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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 of a Rule 801(d)(2)(E) declarant may be “attacked … by any evidence which would be admissible for those purposes if” he had testified. That a non-testifying declarant’s statement comes into evidence against a defendant does not “convert that declarant into the equivalent of a witness who has appeared and testified under oath.” Rule 806 does not have its origin in the Jencks Act; rather, it is a codification of the due process considerations articulated in Brady and Giglio. Thus, “[a]lthough for impeachment purposes, Rule 806 treats a declarant speaking in furtherance of the conspiracy as if he were a witness who gave live testimony as if he were a witness, we do not believe that also means that a declarant whose statement is being repeated and a witness who gives live testimony are equal under the Jencks Act.” To hold otherwise would contravene the express language of § 3500, which states that no disclosure is authorized until the witness “has testified on direct examination in the trial of the case.”

Nor does the constitution require otherwise. The Jencks Act is a statutory requirement, not a constitutional one, thus an analogy between “non-testifying declarants and testifying witnesses does not work.”