1. An Order allowing the motion entered on February 19, 2004.Time was of the essence since trial was scheduled to commence and, infact, commenced on February 23, 2004. In the Order, the Court indicatedthat it intended to write an Opinion giving the detailed reasons for theallowance of the motion. Defendant's Motion for Production of Notes of Defendant'sStatements (#28) raises the issue of whether the defendant is entitled,under Rule 16(a) of the Federal Rules of Criminal Procedure, toproduction of the rough notes of agents who interviewed him. Thedefendant has been provided with the agents' formal reports of theinterviews which, presumably, were written after the interviews and basedon the rough notes and the agents' recollections.Page 2 The facts are that the defendant, a citizen of Saudi Arabia, wasarrested at Logan International Airport, Boston after he arrived on aLufthansa flight from Riyadh, Saudi Arabia via Frankfurt on January 3,2004. He was arrested before he was admitted to the United States whenborder agents discovered three "devices" in his backpack which thegovernment claims are "incendiary" or "explosive" devices. He was chargedin a complaint with possessing the devices on the aircraft as well asmaking false statements to government agents that the devices wereartist's pens or crayons. On January 13, 2004, the Grand Jury returned a two-count indictmentagainst the defendant. Count Two of that indictment alleges that: On or about January 3, 2004, at Boston, in the District of Massachusetts, ESSAM MOHAMMED ALMOHANDIS, in a matter within the jurisdiction of the executive branch of the Government of the United States, knowingly and willfully made materially false, fictitious or fraudulent statements or representations, to wit, that three explosive or incendiary devices in his possession were artist's crayons or pens, in violation of 18 U.S.C. § 1001 (a)(2). The allegedly false statements were made during the interviews ofthe defendant by government agents at Logan Airport on January 3,2004. Rule 16(a)(1), Fed.R. Crim. P., deals with disclosures whichthePage 3government must make. Subsection (A) governs disclosure of"Defendant's Oral Statement," and subsection (B) governs disclosure of"Defendant's Written or Recorded Statement." Subsection (A) reads: (A) Defendant's Oral Statement. Upon a defendant's request, the government must disclose to the defendant the substance of any relevant oral statement made by the defendant, before or after arrest, in response to interrogation by a person the defendant knew was a government agent if the government intends to use the statement at trial.Subsection (B) reads: (B) Defendant's Written or Recorded Statement. Upon a defendant's request, the government must disclose to the defendant, and make available for inspection copying, or photographing, all of the following: (i) any relevant written or recorded statement of the defendant if: the statement is within the government's possession, custody or control; and the attorney for the government knows — or through due diligence could know — that the statement exists; (ii) the portion of any written record containing the substance of any relevant oral statement made before or after arrest if the defendant made thePage 4 statement in response to interrogation by a person the defendant knew was a government agent; and (iii) the defendant's recorded testimony before a grand jury relating to the charged offense. In my judgment, Rule 16(a)(1)(A), Fed.R. Crim. P., is designed todeal with the situation in which a defendant makes an oral statement to agovernment agent in response to interrogation knowing that the person isan agent. Regardless of whether or not the agent ever reduces the oralstatement to writing., the government must disclose the "substance" ofthe oral statement to the defendant if it intends to use the oralstatement at trial. There is no question but that the United StatesAttorney has complied with the obligation to disclose the "substance" ofthe defendant's oral statements in the instant case; the "substance" iscontained in the agents' formal written reports which have been turnedover. But the important point is that even if the agents had not writtenany reports, the government would still have had the obligation todisclose the "substance" to the defendant in some other manner if thegovernment intended to use the statements at trial. If there were oralstatements made by the defendant to a government agent which thegovernment was not going to use at trial, Rule 16(a)(1)(A) would notimpose a duty to disclose them. However, as discussed infra, if thePage 5substance of the oral statements was reduced to writing,Rule 16(a)(1)(B)(ii) would require production. Rule 16(a)(1)(B)(ii), Fed.R. Crim. P., contains an additionalobligation to disclose "any written record containing the substance ofany relevant oral statements" made by the defendant. UnlikeRule 16(a)(1)(A), the obligation to disclose exists regardless of whether ornot the government intends to use the statement at trial. Thus, underthis provision, the United States Attorney also would have had theobligation to turn over the agents' formal written reports because theywere a "written record containing the substance of defendant's oralstatements to a government agent. That brings us to the issue raised by defendant's motion in theinstant case, i.e., under Rule 16(a)(1)(B)(ii), must the United StatesAttorney disclose the agents' rough notes of the interviews with thedefendant? In my judgment, the correct answer to the question is in theaffirmative. The Rule requires production of "anywritten record of the substance of any relevant oralstatement. . .". The notes are "a" written record.They may not be the only written record, but they certainly are "a"written record.Page 6 Rule 16(a)(1)(B)(ii) was added in 1991.