Specific instances of conduct of the witness for the purpose of
attacking the witness' credibility or character for truthfulness;

b.

Evidence in the form of opinion or reputation as to the witness'
character for truthfulness;

c.

Prior inconsistent statements; and

d.

Information that may be used to suggest that a witness is biased.

Expectation of Disclosure by Agent/Witness
It is anticipated that in the great majority of instances any Giglio information
subject to disclosure to the defense will be revealed to prosecutors by the
agents/witnesses themselves.
It is already the obligation of the
agents/witnesses to make this information known to this office at the earliest
opportunity, and it has been the experience of this office that this disclosure
is made by such agents/witnesses. The policy set forth herein is to establish
procedures and protocols for those unusual cases in which a prosecutor feels
that further inquiry, for whatever reason, may be warranted.

3.

Identification of "Requesting Official"
The First Assistant United States Attorney (FAUSA) is the appropriate
contact point in this office for prosecutors who believe that a request to a law
enforcement agency regarding impeachment material is necessary (i.e., the
"Requesting Official").5
Any Assistant United States Attorney (AUSA) who has determined that such
a request is merited shall submit a written memorandum outlining the agency
(or agencies) to whom such a request is to be made, the agent (or agents)
about whom the request is to be made, and a factual basis for why the request
is appropriate and necessary.

5

The United States Attorney may authorize one or more other persons in the office to act as
the “Requesting Official” on those occasions when the FAUSA is unavailable.
Page 11

 The Requesting Official shall be the only authority to make such requests on
behalf of this office to any agency. In extraordinary circumstances such as
where information comes to light during or immediately before trial and
where the Requesting Official is not available, the AUSA should
immediately notify the Criminal Chief or other member of the management
team.
4.

Unsubstantiated or Incredible Allegations or Allegations Which Have
Resulted in Exoneration
Paragraph 6 of the Department's "Giglio Policy" provides as follows:
"Allegations that cannot be substantiated, are not credible, or have resulted
in the exoneration of an employee generally are not considered to be
potential impeachment information. Upon request, such information which
reflects upon the truthfulness or bias of the employee, to the extent
maintained by the agency, will be provided by the prosecuting office under
the following circumstances: (a) when the Requesting Official advises the
Agency Official that it is required by a Court decision in the district where
the investigation or case is being pursued; (b) when, on or after the effective
date of this policy: (I) the allegation was made by a federal prosecutor,
magistrate judge, or judge; or (ii) the allegation received publicity; (c) when
the Requesting Official and Agency Official agree that such disclosure is
appropriate, based upon exceptional circumstances involving the nature of
the case or the role of the witness; or (d) when disclosure is otherwise
deemed appropriate by the agency. The agency is responsible for advising
the prosecuting office, to the extent determined, whether any aforementioned
allegation is unsubstantiated, not credible, or resulted in the employee's
exoneration."
Should a dispute arise between the office and any agency as to whether
information has to be disclosed to defense counsel, the Requesting Official
shall serve as the representative of this office in resolving such dispute. In
the event that such a resolution becomes impossible, then the ultimate
decision shall be made by the United States Attorney for the District of
Wyoming in consultation with the appropriate agency representative.
When this office receives information of unsubstantiated and/or incredible
allegations or allegations which have resulted in exoneration, which
information ultimately is not disclosed to defense counsel, then, at the
conclusion of the case, such information should be purged from the file
maintained in this office and returned to the agency from which it was
received. This office shall maintain all motions, responses, legal
memoranda, court orders, and internal office memoranda or correspondence
Page 12

 in the same fashion as other documents maintained for the file.
5.

