AMENDED ORDER ON MOTION FOR REVIEW OF ORDER DENYING MOTION FOR PRODUCTION OF NOTES OF DEFENDANT'S STATEMENTS
This matter is before the Court on a motion for reconsiderationpursuant to Rule 2(b) of the Local Rules for United StatesMagistrate Judges. Defendant Brian Vallee objects to the Order ofChief Magistrate Judge Swartwood dated May 5, 2005, denying hismotion to compel the production of handwritten notes ofgovernment agents pursuant to Fed.R.Crim.P. 16(a)(1)(B)(ii).For the reasons stated below, the Court concludes that the Orderwas contrary to law, and that Rule 16 requires the production ofsuch handwritten notes.
On November 10, 2004, the grand jury returned an indictmentcharging defendant Brian Vallee with one count of possession of astolen firearm in violation of 18 U.S.C. § 922(j). On March 7,2005, defense counsel made a discovery request for all reportscontaining statements from the defendant to government agentsfrom the United States Attorneys' Office. The government producedtyped memoranda of defendant's statements, but did not produceany handwritten notes reflecting such statements. Accordingly, onMarch 26, 2005, the defendant filed a Motion for Production of Notes of Defendant's Statements,arguing that the text of Rule 16 required the production of suchnotes. That motion was denied by Magistrate Judge Swartwood onMay 5, 2005. Defendant filed a Motion for Review of theMagistrate Judge's Order on May 16, 2005.
The Court issued an Order on August 1, 2005, concluding thatthe Order of the Magistrate Judge was contrary to law and thatportions of the handwritten notes should be produced. On August2, 2005, the government moved for a stay and for reconsiderationof the Order, based on the Court's failure to consider all of therelevant submissions to the Magistrate Judge. After review ofthose submissions, and the government's motion and defendant'sopposition, the Court is issuing the following Amended Order.
The relevant language of Fed.R.Civ.P. 16(a)(1)(b) reads:"Upon request of a defendant the government shall disclose to thedefendant . . . that portion of any written record containingthe substance of any relevant oral statement made by thedefendant whether before or after arrest in response tointerrogation by any person then known to the defendant to be agovernment agent . . ." (emphasis added).
In determining the scope of the Fed.R.Crim.P. 16(a)(1)(B),the Court must first look to its language. See United States v.Turkette, 452 U.S. 576, 580 (1981). If the language isunambiguous, in the absence of a clearly-expressed Congressionalintent to the contrary, that language must ordinarily be regardedas conclusive. Id.
The language of Rule 16 plainly, and unambiguously, requiresthe production of any handwritten notes of government agentscontaining the substance of anything said by the defendant during interrogation. Notably, the rule requires thedisclosure of "any written record" containing "the substance ofany relevant oral statement." It is thus not limited to atyped, formalized statement. It is not limited to a verbatim ornear-verbatim transcription. It is not limited to the clearest,most readable version of the defendant's statement. Nor does therule contain any limitations on the nature of the statement (forexample, that it be exculpatory) or its intended use (forexample, that the government intends to use it at trial), otherthan the command that it be "relevant."
The Advisory Committee Notes are in accord with the clearlanguage of the rule. The Notes to the 1991 amendment to Rule 16,which adopted the current language, specifically state that therecord requested "need not be a transcription or summary of thedefendant's statement but must only be some written referencewhich would provide some means for the prosecution and thedefense to identify the statement." The handwritten notes of agovernment agent containing the substance of defendant'sstatements thus fall directly within the scope of the rule'sdisclosure requirements.
Notwithstanding the apparently clear command of the rule, thereis a considerable diversity of opinion among the courts on thisissue. Several courts, unsurprisingly, have held that the rulerequires the production of handwritten notes. See, e.g.,United States v. Almohandis, 307 F. Supp. 2d 253, 255 (D. Mass.2004) (Collings, M.J.) ("The [handwritten] notes are `a' writtenrecord. They may not be the only written record, but theycertainly are `a' written record.") ; United States v.Molina-Guervara, 96 F.3d 698, 705 (3rd Cir. 1996); UnitedStates v. Lilly, 2003 WL 168443 (W.D. Va. 2003); United Statesv. Wright, 2001 U.S. Dist. Lexis 6347, *48-51 (D. Kan. 2001). Other courts, however, have held to the opposite effect. See,e.g. United States v. Brown, 303 F.3d 582, 589-591 (5th Cir.2002) (stating that the government satisfies its obligation underthe rule when it "discloses a . . . report that contains all ofthe information contained in the interview notes"); UnitedStates v. Muhammad, 120 F.3d 688, 699 (7th Cir. 1997) (holdingthat "[a] defendant is not entitled to an agent's notes if theagent's report contains all that was in the original notes");United States v. Walker, 272 F.3d 407, 417 (7th Cir. 2001)(holding that the production of such notes could not be compelledwhere the typed report does not have any inconsistencies with thenotes); United States v. Mango, 1997 WL 222367, *22 (N.D.N.Y.1997) (stating that the government need only provide thetypewritten memorandum produced from the notes, with limitedexceptions, such as where the Jencks Act requires production).
