USA v. Haney, et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA, 	)
)
)
Plaintiff, 	)
)
v. 	) 	No.: 	3:24-CR-113-TAV-JEM
)
TIFFANY HANEY, 	)
ANNE WARREN, and 	)
TINA ROPER, 	)
)
Defendants. 	)
MEMORANDUM OPINION AND ORDER
Before 	the 	Court 	is 	Defendants’ 	Motion 	to 	Dismiss 	the 	Third 	Superseding
Indictment and, in the alternative, for an Evidentiary Hearing and Sanctions for Discovery
Violations and Potential Spoliation [Doc. 260]. 	The Court ordered expedited briefing
[Doc. 261]. The government has responded [Doc. 265] and defendants have replied [Doc.
266]. This matter is now ripe for the Court’s review. For the reasons below, defendants’
motion [Doc. 260] is DENIED.
A. 	Timeliness of Disclosure
In their motion, defendants contend that the government’s January 25, 2026,
disclosure of text messages between Federal Bureau of Investigation (“FBI”) Agent Emily
Celeste and potential government witnesses Michelle McKnight, Ashley Campbell, and
Jennifer Daugherty were belatedly disclosed, citing both Judge McCook’s order regarding
production of Brady material no later than December 10, 2025, and a supposed agreement
to disclose Jencks material no later than January 20, 2026 [Doc. 260, pp. 3, 11]. Defendants
Case 3:24-cr-00113-TAV-JEM Document 269 Filed 01/29/26 Page 1 of 13
PageID #: <pageID>

2
allege that the content of the text messages reveals “extensive Brady information” [Id. at
5–6]. 	Defendants further argue that Agent Celeste’s text messages with other potential
government witnesses have not been produced [Id. at 3].
The government disagrees with the characterization that this production contains
“extensive Brady information,” but states that, regardless, it turned over the messages
promptly upon receiving them from the agent, and the defense now has them in time for
effective use at trial [Doc. 265, p. 3]. 	Additionally, the government states that it did not
interpret the December 10, 2025, discovery deadline to require the disclosure of Jencks Act
material [Id.]. 	The government states that it “represented at the final pretrial conference
that it is working expeditiously to produce Jencks Act material. Although the process has
taken longer than anticipated, that remains true, and the United States anticipates producing
more material in the coming days” [Id. at 5].
Defendants reply that they “have been prejudiced by the government’s failure to
timely produce Brady, Jencks and Giglio in violation of Judge McCook’s discovery
deadlines . . . and the parties’ agreements” [Doc. 266, p. 2]. Defendants again assert that
the government agreed to produce any remaining Jencks and all Giglio material no later
than January 20, 2026 [Id. at 3]. 	Defendants request the Court exclude the testimony of
any trial witness for whom the government has not complied with its disclosure obligations
at this late stage [Id. at 2].
Case 3:24-cr-00113-TAV-JEM Document 269 Filed 01/29/26 Page 2 of 13
PageID #: <pageID>

