United States v. Dixon

355 F.Supp.3d 1

UNITED STATES of America,

v.Donzell Lorenzo DIXON, Defendant.

Case No. 1:18-cr-00358 (TNM)

United States District Court, District of Columbia.

Signed February 8, 2019

Mark Adel Aziz, U.S. Attorney'S Office for the District of Columbia, Washington, DC, for United States of America.

Tony W. Miles, Federal Public Defender for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

A federal grand jury indicted Donzell Dixon on counts of robbery; using, brandishing, and carrying a firearm during the robbery; and unlawful possession of a firearm by a convicted felon. To expedite the provision of discovery to Dixon while guarding the victim's privacy and safety rights, the Government has moved for a protective order to limit the viewing, use, dissemination, and post-litigation retention of police body-worn camera ("BWC") material. Because the Government has shown good cause, the Court will grant the motion.

I.

Dixon was arrested in December 2018. See ECF No. 2. A "significant amount" of BWC video footage relevant to his case was captured by "numerous [police] officers." Gov't's Mot. for Protective Order Governing Body Worn Camera Materials ("Gov't's Mot.") at 2, ECF No. 8. The officers recorded "footage from the victim's report of the armed robbery the night of the incident, as well as footage from ... the execution of the search warrant at the defendant's home approximately two days later." Id.

In the two months since Dixon's arrest, the parties have "attempted to come to a consensus on an appropriate protective order" for the BWC footage but "are at irreconcilable odds on this issue." Id. at 1. The Government believes that a protective order is necessary to ensure the privacy and safety of the victim and "numerous civilian witnesses unrelated to this investigation." Id. at 2. Among other things, the proposed order:

• Precludes disclosure of the BWC material to anyone other than Dixon, his legal defense team, and people authorized by the Court;

• Requires defense counsel to ensure that neither Dixon nor anyone other than the legal defense team view any footage that includes personally identifying information about the victim or a witness; and

• Prohibits use of the BWC material in matters unrelated to this case.

See Protective Order Governing Discovery of Body Worn Camera Materials ("Protective Order"), ECF No. 8-1.

Dixon contests the need for this order. He suggests that "[v]ideo footage that captures the victim or shows civilian witnesses, without more, does not establish good cause for any special protection." Def.'s Opp. to Gov't's Mot. ("Def.'s Opp.") at 3, ECF No. 9. Both parties have submitted briefs detailing their arguments.¹

II.

Federal Rule of Criminal Procedure 16 governs discovery in criminal cases. Rule 16(a) requires the Government to produce, upon the defendant's request, any documents and data that are material to preparing the defense. See Fed. R. Crim. P. 16(a)(1)(A)-(G). But upon a showing of good cause, courts may "deny, restrict, or defer discovery ... or grant other appropriate relief." Fed. R. Crim. P. 16(d). This relief includes issuing protective orders. See id.

When the Government is seeking a protective order, it bears the burden of showing that good cause exists for its issuance. See United States v. Johnson , 314 F.Supp.3d 248, 251 (D.D.C. 2018). Good cause requires a "particularized, specific showing." United States v. Bulger, 283 F.R.D. 46, 52 (D. Mass. 2012). But the level of particularity required depends on the nature and type of protective order at issue. Id.

In determining whether good cause exists, courts have considered whether (1) disclosure of the materials in question would pose a hazard to others; (2) the defendant would be prejudiced by a protective order; and (3) the public's interest in disclosure outweighs the possible harm. See, e.g., United States v. Smith , 985 F.Supp.2d 506 (S.D.N.Y. 2013). "Among the considerations to be taken into account by the court will be the safety of witnesses and others, a particular danger of perjury or witness intimidation, and the protection of information vital to national security." United States v. Cordova , 806 F.3d 1085, 1090 (D.C. Cir. 2015) (cleaned up).

Courts often issue protective orders in criminal cases. They have "vast" discretion to "assure that a defendant's right to a fair trial [is] not overridden by the confidentiality and privacy interests of others." United States v. O'Keefe , 2007 WL 1239204 at *2 (D.D.C. 2007). Indeed, courts "can and should, where appropriate, place a defendant and his counsel under enforceable orders against unwarranted disclosure of the materials which they may be entitled to inspect." Alderman v. United States , 394 U.S. 165, 185, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).

III.