Those cases appear to rely on an outdated version of the rule,or at least do not mention the fact that the rule was amended in1991 to adopt the present language. Prior to 1991, the relevantportion of Fed.R.Civ.P. 16 read, "Upon request of a defendantthe government shall permit the defendant to inspect and copy . . .the substance of any oral statement which the governmentintends to offer in evidence at the trial made by the defendantwhether before or after arrest in response to interrogation byany person then known to the defendant to be a governmentagent. . . ." Fed.R.Crim.P. 16(a)(1)(A) (1990) (superseded by1991 amendment). The 1991 amendment made at least two changes:first, it eliminated the requirement that the prosecution intendto offer the statement at the trial, and second, it mandated thedisclosure of "that portion of any written record containing thesubstance of any oral statement." Fed.R.Civ.P.16(a)(1)(B)(ii) (emphasis added).1 As Magistrate Judge Collings observed in Almohandis, "Thepost-1991 cases which hold that an agent's rough notes of adefendant's oral statements are not producible do not appear totake note of the 1991 changes adding Rule 16(a)(1)(B)(ii)." Forthat reason, the Court does not find those cases to be persuasiveauthority.
The government, however, argues that: the objective of the  amendment was not to force production of an agent's fragmented notations or scattered jottings made during an interview of a defendant. Rather, it was to insure that a defendant receive a written record of the substance of any statement he or she made, whether or not the government intended to offer it at trial.Gov't's Opp. to Def.'s Motion at 3. The problem with thatargument is that it substitutes the indefinite article "a" forthe adjective "any" in the text of the rule. Rule 16 does notcommand the production of "a" written record containing thesubstance of defendant's statements; it commands the productionof "any" such record.
The government further argues that the Advisory Committee notesstate that the 1991 amendment was intended to "expand slightly"the government's discovery obligations, and that the Court'sinterpretation would work a "far-reaching and revolutionarychange in discovery practice" rather than a slight expansion.Gov't's Opp. to Def.'s Motion at 5. The Court notes a possibleincongruity, but it is not enough to overcome the plain languageof the actual rule.2 If the Committee had intended theresult suggested by the government, it would have been simpleenough to say so (e.g., by requiring the government to produce"the substance of any statement by the defendant"). The Courtcannot assume that the words do not carry their ordinary English meaning.
Finally, the government argues that the Court's interpretationcontradicts the language of Rule 16(a)(2), which generallyexempts "the discovery or inspection of reports, memoranda, orother internal government documents made by an attorney for thegovernment or other government agent in connection withinvestigating or prosecuting the case." That rule, however,begins with the phrase, "Except as Rule 16(a)(1) providesotherwise," and therefore the Court's ruling is entirelyconsistent with Rule 16(a)(2).
The Court is cognizant that the production of an agent'shandwritten notes is fraught with potential dangers and problems.Such notes are rarely accurate transcriptions, and instead oftenconsist in substantial part of sentence fragments, abbreviations,and disconnected words. They are likely to be confusing,ambiguous, or misleading in the absence of an explanation as totheir content. They may contain mental impressions, comments,notes to one's self, or possible follow-up questions, which mayrequire painstaking redactions. And they are more likely to belost or discarded, inadvertently or otherwise, than formalmemoranda.
The Court further emphasizes that the Rule only requires theproduction of that "portion" of any written record containing thesubstance of a defendant's statement. Under ordinarycircumstances, therefore, the government may redact all materialsin the notes other than the substance of the statement itself.Moreover, the Court's interpretation is limited solely to Rule16(a)(1)(b)(ii), which applies only to defendant's statements; itdoes not, for example, extend to witness statements under theJencks Act, 18 U.S.C. § 3500, which contains a substantiallydifferent disclosure obligation.
Nonetheless, the Court cannot ignore the plain language of the1991 amendments. The Rules Committee, and Congress, has chosen the path of greaterdisclosure, and this Court has no choice but to follow thatdecision.
Under Rule 2(b) of the Local Magistrate Judge Rules, theDistrict Court shall modify or set aside any portion of aMagistrate Judge's order that the Court determines to be clearlyerroneous or contrary to law. For the reasons stated herein, theMagistrate's Order of May 5, 2005, is contrary to law and will beset aside. Based on the express language of Fed.R.Civ.P.16(a)(1)(b)(ii), the notes of a government agent made during aninterrogation are subject to disclosure to the defendant uponrequest, whether or not the substance of the notes wereincorporated into a final report which was also disclosed to thedefendant.
For the reasons stated above, defendant's motion for review ofthe Magistrate Judge's Order is hereby GRANTED, the Order is SETASIDE, and the government is hereby ORDERED to produce thatportion of any written record containing the substance of anyrelevant oral statement made by the defendant whether before orafter arrest in response to interrogation by any person thenknown to the defendant to be a government agent, including anyhandwritten notes containing the substance of such statement. Thegovernment's motion for a stay and for reconsideration is DENIED.
1. The relevant provision was renumbered without change in2002 as Fed.R.Civ.P. 16(a)(1)(B)(ii).
2. The Rule requires only the production of records containingthe substance of any statements of the defendant. It does notrequire the production of notes of witness interviews orinvestigatory notes generally, and is therefore not necessarily a"far-reaching" or "revolutionary" change.West Page 14