3
First, the Court notes that, from the government’s response, it appears that all of the
information in the January 25, 2026, disclosure, and the anticipated future disclosures, is
Jencks material [See Doc. 265, pp. 3, 5]. 	But Judge McCook’s December 10, 2025,
deadline did not apply to Jencks material [See Doc. 240, p. 1 (referring generally to
“deadlines for discovery”). Indeed, as stated in United States v. Whipple:
The Jencks Act provides that the Government cannot be compelled to
produce its witnesses’ statements or reports until after the witness testifies
on direct examination. 	18 U.S.C. § 3500; see also Fed. R. Crim. P. 26.2.
The Court cannot compel the Government to disclose Jencks Act materials
at a time earlier than what the Act itself permits. 	United States v. Presser,
844 F.2d 1275, 1283 (6th Cir. 1988); see also United States v. Algie, 667
F.2d 569, 571–72 (6th Cir. 1982). 	Although the Court possesses inherent
power over the provision of discovery, it “c[an] not use its inherent power to
compel the government to produce Jencks Act material prior to trial.” United
States v. Perkins, No. 12–11–DLB–EBA, 2014 WL 3436074, *13 (E. D. Ky
July 11, 2014) (citing Algie, 667 F.2d at 572)”).
United States v. Whipple, No. 3:20-cr-31, 2021 WL 5762329, at *2 (E.D. Tenn. Dec. 2,
2021). Thus, consistent with the case law, Judge McCook did not order the production of
Jencks material by December 10, 2025, and, as a result, the January 25, 2026, disclosure
was not untimely under Judge McCook’s order.
Moreover, the Sixth Circuit has held that “[if] impeachment evidence is within the
ambit of the Jencks Act, then the express provisions of the Jencks Act control discovery of
that kind of evidence. 	The clear and consistent rule of this circuit is that the intent of
Congress expressed in the Act must be adhered to and, thus, the government may not be
compelled to disclose Jencks Act material before trial.” United States v. Presser, 844 F.2d
1275, 1283 (6th Cir. 1988). Thus, “[w]hen Brady material sought by a defendant is covered
Case 3:24-cr-00113-TAV-JEM Document 269 Filed 01/29/26 Page 3 of 13
PageID #: <pageID>

4
by the Jencks Act . . . , the terms of that Act govern the timing of the government’s
disclosure” United States v. Bencs, 28 F.3d 555, 561 (6th Cir. 1994) (footnote omitted).
“Put another way: the Jen[c]ks Act trumps Brady where impeachment evidence is Jencks
Act material.” United States v. Brazil, 395 F. App’x 205, 215 (6th Cir. 2010). Accordingly,
because the information contained in the January 26 disclosure, and the apparently
forthcoming information, is all Jencks material, only the required timeline of the Jencks
Act applies to its disclosure. 	And the Jencks Act only requires that such information be
disclosed 	“[a]fter 	a 	witness 	called 	by 	the 	United 	States 	has 	testified 	on 	direct
examination[.]” 18 U.S.C. § 3500(b); see also United States v. Watson, 787 F. Supp. 2d
667, 673 (E.D. Mich. 2011) (“[T]he Jencks Act prohibits a court from ordering disclosure
of Jencks material before the witness has testified in direct examination”). 	Because the
trial has not yet commenced, the disclosure of Jencks material is not untimely under the
statute.
The third potential deadline at issue is the alleged agreed-upon January 20, 2026,
deadline for early disclosure of Jencks material. But, while defendants repeatedly allege
that the government agreed to this deadline for disclosure of Jencks material, they have
presented the Court with no evidence of such an agreement between the parties. Nor have
defendants provided any legal authority regarding the enforceability of any agreement
between the parties to expedite the disclosure of Jencks Act material. 	Accordingly,
defendants have not established that sanctions of any sort are warranted based on the
disclosure of Jencks material beyond the allegedly agreed-upon January 20, 2026, deadline.
Case 3:24-cr-00113-TAV-JEM Document 269 Filed 01/29/26 Page 4 of 13
PageID #: <pageID>