In weighing the need victim's and witnesses' need for a protective order against any prejudice to the Defendant or harm to the public that the order may cause, the Court considers two factors—the nature and circumstances of the alleged crime and the Defendant's criminal history. Considering the type of crime charged helps assess the possible threats to the safety and privacy of the victim. Defendants accused of securities fraud or shoplifting, for instance, may not pose as great a danger to victims as those charged with crimes of violence. Similarly, there may be greater privacy concerns when a defendant is alleged to have committed identity theft or counterfeiting.

Reviewing the defendant's criminal history can provide useful information as well. A long record of convictions for violent crimes may suggest a substantial danger to the safety of others. Similarly, a history of failures to follow court orders may justify a more restrictive protective order. By contrast, a first-time offender may be less likely to target his victim or the witnesses to his alleged crime.

Applying these factors, the Court finds that unrestricted disclosure of the BWC material would pose an unnecessary hazard to the victim and witnesses. And neither Dixon nor the public will be unduly prejudiced by the proposed order. So good cause exists to grant the Government's motion.

A.

The victim of and witnesses to Dixon's alleged crime have substantial interests at stake. The BWC footage displays the victim's identity and face. Gov't's Mot. at 2. It also shows civilian witnesses who are "unrelated to this investigation." Id. One of these witnesses "reports an unrelated crime" to the police while on camera. Id. Additionally, "BWC materials frequently, if not always, include personal identifying information" like names, driver's license numbers, personal phone numbers, and home addresses. Id. at 3. Officers responding to the report of an armed robbery will naturally ask the victim and any witnesses for this type of identifying information. These are "particularized" and "specific" examples of the sensitive data the Government seeks to protect. Bulger, 283 F.R.D. at 52. And they implicate privacy and safety concerns the Court cannot ignore.

Reflecting these concerns, federal law enumerates the rights of crime victims. See 18 U.S.C. § 3771. They have the right, for example, "to be reasonably protected from the accused," and to "be treated with fairness and with respect for [their] dignity and privacy." 18 U.S.C. § 3771(a). The Court has an obligation to "ensure that the crime victim is afforded [these] rights." 18 U.S.C. § 3771(b).² It must also consider the safety of the victim and the witnesses involved. See Cordova , 806 F.3d at 1090.

Here, these obligations strongly militate for the issuance of a protective order. The immediate aftermath of a violent crime is a traumatic and vulnerable time for a victim. Unfettered release of the footage capturing those moments would raise significant privacy concerns. And Dixon's purported conduct raises safety concerns that also justify protecting the BWC material.

Consider first the alleged crime. The victim was a driver who worked for GrubHub, a food delivery service. See Detention Mem. at 2, ECF No. 6.³ According to the Government's allegations, one night, Dixon ordered food from a restaurant that used GrubHub's service. Id. The victim was dispatched to deliver the food. Id. When he arrived at the listed address, he could not find Dixon. Id. Dixon then called the victim's cellphone. Id. When the victim returned this call, Dixon asked him to "bring the food back to the apartment building." Id. The victim did so, but was still unable to find him. Id.

Then, as he was walking back to his car, Dixon approached the victim from behind and told him to "[p]ut the money down." Id. at 2-3. The victim turned around and saw that Dixon was holding a "black semiautomatic handgun" that he kept "low and close to his body." Id. at 3. At gunpoint, he emptied his pockets. Id. Dixon also "reached into [the victim's] front coat pockets to remove the rest of his property," including a cellphone, bank cards, and roughly five hundred dollars in cash. Id. After taking these items, Dixon "pointed the handgun at [the victim] and told him to run." Id.

In short, Dixon is alleged to have used personally identifying information—a delivery driver's cellphone number—to rob an innocent person at gunpoint. These facts distinguish this case from those involving nonviolent or victimless crimes, in which protecting personal information may not provide meaningful safeguards to others. In United States v. Johnson , for example, the defendant was charged with being a felon in possession of a firearm. 314 F.Supp.3d at 250. The case involved no victims and no allegations of violence. See id. So in refusing to issue a protective order comparable to the one at issue here, the Johnson court did not consider the Crime Victim Rights Act, 18 U.S.C. § 3771, nor the obligations it places on courts to protect victims and their privacy. See id. at 257. But it still prevented unrestricted release of BWC material, finding that ...