Archive | 3500 Material

Tuesday, May 15th, 2018

Judge Woods Grants New Trial Due to Jencks Act Violation

The Supreme Court issued a number of significant opinions yesterday, but it is worth highlighting an important district court decision that might otherwise escape notice. This month, Southern District Judge Gregory Woods issued an opinion and order granting a new trial based on the government’s inadvertent failure to provide Jencks Act material—specifically the notes of proffer sessions with a key cooperating witness. Judge Woods’s opinion in United States v. Russell, No. 16-cr-396 (May 4, 2018), DE 618, is available here.

Mr. Russell was the sole person who went to trial among twenty-one defendants who were indicted in a cocaine distribution conspiracy. The government’s principal witness at the trial, Kenneth Ashe, testified pursuant to a cooperation agreement. After a short trial, involving only five witnesses and two days of testimony, Mr. Russell was convicted of conspiracy to sell crack cocaine and a 924(c) charge. Mr. Ashe’s testimony was …


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Categories: 3500 Material, harmless error

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Friday, August 13th, 2010

PC World

United States v. Shyne, No. 08-0865-cr (2d Cir. August 5, 2010) (Kearse, Sack, Hall, CJJ) (per curiam)

An unusual discovery issue is the theme of this per curiam opinion.

Three defendants went to trial on bank fraud and money laundering charges. Before trial, the government provided notice that it would offer statements of five other individuals as co-conspirators’ declarations under Fed.R.Evid.801(d)(2)(E), although it was not planning to call them as witnesses. The government also provided Giglio material as to these declarants. In response, the defendants demanded the declarants’ 3500 material – specifically their proffer notes – even though they would not be testifying at trial. The district court denied the application and, here, the circuit affirmed.

The Jencks Act, 18 U.S.C. § 3500, by its very terms applies only to a “witness” who has “testified on direct examination,” and is not “trumped” by Fed.R.Evid 806, which provides that the credibility …


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Categories: 3500 Material, Jencks Act, Rule 806, Uncategorized

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