5
Nonetheless, 	the 	Court 	notes 	that, 	“[a]lthough 	the 	Jencks 	Act 	permits 	the
government to wait for disclosure until after the witness testifies, the Sixth Circuit has
encouraged the government to provide the information earlier in appropriate cases in order
to prevent delay at trial.” 	United States v. Ravelo-Rodriguez, No. 3:11-cr-70, 2012 WL
928280, at *4 (E.D. Tenn. Mar. 19, 2012) (citing United States v. Minsky, 963 F.2d 870,
876 (6th Cir. 1992)); see also United States v. Ross, No. 3:23-cr-128, 2024 WL 6047397,
at *5 (E.D. Tenn. Oct. 11, 2024) (“While required disclosure of Jencks Act materials is
after the witness’s direct testimony, the Court encourages earlier disclosure[.]”).
Moreover, the typical practice of the United States Attorney’s Office in this district
to produce all Jencks Act materials by the Friday before trial begins the following Tuesday.
See United States v. Ross, No. 3:23-cr-128, 2024 WL 6047397, at *5 (E.D. Tenn. Oct. 11,
2024) (noting that the government represented that it “customarily discloses Jencks
materials the Friday before trial); see also United States v. Whipple, No. 3:20-cr-31, 2021
WL 5762329, at *2 (E.D. Tenn. Dec. 2, 2021); United States v. Wise, No. 3:20-cr-46, 2022
WL 17869821, at *4 (E.D. Tenn. Dec. 22, 2022); United States v. Rose, No. 3:23-cr-51,
2024 WL 5202757, at *4 (E.D. Tenn. Dec. 23, 2024); United States v. Stimpert, No. 3:21-
cr-107, 2022 WL 4391740, at *9 (E.D. Tenn. Sept. 22, 2022); United States v. Newman,
No. 3:19-cr-59, 2020 WL 7294644, at *3 (E.D. Tenn. Dec. 10, 2020). The Court strongly
encourages the government to follow this custom and produce all Jencks material to
defendants no later than Friday, January 30, 2026.
Case 3:24-cr-00113-TAV-JEM Document 269 Filed 01/29/26 Page 5 of 13
PageID #: <pageID>

6
Finally, the Court notes that it “has the authority to order disclosure of the
government’s witness list in advance of trial.” 	Watson, 787 F. Supp. 2d at 674 (citing
United States v. Kendricks, 623 F.2d 1165, 1168 (6th Cir. 1980)); see also Rose, 2024 WL
5202757, at *6 (“[T]he Court has discretion to order the government to produce discovery
not required by Rule 16, including a witness list, pursuant to its inherent powers”). Here,
to offset any potential prejudice from the disclosure of Jencks material close to the trial
date, and particularly given the anticipated length and complexity of this case, the Court
finds it appropriate to order the government to provide at least a partial witness list to aid
defendants in preparation of the recently-received materials. Accordingly, the government
is ORDERED to provide defendants with a list of its anticipated witnesses to be called the
first week of trial, that is, February 3 to February 6,1 no later than Friday, January 30,
2026.
B. 	Purported Manipulation of January 25 Disclosure
Additionally, defendants argue that the “actual text messages” and a “complete
record of all communications” between the FBI and McKnight, Campbell, and Daughtery
has not been produced [Doc. 260, p. 3]. 	Specifically, defendants argue that “numerous
irregularities and manipulations are obvious throughout the” copy of the text messages that
defendants received [Id. at 4]. Defendants note that some text messages reflect that they
took place on December 29, 2026, a future date that has not yet occurred, or jump from
1 The Court notes it is probable that little, if any, witness testimony will occur on the first
day of trial, February 3, given the anticipated length of voir dire and opening statements.
Case 3:24-cr-00113-TAV-JEM Document 269 Filed 01/29/26 Page 6 of 13
PageID #: <pageID>

7
December 2024 to December 2025 and then back to January 2025 [Id.]. Defendants also
contend that the text messages contain manual deletions, misspellings, and extensive
typographical errors, as well as redactions with no indication of such or explanation of the
redactions [Id. at 4–5]. Finally, defendants contend that the files contain “numerous blanks
and missing data elements” [Id. at 4].
The government responds that, regarding the erroneous dates, the messages were
produced with the dates assigned to them by the Textport application, and the text messages
are in the correct order [Doc. 265, p. 2]. The government also notes that it redacted certain
information from McKnight’s text messages involving the make and model of particular
individuals’ vehicles, and about a medical incident, as these details are not exculpatory,
have no impeachment value, and do not relate to the subject matter about which the witness
will testify, and thus, the government is not aware of any obligation to produce them [Id.].
Additionally, to the extent defendants complain of “blanks and missing data elements,” the
government explains that the relevant information is contained in the excel-style printout,
and the boxes that appear empty are simply “formatting quirks” [Id. at 2–3]. 	The
government contends that defendants have cited no authority supporting an assertion that
they are entitled to “text messages in their original, native format” [Id. at 4].
Defendants reply that the government has not explained how an automated export
would contain spelling errors in the header of the excel file, why timestamps are incorrect,
internally inconsistent, and out of chronological sequence, and why associated file names
and attachments contain unexplained blank spaces [Doc. 266, p. 5].
Case 3:24-cr-00113-TAV-JEM Document 269 Filed 01/29/26 Page 7 of 13
PageID #: <pageID>

