United States v. Trotter

UNITED STATES OF AMERICA, Plaintiff, v. JAQUARI TROTTER, GREGORY ROGERS, Defendants.

No. 1:20-cr-0186

United States District Court, W.D. Michigan, Southern Division

May 9, 2022

MEMORANDUM OPINION AND ORDER

PHILLIP J. GREEN, UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the government's motion for an order to show cause why counsel for defendants should not be sanctioned for an alleged breach of a protective order regarding discovery. (ECF No. 153 (restricted access)). Defense counsel have responded, all denying that they took any action that violated any term of the protective order. (ECF No. 155, 156 (restricted access)).

The government contends that a photograph it received from a law enforcement source depicts a verbatim account of a grand jury witness's testimony. The government further asserts that a file name contained in the photographed document indicates that the information in the document came from discovery provided to defense counsel under the protective order. The government is unable to identify the person who drafted the document, nor can it identify the person who took the photograph. The government has asked the Court to make inquiries of defense counsel regarding the drafting and dissemination of the document.

Having determined that the government has failed to meet its burden of showing by clear and convincing evidence that a knowing and willful violation of the protective order has occurred and for the reasons stated herein, the Court will decline the government's request to question defense counsel and it will deny the show-cause motion.

Preliminary Notes

Before turning to the merits of the pending motion, the Court will address several collateral issues.

In the instant motion, the government places great emphasis on the fact that, on February 6, 2022, the home of two grand jury witnesses was shot at multiple times by two assailants. (ECF No. 153, PageID.1352 (restricted access)). Two suspects are in custody. One of these individuals allegedly received the photograph in question on March 27, 2022, while in custody on state charges.^[1] (Id.). The government asserts that the dissemination of the information contained in the document depicted in the photograph prompted the attack on the grand jury witnesses' home. The photographed document contains some of the testimony of one of these grand jury witnesses (“J.J.”). It is not clear, however, how the photographed document was the motivating factor for the attack on J.J.'s home, given that it was received by the suspect some seven weeks after the shooting incident.

More to the point, however, none of this is relevant to the Court's determination of whether anyone violated a provision of the protective order. The Court is deeply concerned for the safety of witnesses and others who participate in the judicial process. But the Court cannot allow those concerns to override the legal issue before it which is whether the photographed document demonstrates that there was a knowing and willful violation of the protective order.

Further the Court questions the government's contention that the protective order was intended “to prevent precisely what happened here - disclosure of a witness's statement where there was a real possibility of retaliatory violence against that same witness.” (Govt's Suppl. Br. at 2, ECF No. 161, PageID.1474 (restricted access)). That may have been the government's intention, but if so, the protective order manifestly fails that purpose, even under the government's interpretation of its terms. There is nothing in the protective order that prevents defense counsel from disclosing to their clients the names of grand jury witnesses, as well as the substance of the witnesses' testimony. To the contrary, the protective order anticipates such disclosure, and even allows the grand jury transcript to be shown to the client. It simply prohibits counsel from leaving a copy of the transcript with the client. (See Protective Order for Discovery Material (“Protective Order”) at ¶ 6, ECF No. 27, PageID.54). It is the information regarding witness testimony, not the document on which it is printed, that poses the potential for witness intimidation or retaliation.^[2] The Court further notes its concern regarding what appears to be a declining level of civility between the U.S. Attorney's Office and the defense bar. This has become evident in some of the discourse between counsel, and in what appears to be an increase in allegations of misconduct from both sides of the courtroom. Outside the courtroom, cooperation, rather than contention, better serves the interests of justice. Counsel each has respective obligations to his or her client - whether the client is the United States or a criminal defendant. Criminal cases, particularly in federal court, involve serious charges for which defendants are entitled not only to a fair trial, but the appearance of fairness. Counsel should carefully limit their adversarial role to the legal issues before the court, and even then counsel should extend courtesy and respect to opposing counsel at all times.^[3]

The allegations raised in the government's motion are quite serious, particularly given the government's contention that the dissemination of the information in the photograph led to criminal conduct. A finding that an attorney knowingly and willfully violated a court order could effectively end that attorney's career. At the very least, it would likely result in a citation for civil contempt, and could expose the attorney to criminal contempt proceedings. It should come as a surprise to no one that such allegations would engender animosity in those accused.