[fn2] The Advisory CommitteeNotes to the 1991 amendments support this view. They provide, inpertinent part: The rule now requires the prosecution, upon request, to disclose any written record which contains reference to a relevant oral statement by the defendant which was in response to interrogation, without regard to whether the prosecution intends to use the statement at trial. The change recognizes that the defendant has some proprietary interest in statements made during interrogation regardless of the prosecutor's intent to make any use of the statement. The written record need not be a transcription or summary of the defendant's statement but must only be some written reference which would provide some means for the prosecution and defense to identify the statement.1991 Advisory Committee Notes, reprinted at 134 F.R.D. 495(1991). In the instant case, the rough notes surely contain a"reference to a relevant oral statement" and, as such, are a"written record" required to be disclosed. In addition, some recent case law supports the principle that roughnotes of a defendant's oral statements are subject to disclosure. UnitedStates v. Molina-Guevara, 96 F.3d 698, 705 (3 Cir., 1996); United Statesv. Lilly, 2003 WLPage 7168443, *1-2 (D.W.Va., 2003); United States v. Shane, 2001 U.S.Dist. Lexis 6437, *48 (D. Kan., 2001); United States v. Griggs,111 F. Supp.2d 551, 553-556 (M.D. Pa., 2000); United States v. Carucci,183 F.R.D. 614 (S.D.N.Y., 1999). In fact, in both the Molina-Guevara andCarucci cases, the Government took the position that the agent's roughnotes taken during the interrogation of the defendant were discoverableat least during the pre-trial phase of the case. See Molina-Guevara, 96F.3d at 705; Carucci, 183 F.R.D. at 614-5. The post-1991 cases which hold that an agent's rough notes of adefendant's oral statements are not producible do not appear to take noteof the 1991 change adding Rule 16(a)(1)(B)(ii). In United States v.Muhammad, 120 F.3d 688, 699 (7 Cir., 1997), the Court cited its 1978holding in United States v. Batchelder, 581 F.2d 626, 635 (7 Cir., 1978),cert. granted, 439 U.S. 1066 (1979), reversed on other grounds,442 U.S. 114 (1979), to the effect that "[a] defendant is not entitled to anagent's notes if the agent's report contains all that was in the originalnotes." Muhammad, 120 F.3d at 699. It does not appear from the Court'sopinion that any argument was made that the defendant was entitled to thenotes pursuant to Rule 16(a)(1)(B)(ii), Fed.R. Crim. P. The Fifth Circuit in United States v. Brown, 303 F.3d 582 (5 Cir.,2002),Page 8cert. denied, 537 U.S. 1173 (2003), followed the SeventhCircuit's decision in the Muhammad case. Brown, 303 F.3d at 590. However,like the Seventh Circuit, the Fifth Circuit made no mention of Rule 16(a)(1)(B) (ii).[fn3] It is not clear that in the District Court thedefendant relied on that provision in seeking the agent's notes. It ismore likely that the defendant relied on Rule 16(a)(1)(A). In fact theFifth Circuit mentions the 1991 Amendments in its opinion but only as tothe change to Rule 16(a)(1)(A), not the addition of Rule 16(a)(1)(B)(ii).Brown, 303 F.3d at 590, n. 18. There are three post-1991 cases in the Northern District of NewYork which deal to differing degrees with the issue. In United States v.Walker, 922 F. Supp. 732, 743 (N.D.N.Y., 1996), the Court was dealingwith a motion to require agents to preserve their notes, a motion whichwas granted. In the course of that discussion, the Court cited the textof Rule 16(a)(1)(A), made no mention of Rule 16(a)(1)(B) (ii), andcited a pre-1991 case for the proposition that "[i]n order to fullycomply with Rule 16, the government only needs to provide the defendantwith the typewritten memoranda of interviews prepared from theagent'sPage 9handwritten notes" citing United States v. Konefal,566 F. Supp. 698, 708 (N.D.N.Y., 1983). Walker, 923 F. Supp. at 744. In United States v. Mango, 1997 WL 222367, *2 (N.D.N.Y., 1997), thesame judge who decided Walker reiterated the points which he hadpreviously made in the Walker case when confronted with a motion fororder that the government preserve the notes of its agents. Again, nomention was made of Rule 16(a)(1)(B)(ii), and the motion to preserve thenotes was allowed. Lastly, in United States v. Myers, 1997 WL 797507 (N.D.N.Y., 1997),affirmed, 208 F.3d 204 (2 Cir., 2000) (unpublished), cert. denied subnom. Orcutt v. United States, 529 U.S. 1122 (2000), the District Court,relying on a 1989 Second Circuit opinion, states that thedefendant ". . . is not entitled under Rule 16(a)(1)(A) to discovery ofnotes of government agents made during the interrogation of [thedefendant]." Myers, 1997 WL 797507 *3 citing United States v. Koskerides,877 F.2d 1129, 1133 (2 Cir., 1989). Again, no mention is made ofRule 16(a)(1)(B)(ii).[fn4]Page 10 In conclusion, I rule that an agent's rough notes of an interviewof a defendant in circumstances in which the defendant, at the time ofthe interview knew that the interviewer was a government agent, arerequired to be produced under Rule 16(a)(1)(B)(ii), Fed.R. Crim. P., asa portion of any written record containing the substance of any relevantoral statement" made by the defendant. Hence, I allowed the Motion forProduction of Notes of Defendant's Statements (#28) on February 19,2004.
2. The pre-1991 version of Rule 16(a)(1)(A), to the extentthat it required production of the defendant's oral statements, onlyrequired the government to disclose ". . . the substance of any oralstatement which the government intends to offer in evidence at the trialmade by the defendant whether before or after arrest in response tointerrogation by any person then known to the defendant to be agovernment agent . . .". There was no provision for disclosure of anywritten record of oral statements. Thus, under the pre-1991 version ofthe Rule, the agents' rough notes would not be subject to productionunder Rule 16.
3. It is worth noting that the petition for certiorari in theBrown case was based, in part, on an argument that the Fifth Circuit didnot consider the issue of whether disclosure was required byRule 16(a)(1)(B)(ii). See 2002 WL 32133818.
4. With all due respect, I disagree with the holding in UnitedStates v. Mebust, 857 F. Supp. 609, 615 (N.D. Ill., 1994) that ". . .oral statements made by the defendant which are later memorialized by agovernment agent are not discoverable under Rule 16." Only pre-1991precedent is cited in support of that holding. Id. The Court did cite thepost-1991 version of Rule 16(a)(1), including (B)(ii), id., but did notdiscuss why the agent's written memorialization of the defendant'sstatements was not a "written record containing the substance of [a]relevant oral statement made by the defendant."