8
Defendants’ arguments in this regard amount to mere speculation about the
existence of additional discoverable evidence in the government’s possession. 	The
government explained that the files provided are the files that the FBI’s Textport
application provided based on the messages on Agent Celeste’s phone, with the exception
of minor redactions, which the government has explained. 	Despite this explanation,
defendants seem to suggest that the date errors, typographical errors, and formatting issues
are evidence of nefarious concealment of information. But the government has denied the
existence of additional discoverable text messages between the relevant parties. And the
Sixth Circuit has observed that “while the Brady rule imposes a general obligation upon
the government to disclose evidence that is favorable to the accused and material to guilt
or punishment, the government typically is the sole judge of what evidence in its possession
is subject to disclosure.” Presser, 844 F.2d at 1281; see also United States v. Covington,
No. 3:23CR68-1, 2025 WL 1441972, at *7 (E.D. Va. May 19, 2025) (“There is no Brady
violation when there is no record evidence to the contrary and a Defendant offers no more
than rank speculation as to the nature of the allegedly suppressed materials” and the Jencks
Act similarly “does not authorize fishing expeditions by the defendant” (internal quotation
marks omitted)). 	Further, “because the defendants have neither particularly identified
undisclosed Jencks Act statements, nor cast substantial doubt as to whether the government
possesses information which could arguably be ‘statements’ under the Jencks Act, the court
finds that defendants have not demonstrated any need for the court to conduct an in camera
review of the government’s files for any statements which might exist.” United States v.
Case 3:24-cr-00113-TAV-JEM Document 269 Filed 01/29/26 Page 8 of 13
PageID #: <pageID>

9
Burger, 773 F. Supp. 1419, 1427 (D. Kan. 1991) (citing United States v. Page, 808 F.2d
723, 730 (10th Cir. 1987)). In sum, the Court does not find that defendants’ arguments in
this regard provide grounds for an evidentiary hearing or sanctions.
C. 	Spoliation
Next, defendants argue that the record of text messages between Agent Celeste and
Campbell reflect missing messages, and contend that they are entitled to explore the extent
to which text messages have not been preserved [Doc. 260, p. 6]. Defendants contend that
the facts that they “have been provided false, incomplete, and manipulated files purporting
to be text messages between the case agent and key government witnesses” indicates
potential spoliation, which must be developed [Id. at 7]. 	Defendants also contend that
Agent Celeste used multiple phones to communicate with government witnesses, including
a government cell phone and a personal cell phone with a (205) area code [Id. at 10].
Defendants suggest that Agent Celeste’s use of a personal cell phone “may constitute a
violation of FBI policy and have resulted in potential spoliation of evidence, including
Brady evidence” [Id. at 11].
The government responds that Agent Celeste confirmed that, except for one
logistical message, there are no missing messages where defendants suggest [Doc. 265, p.
3]. The government also states that the text messages at issue were collected from Agent
Celeste’s FBI-issued work phone, which has a (205) area code, but is not her personal cell
phone [Id. at 1 and n.1].
Case 3:24-cr-00113-TAV-JEM Document 269 Filed 01/29/26 Page 9 of 13
PageID #: <pageID>