Maintenance of Records
The documents pertaining to potential impeachment information shall be
maintained in the case file in which the agent/witness is expected to testify
or serve as a witness.
In any case in which potential impeachment information was not provided to
the defense, this office shall not maintain any system of records that can be
accessed by the identity of the agent/witness, exclusive of keeping motions
and court orders and supporting documents in the relevant criminal case file
in the usual fashion.
When such information has been disclosed to the defense counsel such
information along with any judicial rulings and related pleadings,
correspondence and memoranda shall be stored in a file maintained by the
FAUSA (Requesting Official) in such manner as to be accessed by the
identity of the agent/witness.
Where such records are maintained in the Office of the United States
Attorney for the District of Wyoming, any AUSA relying upon the accuracy
of such records should notify the Requesting Official and request an update
of those records so as to obtain any additional information which may be
available.
Any records maintained by this office of impeaching information, which
records can be accessed by the identity of the agent/witness, shall be
maintained in the same manner as tax information records by the Requesting
Official and may be accessed by AUSAs only upon approval of the
Requesting Official.
Case files in which impeaching information obtained from an agency is
contained shall be stored by AUSAs in the same manner as files containing
tax information and records.

6.

Consultation with and Notification of Agencies
Prior to disclosure to the defense or the Court of any information pursuant to
this policy, this office, through the Requesting Official or through the AUSA
initiating such request if specifically authorized by the Requesting Official,
shall notify the agency of the intention of this office to reveal such
information. Upon notification, the agency shall be given the opportunity to
express its views as to the propriety of revealing such information. Any
Page 13

 disputes regarding the propriety of revealing such information shall be
resolved through the agency contact and the Requesting Official and/or
through the United States Attorney.
Whenever potential impeaching information received from an agency is
disclosed to the Court or to the defense, such information, together with any
judicial rulings and related pleadings, shall be provided to the agency that
provided such information.
7.

Appropriateness of Ex Parte, in Camera Review of Information
In some cases it may be appropriate to consult with the Court regarding the
need to disclose certain information. In such cases, an ex parte application,
under seal, requesting in camera inspection, shall be made to the Court. Such
requests shall include language allowing this office to notify the agency
providing the information of the request and of the ruling thereon.
In the event disclosure is ordered, this office shall seek protective orders to
limit the scope of the use and dissemination of such information by defense
counsel so as to protect the reputation and privacy rights of the
agent(s)/witness(es) affected by such disclosure.

8.

Duty to Notify of Closing File
When a file in this office has been closed on a matter in which impeaching
information has been made available by any agency, this office shall
promptly notify the agency of the closure of the file so that the agency will
be on notice that its continuing duty to disclose as to newly occurring matters
has ended.

9.

Removal of Records Upon Transfer, Reassignment or Retirement of
Employee
The Requesting Official shall remove from this office's system of records any
record of impeaching information that can be accessed by the identity of the
agent/witness upon being notified that the agent/witness has retired, been
transferred to an office in another judicial district, or been reassigned to a
position in which the agent/witness will neither be an affiant nor a witness.
The removal of such records shall not be affected, however, until all
litigation pending in this office in which the agent/witness could be an affiant
or witness has been completed.

IV.

Witness Interviews and Note -Taking

Page 14

 Witness interviews6 should be memorialized by the agent,7 and not the AUSA. Notes and
original recordings should be preserved, and AUSAs should confirm with agents that substantive
interviews are memorialized. When an AUSA participates in an interview with an investigative
agent, the AUSA and agent should discuss note-taking responsibilities and memorialization before
the interview begins (unless the AUSA and the agent have established an understanding through
prior course of dealing).8 Whenever possible, AUSAs should not conduct an interview without an
agent present to avoid the risk of making themselves a witness to a statement and being disqualified
from handling the case if the statement becomes an issue. If exigent circumstances make it
impossible to secure the presence of an agent during an interview, AUSAs should try to have another
office employee present.
A.

Witness Statement Variations and the Duty to Disclose: Some witnesses’
statements will vary during the course of an interview or investigation. For example,
they may initially deny involvement in criminal activity, and the information they
provide may broaden or change considerably over the course of time, especially if
there are a series of debriefings that occur over several days or weeks. Material
variances in a witness’s statements should be memorialized, even if they are within
the same interview, and they should be provided to the defense as Giglio
information.

B.

Trial Preparation Meetings with Witnesses: Trial preparation meetings with
witnesses generally need not be memorialized. However, AUSAs should be
particularly attuned to new or inconsistent information disclosed by the witness
during a pre-trial witness preparation session. New information that is exculpatory
or is impeaching should be disclosed.

C.

