United States District Court, N.D. Illinois, Eastern Division
September 14, 2005.
UNITED STATES OF AMERICA
The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Bertell McKenzie, a.k.a. "Soup," was arrested on July 19, 2005
for his alleged participation in a conspiracy by the Four Corner
Hustlers street gang to distribute mass quantities of drugs. The
arrest was made pursuant to a warrant issued by this Court upon
the complaint of Jeffrey Cooper, a special agent with the FBI.
The Court held a preliminary hearing in the case on July 29,
At the hearing, the government called Agent Cooper to testify.
After the government's direct examination of Agent Cooper, Mr.
McKenzie's attorney, John Beal, asked the Court to order the
government to turn over any and all statements or reports
authored or signed by Agent Cooper that relate to the subject
matter of his testimony at the preliminary hearing and that
include references to Mr. McKenzie. The government opposed the
motion, and Mr. Beal indicated that he was willing to proceed
with the hearing without the statements, though he wanted to
preserve his right to obtain the requested documents. The Court
reserved ruling on the question of whether, under the circumstances, Mr. Beal was entitled to the discovery he
requested; it asked the parties to brief the issue, and then
continued with the hearing. At the close of the hearing, based
upon the testimony of Agent Cooper, the Court found probable
cause to believe that Mr. McKenzie had committed the offenses
charged in the complaint.
On August 1, 2005, Mr. Beal filed his written motion seeking
disclosure of the statements and reports he had requested at the
preliminary hearing. The government filed an opposition to the
motion, arguing that, with the preliminary hearing over and the
arraignment having not yet occurred, Mr. McKenzie has no right to
As a practical matter, the Court first notes that the issue is
likely moot. The government has indicated that, "after conferring
with Agent Cooper, [it] is not aware of any reports or other
statements that have Agent Cooper's name on the signature line or
supervisor lines on the bottom of the reports which relate to
this investigation and mention [Mr. McKenzie]." See
Government's Response to Defendant's Motion for Disclosure of
Agent Statements, ¶ 10. Mr. Beal has suggested that the
government is potentially attempting to hide something by fudging
its statement to avoid an outright denial that the materials he
seeks actually exist. But the Court refuses to believe that the
government would play such sneaky semantics games. Moreover, even if the government did have in its possession
statements signed by Agent Cooper that relate to the subject
matter of his testimony at Mr. McKenzie's preliminary hearing,
Mr. Beal is simply not entitled to them at this point. Federal
Rule 26.2(a) of the Federal Rules of Criminal Procedure,
expressly applicable in preliminary hearings by virtue of Federal
Rule of Criminal Procedure 5.1(h), requires that,
[a]fter a witness other than the defendant has
testified on direct examination, the court, on motion
of a party who did not call the witness, must order
an attorney for the government . . . to produce, for
the examination and use of the moving party, any
statement of the witness, that is in [its] possession
and that relates to the subject matter of the
The Court agrees with Mr. Beal that, as he phrased his request,
the items he requested would fall within this rule. See United
States v. Allen, 798 F.2d 985
, 993-94 (7th Cir. 1986). But, when
read together with Rule 5.1(h), Rule 16, and Rule 16.1 of the
Local Rules of this Court, it is clear that Rule 26.2 requires
the Court to order disclosure in the context of the preliminary
hearing only when the statements sought are to be used for
purposes of the preliminary hearing. Thus, if Mr. Beal had
indicated that he intended to use the statements to impeach Agent
Cooper's credibility at the preliminary hearing, or if he had
indicated that he needed the statements to effectively
cross-examine Agent Cooper, the Court would have ordered the
government to produce them. The Court would even have granted a
continuance to give Mr. Beal time to examine and digest the statements before
proceeding with the hearing. See Fed.R.Crim.P. 26.2(d).
But, as it happens, Mr. Beal said just the opposite: he offered
that he did not need the statements for the hearing and that he
was prepared to proceed with the hearing regardless of how the
Court ruled on his motion. In fact, he conceded that his motion
was really just a request for pre-trial discovery to which, at
the preliminary hearing stage, he would not otherwise be
entitled. Mr. Beal explained that he was pushing for the material
because the government has a policy of turning over such
discovery in cases where the defendant elects to waive the
preliminary hearing, but refusing such discovery to defendants
who elect to proceed with the preliminary hearing a policy he
thinks is unfair.
While the government's policy, which apparently entices some
defendants to forfeit their right to a preliminary hearing,
understandably troubles Mr. Beal, that policy is not inconsistent
with any rule of criminal procedure. As a matter of fact, as the
government points out, Rule 16.1 of the Local Rules of this Court
requires disclosure of Jencks Act material only after
arraignment. Nothing in Rule 26.2 or Rule 5.1 suggests that they
are intended to open the doors to pre-trial discovery. And, Mr.
Beal's arguments to the contrary notwithstanding, the government
is not obliged to turn over Jencks Act material at the preliminary hearing stage; its willingness to do so in some cases
does not compel it to do so in all cases.
For the reasons explained above, the Court denies Mr.
McKenzie's Motion for Disclosure of Agent Statements [#112].
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