he was warned contrary to the agent's alleged comment.
Under Miranda v. Arizona, 384 U.S. 436, 469-73, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), law enforcement officers must advise a suspect of his right to consult with an attorney and to have counsel present during the interrogation prior to initiating a custodial interrogation. If a suspect invokes his right to counsel under Miranda, he is not subject to further interrogation until counsel is present or until the suspect himself initiates further discussion. Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1980). Miranda does not apply to every interrogation, however, only to custodial interrogation. United States v. Vega, 72 F.3d 507, 516 (7th Cir. 1995). Similarly, a suspect's right to be free from further interrogation under Edwards exists only if there has been no break in custody. McNeil v. Wisconsin, 501 U.S. 171, 177, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991); United States v. McKinley, 84 F.3d 904, 1996 U.S. App. LEXIS 11705, 1996 WL 269991, at *3 (7th Cir. 1996). Moreover, even when a suspect is in custody, it is not a violation of Miranda to obtain an oral statement if the suspect merely states a desire to consult an attorney before signing a written statement. Connecticut v. Barrett, 479 U.S. 523, 529-30, 93 L. Ed. 2d 920, 107 S. Ct. 828 (1987).
An interrogation is custodial if it occurs while the person "has been taken into custody or otherwise deprived of his freedom of action in any significant way." Sprosty v. Buchler, 79 F.3d 635, 640 (7th Cir. 1996). David Drake does not contend he was in custody during any of his encounters with the federal agent, nor are there any facts from which the court could reach such conclusion. In addition, the mere fact that the agent gave him Miranda warnings during the December 5, 1994 meeting, by itself, did not convert an otherwise noncustodial situation into a custodial arrest. See id. at 642. Thus, because David Drake was not in custody during any of his encounters with the government agent, he was not entitled to the Fifth Amendment protections recognized in Miranda and Edwards. United States v. LaGrone, 43 F.3d 332, 338-39 (7th Cir. 1994) (holding that a suspect cannot invoke Miranda rights outside the context of a custodial interrogation); Vega, 72 F.3d at 516; see also United States v. Hines, 963 F.2d 255, 256 (9th Cir. 1992) (holding defendant's reference to his lawyer during the interview could not be an invocation of his Miranda rights because he was not in custody at the time).
Likewise, while David Drake contends that the subsequent government-initiated encounters violated his Sixth Amendment right to counsel, he alleges no facts in support of this contention. The Sixth Amendment right to counsel does not attach until a "prosecution is commenced, that is, 'at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'" McNeil, 501 U.S. at 175 (quoting United States v. Gouveia, 467 U.S. 180, 188, 81 L. Ed. 2d 146, 104 S. Ct. 2292 (1984). His statements preceded the indictment in this case by approximately one year, and there is no indication that this criminal proceeding was otherwise commenced prior the indictment. Thus, the federal agent did not violate any Sixth Amendment right to counsel when she initiated the subsequent contacts.
David Drake also contends that the agent's statements amounted to improper promises and inducements to secure an interview. The Due Process Clause of the Fifth Amendment prevents the government from introducing a criminal defendant's involuntary confession against him at trial. United States v. D.F., 63 F.3d 671, 679 (7th Cir. 1995). A confession will be found to be voluntary "only if the government can demonstrate that, under the totality of the circumstances and by a preponderance of the evidence, it was not secured by the government through psychological or physical intimidation, but rather was the product of a rational intellect and free will." Id. Some variation of government overreaching must be present before a defendant's confession can be labeled involuntary and subsequently suppressed. Id. (citing Colorado v. Connelly, 479 U.S. 157, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986)). In evaluating whether the interrogator engaged in overreaching, the proper test is "whether the interrogator resorted to tactics that in the circumstances prevented the suspect from making a rational decision whether to confess or otherwise inculpate himself." United States v. Baldwin, 60 F.3d 363, 365 (7th Cir. 1995).