Counsel for the government failed to comply with the Court's local rule requiring her to “confer in a good-faith effort [with opposing counsel] to resolve the dispute” before filing the instant motion, and to file a certificate setting forth the efforts made to resolve the dispute. See W.D. MICH. LCRR 12.4. That alone is a basis for denying the motion.

Moreover, when questioned during the April 25 hearing about efforts to discuss the pending issues with defense counsel, government counsel advised that she simply sent an email to defense counsel asking them to state whether they were responsible for disseminating the document in the photograph. She indicated that she expected that email to prompt defense counsel to initiate a discussion with her regarding the issues in the Protective Order. Not surprisingly, that did not happen. Government counsel's approach falls well short of fulfilling counsel's obligations under Local Rule 12.4. It is government counsel who bore the responsibility of engaging in a goodfaith effort to comply with Local Rule 12.4's consultation requirement.

A more productive approach would have been to initiate an open-ended discussion with defense counsel regarding the government's concerns relating to the document in the photograph. While such efforts likely would not have resolved the dispute entirely, it would have allowed counsel to discuss their respective views of the provisions of the protective order, narrowing the issues presented to the Court. This likely would have avoided the need for the Court to order supplemental briefing.

Procedural History

On December 16, 2020, the grand jury returned an indictment charging both defendants with assaulting a federal law enforcement officer with a deadly or dangerous weapon, and with using and discharging a firearm during and in relation to that assault. (ECF No. 1). The grand jury also charged Jaquari Trotter with being a felon in possession of a firearm. (Id. at PageID.3).

Gregory Rogers was arraigned on January 4, 2021, and the Court appointed an Assistant Federal Public Defender to represent him. (Minutes, ECF No. 10). Mr. Rogers was already in federal custody in a related criminal proceeding. (See id.). Jaquari Trotter was arraigned on January 7, 2021, and the Court appointed private counsel from the Criminal Justice Act (CJA) panel to represent him. (Minutes, ECF No. 19). He waived his right to a bond hearing and was ordered detained. (ECF No. 24). Both defendants entered not-guilty pleas. (ECF No. 10, 19).

On January 26, 2021, the Court granted the government's unopposed motion for the entry of the Protective Order. (ECF No. 27). The Protective Order includes a number of provisions restricting access to, and use of, discovery material produced by the government. The Protective Order provides for “civil and criminal sanctions” for any violation of the order. (Id. at PageID.55).

The Court entered a second protective order on December 22, 2021. (ECF No. 111). This order required the government to produce to defendants' counsel contact information regarding thirteen witnesses, which the government had previously redacted from police reports produced in discovery. (Id. at PageID.943).

The government was also required to advise defense counsel as to which witnesses are represented by counsel. (Id.). Defense counsel are precluded from disclosing the contact information to the defendants or to persons associated with them. (Id. at PageID.944).

On January 18, 2022, Mr. Rogers pled guilty to the charge of aiding and abetting the assault on a federal law enforcement officer using a deadly or dangerous weapon. (Minutes, ECF No 131; Amended Minutes, ECF No. 149). The plea was entered pursuant to a written plea agreement. (ECF No. 128). On January 24, 2022, Mr. Trotter pled guilty to assaulting a federal law enforcement officer with a deadly or dangerous weapon. (Minutes, ECF No. 140). He also entered into a written plea agreement with the government. (ECF No. 138). Both defendants are scheduled for a sentencing hearing on May 10, 2022. (ECF No. 132,...