DOJ-OGR-00002711.jpg

Case 1:20-cr-00330-AJN Document 148 Filed 02/04/21 Page 18 of 23 statements they already heard. Rather than risk a mistrial, the Court should require a proffer from the government or conduct a pretrial hearing to determine if the statements are admissible. V. Motion for Accelerated Disclosure of Witness Statements The defense moves for accelerated disclosure of witness statements, pursuant to 18 U.S.C. § 3500 (“Jencks Act”) and Rule 26.2 of the Federal Rules of Criminal Procedure. In order to properly investigate and prepare for trial, the defense will need the Jencks Act material well in advance of trial. The allegations in this case date back 25 years. At the time of the alleged offenses, electronic recordkeeping was not prevalent. As a result, records and files, should they still exist, may be archived or hard to retrieve. Moreover, the conduct alleged in the indictment purportedly took place in other states and in foreign countries over a four-year period. Statements pertaining to witnesses who are located outside United States will potentially require international travel to investigate. Foreign investigation may also require depositions, pursuant to Rule 15 of the Federal Rules of Criminal Procedure, in the absence of subpoena power to compel witness testimony in the United States. Investigation of witness statements is especially challenging in light of the global pandemic that has imposed numerous constraints, including restrictions on travel, mandated periods of quarantine, closure of public offices and businesses, and the reluctance of witnesses to meet in person. While these challenges cannot be eliminated entirely, early disclosure can help alleviate them and afford the defense a fair opportunity to make use of the Jencks Act material. On a case-by-case basis, courts can exercise their discretion and supervisory power to urge the production of Jencks Act material in advance of trial in the interests of judicial economy to avoid unnecessary delays during the course of the trial. See United States v. Percevault, 490 F.2d 126, 132 (2d Cir. 1974). The circumstances of this case — the age of the offenses, the 14 DOJ-OGR-00002711