1The defendant specifically asks for any statements,

interview notes, and reports concerning Bobby Hudson, Murdock

Hatfield, Casey Moynihan, Linda Platte, Lawrence Platte,

Charlotte True, Mark True, Jeff Skiff and Albert Dodge.

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

United States of America

v. No. 05-cr-208-JD

Jonathan Platte

O R D E R

Defendant Jonathan Platte moves the court for an order that

the government disclose all updated statements, interview notes,

and reports pertaining to any witnesses that the government

intends to call at trial.1 Although the defendant acknowledges

that the government previously disclosed a number of reports

pertaining to its interviews with prospective witnesses, the

defendant asserts that the government has not produced any

interview notes or reports “relative to witness statements made

during the course of recent trial preparation.” Disc. Mot. at 1-

2. In the alternative, the defendant requests that the court

conduct an in camera review of the interview notes to determine

“whether they constitute ‘statements’ or qualify as

Brady/exculpatory information.” Id. at 2.

Case 1:05-cr-00208-JD Document 44 Filed 01/09/07 Page 1 of 4
2See Giglio v. United States, 405 U.S. 150 (1972) (requiring

disclosure of all information tending to impeach a government

witness); Brady v. Maryland, 373 U.S. 83 (1963) (requiring

disclosure of all evidence favorable to the defendant).

2

The government contends that on June 26, 2006, and again, on

November 27, 2006, it provided the defendant with “all Jencks

materials (18 U.S.C. § 3500) involving its trial witnesses” and

with “all Giglio . . ., and Brady . . . information on its trial

witnesses.” Obj. at 2-3.2 The government agrees with the

defendant that if it should discover any Giglio or Brady material

during the course of its trial preparation it would be obligated

to disclose that information to the defendant, but states that

“no such information exists which has not already been

disclosed.” Id. at 3. 

The government further contends that the defendant is not

entitled to discovery of its witness interview notes to the

extent that they do not contain Brady and Giglio information. It

argues that such notes are protected under the “work product”

exception to the pre-trial disclosure rules. See Fed. R. Crim.

P. 16(a)(2). Additionally, the government suggests that these

notes are not “statements” under the Jencks Act. See 18 U.S.C. §

3500(e). 

Other than alluding to Brady, the defendant’s motion does

not provide a legal basis for pre-trial discovery of the

Case 1:05-cr-00208-JD Document 44 Filed 01/09/07 Page 2 of 4
3

interview notes. Because the defendant argues that the

government’s interview notes constitute “statements,” the

government assumes that the defendant is seeking disclosure under

the Jencks Act. In pressing its “work product” argument, the

government asserts that the requested documents “are internal

government documents prepared during interviews of confidential

informants in anticipation of litigation.” Obj. at 4. To the

extent that the interview notes constitute contemporaneous and

“substantially verbatim” transcriptions of oral statements made

by prospective government witnesses, such statements would be

discoverable under the Jencks Act. United States v. Neal, 36

F.3d 1190, 1197-98 (1st Cir. 1994) (quoting 18 U.S.C. §

3500(e)(2)).

The defendant, however, may not move for Jencks Act material

until after the witness’s direct examination at trial, and is

only entitled to disclosure to the extent that the statements

“relate[] to the subject matter to which the witness has

testified.” 18 U.S.C. § 3500(b); Fed. R. Crim. P. 26.2. 

Although the government ordinarily agrees to disclosure of Jencks

Act statements before trial, in order to avoid a potential midtrial continuance, it is not obligated to do so. Here, the

defendant has not provided a basis for pre-trial disclosure of

the government’s interview notes.

Case 1:05-cr-00208-JD Document 44 Filed 01/09/07 Page 3 of 4
4

Thus, the court denies the defendant’s motion to the extent

he seeks pre-trial disclosure of the interview notes. Because

the defendant may have a colorable claim to Jencks Act material

at trial, however, the court grants the defendant’s request to

review the documents at issue in camera. In reviewing the

documents, the court will also be watchful for Brady or Giglio

material. 

Conclusion

The defendant’s discovery motion (document no. 34) is

granted in part and denied in part. The government is ordered to

produce to the court, for in camera review, no later than January

16, 2007, all of the witness reports and interview notes for any

witness the government intends to call at trial that it has in

its possession and that have not been previously disclosed to the

defendant.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

January 9, 2007

cc: Paul J. Garrity, Esquire

Terry L. Ollila, Esquire

/s/ Joseph A. DiClerico, Jr. 

Case 1:05-cr-00208-JD Document 44 Filed 01/09/07 Page 4 of 4