Agent Notes: Agent notes should be reviewed if there is a reason to believe that the
notes are materially different from the memorandum, if a written memorandum was
not prepared, if the precise words used by the witness are significant, or if the
witness disputes the agent’s account of the interview. AUSAs should pay particular
attention to agent notes generated during an interview of the defendant or an
individual whose statement may be attributed to a corporate defendant. Such notes

6

“Interview” as used herein refers to a formal question and answer session with a potential
witness conducted for the purpose of obtaining information pertinent to a matter or case. It does not
include conversations with a potential witness for the purpose of scheduling or attending to other
ministerial matters. Potential witnesses may provide substantive information outside of a formal
interview, however.
7

In those instances in which an interview was audio or video recorded, further
memorialization will generally not be necessary.
8

It should be noted that some agencies, such as the FBI, will not prepare reports of
interviews (i.e., 302s) if any other agents or the AUSA take notes during the interview.
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 may contain information that must be disclosed pursuant to Fed.R.Crim.P.
16(a)(1)(A)-(c) or may themselves be discoverable under Fed.R.Crim.P. 16(a)(1)(B).
See, e.g., United States v. Clark, 385 F.3d 609, 619-20 (6th Cir. 2004) and United
States v. Vallee, 380 F.Supp.2d 11, 12-14 (D. Mass. 2005).
V.

Preservation of Electronic Communications/ESI (electronically stored information)
A.

Email

The use of email has become widespread. AUSAs, law enforcement agents, and
other employees use email to communicate about a variety of case related matters. While
a valuable tool, email may have significant adverse consequences if not used appropriately.
The use of email to communicate substantive case-related information in criminal and
parallel criminal/civil cases may trigger AUSAs responsibilities under the Jencks Act,
Federal Rules of Criminal Procedure Rules 16 and 26.2, Brady/Giglio, USAM 9-5.001, and
the Federal Records Act.
Emails fall into three general categories: potentially privileged communications;
substantive communications; and purely logistical communications.
Emails may be used to communicate with others regarding case strategy, to seek
approval or legal advice from supervisors or others, to give legal advice, or to request that
an agent, paralegal, or other USAO personnel conduct certain research, analysis, or
investigative action in anticipation of litigation. Such emails are "potentially privileged" and
as such may be protected from discovery.
An email that contains "substantive" case-related information raises additional legal
issues. AUSAs and other personnel must be careful in the exchange of such email. We
should avoid using email to communicate substantive case-related information in criminal
and parallel criminal/civil cases whenever possible. Because email communications from
agents may not be as complete as investigative reports, and may have the unintended effect
of circumventing the investigative agency's established procedures for writing and reviewing
reports, AUSAs should advise investigative agents that, unless circumstances dictate
otherwise, substantive written communications from agents about cases should be in the
form of a formal investigative report, rather than an email.
Email may be used to communicate purely logistical information and to send formal
investigative reports as attachments, or to communicate efficiently regarding non-substantive
issues such as scheduling meetings, interviews, and court appearances.
When substantive communications are sent via email, these guidelines should be
followed:
1.

If email is used to communicate substantive case-related information with
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 agents, victim/witnesses, or anyone else, the email must be maintained in the
case file or electronically in an Outlook folder. Alternatively, the AUSA can
require the agent to memorialize the substantive communication in a written
interview report.

B.

2.

As part of the discovery collection and review process, AUSAs should
routinely ask agents and others to provide them with access to all emails that
contain substantive case-related information. This includes, but is not limited
to, communications between agents, and between agents, AUSAs, any USAO
personnel, or anyone else, just as any formal reports would be collected and
reviewed.

3.

While substantive emails need to be reviewed during the discovery phase,
any discoverable information may be disclosed in a redacted or alternative
form (e.g., a letter or memo) in appropriate circumstances, particularly when
agency policy or practice disfavors disclosure of emails. Redaction may also
be appropriate if an email contains a mix of substantive, potentially
privileged communications, and purely logistical information.

4.

AUSAs and USAO personnel who interact with victims and witnesses should
limit email exchanges to non-substantive matters such as the scheduling of
interviews or notification of dates and times of hearings. Similarly, AUSAs
should strongly encourage agents to limit email exchanges with victims or
witnesses to non-substantive matters. Any substantive information received
from a victim or witness should be considered potential Jencks Act material
and also maintained for Brady/Giglio review. If USAO personnel other than
the AUSA receives a substantive email from a victim or witness, such email
should be forwarded to the AUSA(s) assigned to the investigation or case.

