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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff, No. 09-20223

vs. District Judge Victoria A. Roberts

Magistrate Judge R. Steven Whalen

ALAN SILBER,

Defendant.

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OPINION AND ORDER

Before the Court is Defendant’s Motion for Early Release of All Jencks Material

[Docket #109]. For the reasons discussed below, the Motion will be DENIED.

I. BACKGROUND

This is a Medicare fraud case. Trial is scheduled for March 22, 2010. On March

3, 2009, the government filed a notice of intent to use Dr. Raymond Yung as an expert

witness [Docket #59]. Attached to the notice is a letter from the government to Dr. Yung,

outlining what his testimony is expected to be.

The Defendant requests early disclosure of any written statements of Dr. Yung that

would fall within the scope of the Jencks Act, 18 U.S.C. §3500, or that would constitute

exculpatory evidence within the meaning of Brady v. Maryland, 373 U.S. 83, 83 S.Ct.

1194, 10 L.Ed.2d 215 (1963), and its progeny. Defendant also seeks early disclosure of

all Jencks and Brady material as to all government witnesses who will testify at trial. 

The government has indicated that although it has turned over to the defense a

number of F.B.I. 302 reports and other discovery material, it will not disclose all Jencks

material until March 19, 2010, three days before trial. The government also represents
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that Dr. Yung has not made or adopted any statements that would be covered by the

Jencks Act and that have not been produced.

II. LEGAL PRINCIPLES

As I stated in United States v. Hayes, 376 F.Supp.2d 736, 738 (E.D. Mich. 2005),

 “the discovery available to a criminal defendant is relatively constricted, and is generally

circumscribed by three rules: (1) Fed.R.Crim.P. 16; (2) the Jencks Act, 18 U.S.C. §3500;

and (3) the doctrine set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963). See United States v. Presser, 844 F.2d 1275, 1285, fn. 12 (6th Cir.

1988) (stating that in most criminal prosecutions, these three rules ‘exhaust the universe

of discovery to which the defendant is entitled’).” Indeed, the Supreme Court has stated

that “[t]here is no general constitutional right to discovery in a criminal case, and Brady

did not create one....” Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51

L.Ed.2d 30 (1977). 

The Jencks Act “generally requires the government, on motion of a defendant, to

produce statements in its possession of witnesses who testify at a trial.” United States v.

Short, 671 F.2d 178, 185 (6th Cir. 1982). However, the defendant has a right to

production of such statements only after the witness has testified on direct examination. 

18 U.S.C. §3500(a).

Brady v. Maryland, supra, holds that the government violates due process when it

fails to disclose evidence favorable to the accused in a criminal case, if the evidence is

material to guilt or sentencing. Id., 373 U.S. at 87. The Brady rule extends to evidence

which could be used to impeach the credibility of a government witness. Giglio v. United

States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). In United States v.

Presser, supra, 844 F.2d at 1283, the Sixth Circuit held that Brady material must be
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disclosed “in time for its effective use at trial.” 

III. DISCUSSION

In United States v. Hayes, supra, I held that the Court has the inherent authority to

order the early release of “‘nonexculpatory impeachment material covered by Brady and

not covered by the Jencks Act[.]’” Id. at 740 (quoting United States v. Hart, 760 F.Supp.

653, 655 (E.D. Mich. 1991)). See also United States v. Starusko, 729 F.2d 256, 261 (3rd

Cir. 1984) (“[a] district court has general authority to order pretrial disclosure of Brady

material to ensure the effective administration of the criminal justice system”).

