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MICHAEL BAILEY 

United States Attorney 

ANNA WRIGHT

Assistant U.S. Attorney 

NATHANIEL J. WALTERS 

Assistant U.S. Attorney 

State Bar No.: 029708 

405 West Congress, Suite 4800 

Tucson, Arizona 85701-5040 

Telephone: (520) 620-7300 

E-mail: anna.wright@usdoj.gov 

 nathaniel.walters@usdoj.gov Attorneys for Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

 vs. 

Scott Daniel Warren, 

 Defendant.

18-CR-223-TUC-RCC (DTF) 

GOVERNMENT’S MOTION TO COMPEL 

DISCLOSURE OF WITNESS 

STATEMENTS PURSUANT TO RULE 26.2

The United States of America, by and through its attorneys undersigned, hereby 

moves the Court for an order compelling the defendant to disclose pursuant to Fed. R. 

Crim. P. 26.2 specific notes taken by Dr. Norma Price. The notes are a prior statement 

made by Dr. Price, a defense witness, which relate to the subject matter of her testimony. 

As such, the defendant must produce the notes to the government. In the alternative, the 

government respectfully requests that the Court order the defendant to submit the notes for 

in camera review so that the Court can determine if they must be disclosed under Rule 

26.2. 

Background 

At trial, Dr. Price testified that she spoke with the defendant on the telephone on 

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January 14, 2018, regarding the medical condition of the material witnesses. TR 6/4/19 at 

208-218. She also testified that, as part of that conversation, she took notes. Id. at 209. 

When the government objected to her testimony, counsel for the defendant indicated that 

he learned earlier that same day that Dr. Price had the notes. Id. at 209-210. The Court then 

directed counsel for the defendant to provide a copy of the notes to the government. Id. at 

210. Counsel did not provide the notes to the government, and the government crossexamined Dr. Price without having examined the notes. 

In preparation for retrial, on September 26, 2019, counsel for the government 

notified counsel for the defendant that the government would be entitled to Dr. Price’s 

notes under Rule 26.2 if she were called to testify again. After exchanging emails on the 

subject, counsel for the defendant responded on October 4, 2019, “If we do decide to call 

Dr. Price as a witness and are in possession [of] her notes by that time, we will disclose 

them to you. That is not the case at this time.” 

Discussion 

Rule 26.2 extends the disclosure requirements of the Jencks Act (18 U.S.C. § 3500) 

to the defense, and requires a party to disclose a prior statement of a witness after direct 

examination but before cross-examination when the prior statement “relates to the subject 

matter of the witness’s testimony” and is in the party’s possession. Fed. R. Crim. P. 26.2(a). 

“The rule, with minor exceptions, makes the procedure identical for both prosecution and 

defense witnesses...” Fed. R. Crim. P. 26.2, 1979 addition advisory comm. nn. Notes taken 

by a witness qualify as a “statement” within the rule if they “reflect the witness’ own 

words” and are “in the nature of a complete recital that eliminates the possibility of portions 

being selected out of context.” United States v. Bobadilla-Lopez, 954 F.2d 519, 522 (9th 

Cir. 1992) (discussing the Jencks Act). A prior statement relates to the witness’ testimony 

if it “overlap[s] with the subject matter of the testimony—and so potentially contain[s] 

inconsistencies[.]” Norinsberg Corp. v. United States Dept. of Agric., 47 F.3d 1224, 1229 

(D.C. Cir. 1995) (discussing the Jencks Act). 

In this case, the notes will reflect Dr. Price’s own words regarding the telephone 

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conversation, since she took them. Since Dr. Price allegedly took the notes for the purpose 

of medical care, the notes will also be complete and contain sufficient context. This is even 

more likely since Dr. Price told counsel for the defendant that she was able to recognize 

her notes as being from the telephone conversation, and she partially testified to their 

contents. TR 6/4/19 at 209-210. 

In addition, for the purposes of Rule 26.2, Dr. Price is a member of the defense team 

such that her notes are in the defendant’s constructive possession because she testified 

voluntarily for the defendant at trial. By analogy, documents are considered within the 

possession of the government when they are possessed by the prosecutorial division of the 

government, even if the assigned prosecutors do not have actual possession of the 

documents. See United States v. Zavala, 839 F.2d 523 (9th Cir. 1988). The defendant 

cannot avoid disclosure by refusing to ask Dr. Price for her notes. 

Finally, Dr. Price’s notes directly relate to the subject matter of her testimony, since 

they are the contemporaneous notes of her telephone conversation with the defendant and 

may contain discrepancies that the government can explore on cross-examination. The 

defendant elicited testimony from Dr. Price at the first trial using his notes regarding their 

conversation as preserved on the SOAP notes. It stands to reason that Dr. Price’s own 

writings concerning that conversation are material to her testimony regarding the SOAP 

notes and the medical condition of the material witnesses. 

Conclusion 

For the reasons discussed above, the government respectfully requests that the Court 

order the defendant to provide the government with a copy of the notes in compliance with 

Rule 26.2. In the alternative, the government respectfully requests that the Court order the 

defendant to submit the notes for in camera review so that the Court can determine if they 

must be disclosed under Rule 26.2. 

/// 

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Respectfully submitted this 8th day of October, 2019. 

 

 MICHAEL BAILEY 

United States Attorney 

District of Arizona 

 /s/ Anna R. Wright & Nathaniel J. Walters

 ANNA WRIGHT &

 NATHANIEL J. WALTERS

 Assistant U.S. Attorneys 

Copy of the foregoing served electronically or by 

other means this 8th day of October, 2019 to: 

All ECF Participants 

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