Electronically Stored Information

AUSAs should consider the disclosure of electronically stored information (“ESI”)
on a case-by-case basis, in consultation with the agents.
1.

If documents are in electronic form, the AUSA should consider providing
electronic copies on DVD.

2.

For electronic evidence seized by warrant, AUSAs should consider having
an agent pull word processing documents, spreadsheets, databases, emails
and other substantive files off of drives and provide that data on disk.

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 3.

For an entire computer imaged pursuant to warrant, AUSAs should consider
making a forensic image available to the defense by allowing the defense to
supply a blank hard drive onto which the agent would copy the forensic
image.

4.

AUSAs must disclose ESI in accordance with the same discovery provisions
governing disclosure of non-ESI, including Rules 16 and 26.2, Brady and
Giglio. Similarly, AUSAs who know, or have reason to believe, that
otherwise discoverable ESI includes child pornography, should provide
counsel for the defendant a reasonable opportunity to inspect the contraband
pursuant to 18 U.S.C. § 3509(m). If the otherwise discoverable ESI contains
other forms of contraband, the AUSAs should consider either providing the
defendant with an opportunity to inspect the materials, or providing a copy
of the materials to the defendant subject to a protective order.
•

VI.

In those cases where the complete contents of ESI have not been
reviewed by the government, either because of limitation in the scope
of a warrant or because of the volume of stored material, the AUSA
should consider whether there is a statutory or other prudential reason
for not disclosing the unexamined ESI. If the AUSA determines that
non-disclosure is warranted, the attorney should notify defense
counsel of the non-disclosure and the basis for the non-disclosure.

Managing the Discovery Process - How to Produce and Track Discovery Provided

It is imperative that the USAO maintain a record of the disclosures made to defense counsel.
The exact fashion in which an AUSA maintains a record will change depending of the facts of the
case. For example, the AUSA may maintain a bates stamped copy of all material disclosed, a disk
of all material disclosed, or a written record of the documents and evidence reviewed by counsel on
particular dates. An AUSA must maintain a record of disclosures sufficient to counter a claim by
defense counsel that a particular document or piece of evidence was not disclosed.
Generally, our office has an expansive discovery policy.9 However, we should always be
aware that providing discovery is not routine, and we should always limit available discovery, within
the bounds permitted by law, to prevent danger to witnesses, informants, and/or law enforcement
and prevent “tipping off” those who may be under investigation in the future. In many cases, an

9

While we have, as an Office, generally adopted an expansive discovery policy (note
exceptions herein), it is not advisable to refer to the expansive discovery practice as “open file
discovery.” Our files should not ever be completely open (to preserve attorney-client privileged
information and the work product doctrine) and there may be times when another government
agency might have some material or information of which the AUSA is not aware. The use of the
term “open file” is therefore inexact and potentially misleading.
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 expansive discovery policy will not present problems but, in the cases in which we deem it
necessary, the United States Attorney’s Office will supply only such discovery as it is strictly
required to supply pursuant to Rule 16, Fed. R. Crim. P., the Jencks Act, and our obligations under
Brady, and its progeny. And, we will contest any efforts to obtain discovery beyond these three
parameters on any case where we believe a proper purpose is served by limiting discovery.
The following actions will be taken by our office:
1.

The AUSA handling the case may, with the concurrence of a member of the
management team, designate the case for “Legally Required Discovery Only.” In
order to determine when this designation is needed, consultation with case agents in
every case is required. We need to consider agents’ input, listen to their concerns
about protecting witnesses and confidential informants, and weigh any concerns they
have regarding damage to an investigation that could occur if expansive discovery
is provided.

2.

Each AUSA shall carefully review all discovery before it is provided to defense
counsel. This review must occur to ensure that we are complying with all legal and
policy requirements.

3.

The AUSA assigned to the case will inform the District Court Judge at the time of
arraignment as to the manner in which discovery will be handled in the particular
case. If another AUSA is covering the arraignment, it is the assigned AUSA’s
responsibility to make any discovery restrictions known to the covering AUSA.