The agent's alleged comments to the effect that she needed to take a statement and that it was the best thing for him to do, standing alone, simply are not the type of statements which would constitute improper overreaching as the comments themselves are innocuous and do not imply any promises of leniency or any other promise of consideration. David Drake's additional allegation that the agent misled him with respect to the use of an oral statement, however, is somewhat of a concern to the court. Although David Drake did not allege this fact in his motion or original brief, and he raises it in a rather irregular fashion (i.e. via a reply brief), the court will consider this factual allegation. While law enforcement agents may employ some degree of trickery in obtaining a confession, a deceptive practice that distorts the suspect's rational choice might, in the totality of the circumstances, render the confession involuntary. See Holland v. McGinnis, 963 F.2d 1044, 1051-52 (7th Cir. 1992); United States v. Anderson, 929 F.2d 96, 100-01 (2d Cir. 1991); see also Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 6.2 (1984) (misrepresentations of law can render confession involuntary). The fact that David Drake was not in custody and was given Miranda warnings might be a distinguishing feature in this case. Nonetheless, the court in its discretion will not resolve this issue on the record before it and shall conduct an evidentiary hearing, pursuant to David Drake's oral request, for the limited purpose of determining the voluntariness of his statement.
Accordingly, the court reserves ruling on the issue of voluntariness.
III. DISCOVERY MOTIONS
Both defendants have filed separate motions for discovery. Since some of defendants' requests are not opposed by the government, they require no discussion. Pursuant to the agreement of the parties, therefore, the government shall disclose the following documents in a timely fashion: (1) any and all documents pertaining to the method and calculation of liquidated damages assessed against David and Jeffrey Drake; (2) any and all notes made by law enforcement agents and/or ASCS personnel pertaining to statements made by David and Jeffrey Drake during the years 1992, 1993, 1994 and 1995; (3) any and all written notes contemporaneously made at Stephenson County ASCS Committee meetings regarding Jeffrey Drake's loans for the years 1992, 1993 and 1994; and (4) any and all contemporaneous written notes of any alleged statements made by Jeffrey Drake at such meetings. Defendants shall notify the court by motion should the parties be unable to agree on the timing of these disclosures. As to defendants' remaining requests, the court shall discuss each request by category.
Both defendants seek disclosure of documents relating to other farmers who participated in the same government program as defendants. The government characterizes these requests as being sought in relation to a claim of selective prosecution. As neither defendant quibbles with this characterization, the court assumes that they each seek these documents in connection with such a claim.
A selective prosecution claim is not a defense on the merits to the criminal charge itself; it is an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution. United States v. Armstrong, 134 L. Ed. 2d 687, 116 S. Ct. 1480, 1486 (1996). A defendant seeking an order compelling discovery on an issue of selective prosecution must first make a threshold showing that he has a colorable basis for the claim. United States v. Heidecke, 900 F.2d 1155, 1158 (7th Cir. 1990); United States v. Kerley, 787 F.2d 1147, 1150 (7th Cir. 1986). While he need not make a "complete prima facie case" of selective prosecution, he must at least introduce "some evidence tending to show the existence of the essential elements of the defense." Kerley, 787 F.2d at 1150. The essential elements to a claim of selective prosecution are the following: (1) defendants were singled out for prosecution while other violators similarly situated were not prosecuted; and (2) the decision to prosecute was based on an arbitrary classification such as race, religion, or the exercise of constitutional rights. United States v. Cyprian, 23 F.3d 1189, 1195 (7th Cir.), cert. denied, 130 L. Ed. 2d 139, 115 S. Ct. 211 (1994). As to the first element, a defendant must present some evidence that similarly situated defendants of other classifications could have been prosecuted, but were not, before he is entitled to an order compelling discovery. Armstrong, 116 S. Ct. at 1488. Neither of defendants' requests are accompanied with the allegation that they were selectively prosecuted nor is there any evidence submitted that tends to show the existence of either element. Accordingly, defendants' requests for information relating to other farmers who were involved in the same government program are denied.