In Hayes, the defendant was charged with being a felon in possession of a firearm,

18 U.S.C. §922(g). The only witness who linked him to possession of the gun was a

police officer who himself had been indicted for conspiracy to violate civil rights and a

number of other charges related to the alleged falsification of police reports and planting

of evidence. The defendant sought early pretrial disclosure of information related to the

officer’s prosecution, arguing that it was impeachment material under Giglio. I ordered

disclosure because the officer was the only witness who linked the defendant to the gun,

and thus the impeachment information was highly material. I noted that the officer was

“the centerpiece of the prosecution,” and that “even from a pretrial perspective, it is

obvious...that the evidence which relates to the government’s investigation and

prosecution of [the officer] is material and discoverable under Brady and Giglio.” Hayes,

376 F.Supp.2d at 741.

By contrast, Dr. Yung, while important to the government’s case, is not the only

witness against the Defendant. Indeed, co-defendants have pled guilty and are expected to

testify. Moreover, Defendant has at least a summary of what Dr. Yung is expected to say. 

Finally, unlike the situation in Hayes, the government states that it simply does not have
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any information regarding Dr. Yung that would fall within the scope of Brady or Giglio.

Nor has it been shown that any of the other government witnesses are as critical to

its case as was the officer in Hayes. The court in Presser instructed that any Brady or

Giglio material be disclosed in time for its effective use at trial. To the extent that the

government has impeachment material that does not fall within the Jencks Act, it is

sufficient, under the facts of this case, that it be disclosed by March 19, 2010.

As to Jencks material, the statute, 18 U.S.C. §3500(a), is very clear that it need not

be disclosed until the witness testifies at trial. The Defendant argues, correctly, that an

act of Congress cannot supplant a constitutional protection as decreed by the Supreme

Court. See Dickerson v. United States, 530 U.S. 428, 437-438, 120 S.Ct. 2326, 147

L.Ed.2d 405 (2000) (“Congress may not legislatively supersede our decisions interpreting

and applying the Constitution”). However, the Defendant has not cited, nor is this Court

aware of any Supreme Court decision that has held the Jencks Act unconstitutional, or

that requires, as a matter of constitutional law, that a witness’ statements be disclosed

before trial. On the other hand, “[t]he Sixth Circuit has expressly held that the

government has no obligation to disclose and the trial court has no discretion to require

disclosure of Jencks Act material before a witness testifies.” United States v. Boykins,

1990 WL 143559, *5 (6th Cir. 1990), citing United States v. Algie, 667 F.2d 569, 571 (6th

Cir.1982). See also United States v. Presser, supra, 844 F.2d at 1283 (“The clear and

consistent rule of this circuit is that the intent of Congress expressed in the [Jencks] Act

must be adhered to and, thus, the government may not be compelled to disclose Jencks

Act material before trial”). But see United States v. Milton, 2007 WL 858344 (E.D. Wis.

2007)(rejecting defense request for disclosure of Jencks material 90 days before trial, but

ordering it produced no later than the final pretrial conference in an extremely complex
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 While this result is dictated by the Jencks Act and Sixth Circuit precedent, I

recognize that Jencks leaves open the possibility that the government will withhold early

disclosure not for the protection of witnesses or the integrity of an investigation, but

simply for strategic reasons, to disadvantage the defense. I do not suggest that has

occurred in the present case. However, if Congress has any interest in amending the

Jencks Act, it may want to examine the Michigan criminal discovery rules, specifically

M.C.R. 6.201(A), which provides for mandatory disclosure of witness statements upon

defense request. Criminal prosecutions in Michigan have not been stymied by this more

liberal discovery rule.

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case).

Therefore, pursuant to the Jencks Act, and under the facts of this case, I will not

order production of the requested material earlier than March 19, 2010.1

 As a practical

matter, of course, if the government delays disclosure, “the defendant upon request is

entitled to a reasonable adjournment to examine the material and to prepare for crossexamination.” Boykins, at *5. 

IV. CONCLUSION

The Defendant’s motion [Docket #59] is DENIED.

IT IS SO ORDERED.

s/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: March 11, 2010

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served on the attorneys

and/or parties of record by electronic means or U.S. Mail on March 11, 2010.

s/Susan Jefferson Case Manager