4.

The documents released through the discovery process will be marked in a manner
to identify which defense attorney received the document.
The AUSA handling the case may want to request of the court that any discovery
order or order allowing access to grand jury transcripts contain the following
language:
“It is further ordered, adjudged, and decreed that defense counsel in this
matter is prohibited from copying any discovery material provided by the
United States and is prohibited from providing to the defendant, any
discovery material provided to defense counsel by the United States, without
first obtaining the permission of the court after notice and an opportunity to
be heard have been afforded to the United States of America.”

This policy is specifically authorized by Rule 16(d)(1), Fed. R. Crim. P., which
confers on federal trial courts the discretion to enter appropriate protective orders in
order to protect either ongoing investigations or to protect witnesses from danger.
5.

Whether the case is an open case file or closed case file, the dates of birth and social
security numbers shall always be redacted. Addresses of individuals shall be
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 redacted if, in the opinion of the AUSA, releasing the address would put any person
in danger or otherwise compromise the case. If additional personal identifying
information is contained in a report that could cause harm to any person, redaction
is appropriate even in an “expansive file” case. Please also be aware that in all cases
any medical information should be protected as appropriate.
6.

VII.

Any disclosure of criminal history information shall be provided in summary form,
in lieu of a verbatim copy of, for example, an NCIC printout.

Timing of Discovery Disclosures
A.

Rule 16 and Rule 12 Discovery

Every judge in the District orders at arraignment the production of Rule 16 discovery
by a certain date. You should comply with the order by either sending the Rule 16 material
to defense counsel or making the Rule 16 material available for review.
It is the policy of the District to turn over Rule 12 material (e.g., search warrants,
reports of search and seizure and arrests, and witness identification) to the defense with the
Rule 16 material. It is in our interest to provide such notice by turning over evidence that
may be the subject of a motion to suppress as soon as possible. Furthermore, if you have a
case in which there is evidence that is not covered by a discovery rule but that may be the
subject of a motion to suppress (for example identification procedures), you should turn the
material over with the Rule 16 material.
AUSAs should always consider security concerns of victims/witnesses when making
discovery timing decisions. In addition AUSAs should also consider the need to protect
ongoing investigations, prevent obstruction of justice, investigative agency concerns and
other strategic considerations that improve our chances of reaching a just result in our cases.
B.

Expert Disclosures

Rule 16 requires disclosure upon the request of the defendant a written summary of
a testifying expert’s expected testimony, including the expert’s opinions, bases and reasons
for the opinions, and the expert’s qualifications. In most cases, expert disclosures are not
made by the Rule 16 deadline as established at the arraignment because either the
government has not determined whether an expert will testify or the expert has not yet been
identified. Therefore, judges typically set a date for expert disclosures that is tied to the trial
date. These disclosure dates are not uniform and vary by judge, and in certain cases no
disclosure date is set. Thus, AUSAs should make expert discloses in compliance with any
pre-trial order, but in the absence of such an order, no later than one week prior to trial.
C.

Confidential informants

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 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. Informants who merely act as tipsters should never be
disclosed unless the information supplied by the informant otherwise raises Brady or Giglio
concerns.
In those instances where we are required to disclose the identity of the informant,
judges typically require the government to make the informant available to the defense. A
judge generally sets a date by which the informant must be identified and made available for
an interview.
D.

Federal Rules of Evidence 404(b), 413 and 414

Federal Rules of Evidence 404(b) requires reasonable pretrial notice of other crimes
or bad act evidence to be offered by the United States. Given that it would likely be held to
be ineffective assistance of counsel not to make such a request, notice should be provided
even if no request is made. Similar notice obligations exist for introduction of evidence in
sexual abuse cases. FRE 413 authorized introduction of evidence of similar crimes in sexual
assault cases and FRE 414 allows introduction of similar evidence in child molestation cases.