David Drake requests, pursuant to the Jencks Act ("Act"), 18 U.S.C. § 3500, disclosure of "any and all notes made by law enforcement agents regarding interviews of witnesses in this case." The government opposes such request, and further represents (and David Drake does not contest) that it has already produced witnesses' statements and typewritten memoranda of these interviews.
As an initial matter, a defendant does not have a right to pretrial disclosure of Jencks material. A district court may only order disclosure of such material after a witness called by the government has testified on direct examination. See 18 U.S.C. § 3500(b). Once the witness has testified on direct examination, and upon a motion by the defendant, a district court can order the government to produce any statement of the witness in the possession of the government which relates to the subject matter as to which the witness testified. Id. The Act defines a statement as any one of the following:
(1) a written statement made by said witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or (3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.
18 U.S.C. § 3500(e). In determining whether material is producible under the Act, the emphasis clearly is on "whether the statement can fairly be deemed to reflect fully and without distortion the witness's own words." United States v. Morris, 957 F.2d 1391, 1401 (7th Cir.), cert. denied, 506 U.S. 941, 121 L. Ed. 2d 290, 113 S. Ct. 380 (1992); United States v. Allen, 798 F.2d 985, 994 (7th Cir. 1986). A government agent's summary of a witness' oral statement that is not signed or adopted by the witness is not producible. Allen, 798 F.2d at 994. The reason for this is that summaries, by their nature, are not "substantially verbatim" recitals and would not constitute a statement as defined by section 3500(e)(2), and absent some kind of adoption by the witness, would not constitute a statement as defined by section 3500(e)(1). Conceivably, when a government agent takes notes during an interview, those notes could contain statements as defined by section 3500(e)(2) if they are "substantially verbatim" even though they are not adopted by the witness, as section 3500(e)(2) contains no requirement that the statement be adopted. See Campbell v. United States, 365 U.S. 85, 94, 5 L. Ed. 2d 428, 81 S. Ct. 421 (1961).
In addition, while a federal agent's written impression of what a witness said, his strategy or his conclusions from what the witness said are not statements of the witness, they might be statements of the agent if the agent is a witness and testifies about the subject matter of that report. Allen, 798 F.2d at 994.
Generally, if a defendant claims that the documents he seeks are statements as defined by the Act, a presumption arises in favor of the district court conducting an in camera inspection of the documents. In order to trigger this presumption in favor of an in camera inspection, the defendant "need only have a reasonable argument that if the document says what he believes it says, based on the testimony of the witness on direct examination, then it can possibly be used to impeach that witness." Allen, 798 F.2d at 995. In addition, before a district court can reach the issue of whether the document is a statement as defined by the Act, it must be requested with sufficient specificity. Id. at 996. A defendant can achieve this by establishing (normally by cross-examination of the witness at trial) that a certain document exists, that there is a reason to believe that the document is a statutory statement and that the government failed to provide it. Id.
In this case, David Drake has not laid an adequate foundation in order to trigger the presumption in favor of an in camera inspection for several reasons-- the first and most obvious in light of the preceding discussion being that his request precedes trial. Moreover, his request is far too broad, as it fails to specify the particular witness as well as identify the specific document in question. Thus, not only is the request premature, it lacks sufficient specificity and particularity. Accordingly, David Drake's request for the handwritten notes is denied at this time. Any renewed request should be made at trial upon laying an adequate foundation for a specific document.
For the foregoing reasons, defendants' separate motions to dismiss the indictment are denied and their separate motions for discovery are granted in part and denied in part. The court reserves ruling on David Drake's motion to suppress pending an evidentiary hearing which shall be held on June 19, 1996 at 1:30 p.m. Co-defendant, Jeffrey Drake, need not be present for this hearing if he so chooses.
PHILIP G. REINHARD, JUDGE
UNITED STATES DISTRICT COURT
DATED: June 6, 1996