USA v. Muhammad-Johnson, et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America, 	)
) 	ORDER
Plaintiff, 	)
)
vs. 	)
)
Ahmed Khalid Muhammad-Johnson, 	) 	Case No. 1:23-cr-102
)
Defendant. 	)
The court has issued a Stipulated Discovery Order and Protective Order memorializing the
Parties’ agreement regarding discovery. 	(Doc. No. 121). 	Paragraph 5 of 	this order prohibits
Defendant and any third party from possessing certain discovery. (Id.). Specifically, it provides:
5. 	Grand jury testimony (other than that of the Defendant), Jencks Act
statements, summary reports of witness statements (other than statements of the
Defendant) and any audio and video recording of the same, and all other discovery
material will remain in the sole custody of the Defendant’s attorney or an agent
working on behalf of the attorney and shall not be left with the Defendant or any
third party unless otherwise provided by court order obtained with a motion with
notice to the United States. The prohibition on leaving materials with the Defendant
or third party shall not apply to items discoverable under Fed. R. Crim. P 16 and, to
the extent they are intended for use as evidence in case-in-chief at trial, copies of
documents, tangible objects, and reports of examinations and tests. Other than for
purposes associated with representation of the Defendant in the criminal case now
pending, the defense shall not photocopy or reproduce grand jury transcripts, Jencks
Act statements, summary reports of witness interviews (other than statements of the
Defendant) and any audio and video recordings of the same or exhibits. 	If the
attorney for the Defendant is subsequently allowed to withdraw from the case, and
a substitute counsel is appointed or retained, upon agreement by the United States
Attorney’s office, the withdrawing attorney may provide copies of transcriptions,
summaries, notes, or dictations of discovery material to the substitute counsel. The
new attorney, however, shall be subject to the terms of this Order.
For defendants who are detained pending trial, the parties may modify this
paragraph on a case-by-case basis without leave of the Court. Any modifications of
this paragraph must be in writing and approved by the United States Attorney or his
designee.
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(Id.) (emphasis added).
Defendant is currently in 	Marshals Service custody at the Scotts Bluff County Adult
Detention Center in Gering, Nebraska. 	On November 15, 2023, he filed a “Motion for Use of
Computer in Correctional Center to Review Discovery.” (Doc. No. 128). Citing the voluminous
amount of discovery in this case and asserting that he has a right to review all of it, he seeks an order
from the court that would modify terms of the Stipulated Discovery Order and Protective Order and
allow him access to discovery in a secure electronic format along with computer on which he can
review this discovery in his own time.
On November 29, 2023, the United States filed a response in opposition to Defendant’s
motion. (Doc. No. 130). It does not object to allowing Defendant access to materials within the
scope of Fed. R. Crim. P. 16. However, it asserts that allowing Defendant to access discovery in this
case outside the presence of defense counsel or defense counsel’s agent raises security concerns
given the circumstances of this case and Defendant’s history. 	It further asserts that there are
alternatives beyond the provision of a computer that would afford Defendant an opportunity to
review discovery. Should the court be inclined to permit Defendant to obtain and review discovery
electronically on a computer, it requests that the court permit it to withdraw from the Stipulated
Discovery Order and Protective Order and provide only those materials it is required to disclose
under Fed. R. Crim. P. 16.
To facilitate what Defendant has requested, all of the discovery in this case would have to
be loaded onto a storage device and provided to the Scotts Bluff County Adult Detention Center,
which would be tasked with safeguarding the storage device and with providing Defendant with
reasonable access to the storage device along with a computer to which the storage device can be
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connected. If the Scotts Bluff County Adult Detention Center does not have a computer, one would
have be provided for Defendant’s use.
The court appreciates that the discovery in this case is voluminous. It also appreciates the
logistical issues posed by the geographical distance between Defendant and defense counsel and the
resulting demands on defense counsel’s time. Nevertheless, while Defendant generally has a right
to review the discovery materials that will be used against him at trial, see United States v. Hung,
667 F.2d 1105, 1108 (4th Cir.1981), these principles do not mandate Defendant’s possession of all
discovery materials. See e.g., United States v. Ruth, No. 1:18-CR-00004 EAW, 2020 WL 3063939,
at *3 (W.D.N.Y. June 9, 2020) (“[R]easonable restrictions on Defendant's access to the materials
in a jail setting are ... appropriate.”); United States v. Gerard, No. 3:16-CR-270, 2018 WL 4113351,
at *3 (W.D.N.C. Aug. 29, 2018) (denying criminal defendant's motion to retain and review all
discovery materials while in jail); Johnson v. United States, No. 2:07-CR-00924-DCN-3, 2014 WL
295157, at *5 (D.S.C. Jan. 27, 2014) (opining that it was not improper to restrain counsel from
leaving discovery materials with the petitioner in jail to safeguard the material contained therein);
cf. In re Bragg, 2012 WL 566958, at *3 (W.D. Va. Feb. 21, 2012) (noting that standard practice is
to restrict discovery materials to the possession of defense counsel); cf. United States v. Youker, No.
2:14-CR-0152-SMJ-1, 2015 WL 13864169, at *2 (E.D. Wash. Apr. 30, 2015) (noting that while a
pro se defendant is entitled to review discovery, this does not mean he is entitled to all discovery
materials in pretrial detention, especially given that the court appointed the defendant standby
counsel). The fact that Defendant cannot personally possess certain discovery does create some
inconvenience as defense counsel’s office is in Grand Forks, North Dakota. However, it does not
preclude or prevent Defendant from reviewing this material with counsel and/or counsel’s
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representative or agent.
The court finds that the restriction on who may physically possess certain discovery materials
as previously agreed upon by the Parties and as set forth in the Stipulated Discovery Order and
Protective Order is reasonable and appropriate under the circumstances. Consequently, Defendant’s
motion (Doc. No. 128) is DENIED insofar as Defendant seeks possession of discovery materials
not encompassed by Fed. R. Crim. P. 16.
Defendant’s motion (Doc. No. 128) is also DENIED as it pertains to his request to
electronically access and review discovery generally via computer. 	The court is aware that, on
previous occasions, it has permitted some defendants to review electronic discovery via computers
at their pretrial detention facilities. However, it also recognizes that the federal judicial system in
general and pretrial detention facilities in particular have greatly improved their video-conference
capabilities, giving defendants a means of reviewing discovery virtually with counsel.
The court finds that reviewing materials via video conference with defense counsel is a
viable alternative to what Defendant has proposed. Alternatively, arrangements can presumably be
made for Defendant to review discovery in the physical presence of 	defense counsel’s
representative or agent. Should defense counsel require funds to secure a representative or agent
who can sit with Defendant while he reviews discovery he is unable to retain possession of under
the terms of the Stipulated Discovery Order and Protective Order, Defendant can file the appropriate
motion.
IT IS SO ORDERED.
Dated this 5th day of December, 2023
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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