Both FRE 413 and 414 mandate that the government must give notice of its intention
to offer such evidence and disclose the evidence to the defendant at least 15 days prior to
trial, and AUSAs must comply with this requirement. FRE 404(b) mandates reasonable
notice without a specific deadline. However, in many cases judges set a specific deadline
for disclosure of 404(b)-type evidence. AUSAs should disclose FRE 404(b) evidence in
compliance with any pre-trial order but in the absence of such an order, no later than one
week prior to trial.
E.

Jencks Act Material

Although not required by the Jencks Act, the policy in the District is to disclose
Jencks Act material three days before trial. In many cases, however, AUSAs should
consider giving broader and earlier discovery than required by the policy because it fosters
a speedy resolution of many cases.10 Early disclosure also negates any issues concerning
whether the Jencks Act material contains Brady or Giglio information. An AUSA must
obtain supervisory approval to disclose Jencks Act material less than three days before trial.
Withholding of such material should be based on security concerns of victims and witnesses,

10

Depending on the nature of the case (i.e., an ongoing drug investigation), “disclosure” of
agent interview reports can be made by allowing the defense to review the reports in the USAO.
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 protecting ongoing investigations, preventing obstruction of justice, investigative agency
concerns, or other strategic considerations that improve our chances of reaching a just result.
Tenth Circuit law is clear that agent interview reports are not Jencks Act material for
the individual interviewed unless the individual adopted the report or the report is a
substantially verbatim recitation of what the individual said during the interview. While we
should never concede that such interview reports are Jencks, the policy in the District is to
disclose such interview reports as if they were Jencks Act material. Therefore, if an AUSA
seeks to disclose interview reports that are not technically Jencks Act material less than three
days before trial, the AUSA must obtain supervisory approval.
An AUSA is not required to disclose agent interview reports for non-testifying
individuals. However, AUSAs should err on the side of disclosing such reports absent
concerns related to witness safety, obstruction of justice, ongoing investigations, or
legitimate privacy concerns.
Subject to our obligations under Brady and its progeny, agent interview reports may
be redacted as reasonably necessary to mitigate concerns related to witness safety,
obstruction of justice, and to protect ongoing investigations.
Rule 26.2 applies the Jencks Act to suppression hearings and to the extent specified
in the Rules to other proceedings such as preliminary hearings, sentencing and detention
hearings. The rule requires production of the statement of a witness, other than the
defendant, after the witness has testified upon motion of the party who did not call the
witness. AUSAs must be prepared to provide such statements to defense counsel at these
various hearings.

F.

Brady and Giglio

Due process requires that disclosure of exculpatory and impeachment evidence
material to guilt or innocence be made in sufficient time to permit the defendant to make
effective use of that information at trial. See, e.g. Weatherford v. Bursey, 429 U.S. 545, 559
(1997); United States v. Farley, 2 F.3d 645, 654 (6th Cir. 1993). In most cases, the
disclosures required by the Constitution and this policy will be made in advance of trial.
1.

Exculpatory information. Exculpatory information must be disclosed
reasonably promptly after it is discovered. This policy recognizes that
exculpatory information that includes classified or otherwise sensitive
national security material may require certain protective measures that may
cause disclosure to be delayed or restricted (e.g. pursuant to the Classified
Information Procedures Act).

2.

Impeachment information. Impeachment information, which depends on
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 the prosecutor's decision on who is or may be called as a government
witness, will typically be disclosed at a reasonable time before trial to allow
the trial to proceed efficiently. In some cases, however, a prosecutor may
have to balance the goals of early disclosure against other significant
interests—such as witness security and national security—and may conclude
that it is not appropriate to provide early disclosure. In such cases, required
disclosures may be made at a time and in a manner consistent with the policy
embodied in the Jencks Act, 18 U.S.C. § 3500.
3.

Exculpatory or impeachment information casting doubt upon sentencing
factors. Exculpatory and impeachment information that casts doubt upon
proof of an aggravating factor at sentencing, but that does not relate to proof
of guilt, must be disclosed no later than the court's initial presentence
investigation.

4.

Supervisory approval and notice to the defendant. A prosecutor must
obtain supervisory approval not to disclose impeachment information before
trial or not to disclose exculpatory information reasonably promptly because
of its classified nature. Upon such approval, notice must be provided to the
defendant of the time and manner by which disclosure of the exculpatory or
impeachment information will be made.
[End]

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