10
In reply, defendants contend that the government has tacitly admitted that it failed
to preserve text messages, otherwise, it would not be necessary for the Court to accept the
Assistant United States Attorney’s representation that Agent Celeste made an out-of-court
representation that “there are not” missing messages [Doc. 266, pp. 3–4]. 	Defendants
assert that, regardless of when the government believed their Jencks disclosures were due,
if the government did not preserve text messages by government witnesses, those witnesses
should be excluded because it will be impossible for the government to meet their
obligation to disclose Jencks material following the witness’s direct testimony [Id. at 4].
Nothing presented by defendants suggest spoliation of text messages between Agent
Celeste and the three witnesses currently at issue. 	As noted previously, the government
has represented that the text messages provided are, with the exception of some minor
redactions, the full text messages between Agent Celeste and these three witnesses.
Defendants provide only speculation that additional evidence exists. That speculation does
not warrant an evidentiary hearing.
Further, the government’s representation that Agent Celeste confirmed that there
were no missing text messages in the gaps where defendants believe additional messages
should exist does not suggest spoliation. Rather, it appears to be a good faith effort by the
government to confirm, upon defendants’ complaint, that there were no additional text
messages that were not encompassed by the Textport application’s report of Agent
Celeste’s cell phone. 	Ultimately, defendants’ speculation regarding spoliation does not
warrant an evidentiary hearing or sanctions.
Case 3:24-cr-00113-TAV-JEM Document 269 Filed 01/29/26 Page 10 of 13
PageID #: <pageID>

11
D. 	Additional Disclosures
Defendants also contend that the government has not produced text messages from
Campbell’s, Daughtery’s, or McKnight’s telephone materials, which it was obligated to
produce by January 20, 2026, pursuant to an agreement with defense counsel [Doc. 260, p.
11].
The government responds that these phones are not in its possession, and thus, fall
outside 	its 	discovery 	obligations 	[Doc. 	265, 	pp. 	3–4 	(citing 	Fed. 	R. 	Crim. 	P.
16(a)(1)(E)(i))].
First, the Court notes that it has already determined that defendants have not
sufficiently established the existence of a January 20, 2026, deadline for disclosures.
Nonetheless, “[a]s a general rule, only documents in the government’s possession or the
possession of others working jointly with the government, are subject to Rule 16(a)(1)(C).”
United States v. Skeddle, 176 F.R.D. 258, 261 (N.D. Ohio 1997). The government states
that the phones and/or the text message records of these three witnesses are not in their
possession. Accordingly, defendants have not shown that such evidence is discoverable,
and no evidentiary hearing or sanctions are warranted on this ground.
E. 	Alleged Misconduct by Agent Celeste
Next, defendants contend the text messages between Agent Celeste and McKnight
reveal extensive misconduct, including “collud[ing] over social media postings relating to
the case,” and “sharing confidential law enforcement information” [Doc. 260, pp. 7–10].
In their reply brief, defendants assert that they “are entitled to a hearing to explore the
Case 3:24-cr-00113-TAV-JEM Document 269 Filed 01/29/26 Page 11 of 13
PageID #: <pageID>

12
extent of this corrupt use of social media by Agent Celeste and McKnight using various
aliases, if not outright exclusion of McKnight’s testimony given how compromised this
relationship was” [Doc. 266, p. 3].
Notably, however, defendants cite no legal authority in support of their assertion
that the charges in this case should be dismissed or an evidentiary hearing granted based
on the alleged misconduct of Agent Celeste in communications with McKnight. Moreover,
it appears that the propriety of the information exchanged between Agent Celeste and
McKnight is more appropriately addressed through cross-examination at trial. The Court
concludes defendants have presented no ground for the requested relief.
F. 	New Arguments in Reply
For the first time in their reply brief, defendants assert that Agent Celeste used a
“shoddy” software, rather than another software the FBI has, called “Cellebrite,” to copy
her text messages [Doc. 266, p. 6]. Defendants ask the Court to “issue an order permitting
Defendants (or the U.S. Attorney’s Office), using FTI Consulting experts at their cost, to
make an immediate Cellebrite image of Agent Celeste’s phone” [Id.]. They also ask the
Court to order the government to provide a status report regarding their collection,
preservation, and production of e-communications for all members of the investigative and
prosecution team [Id.].
“As the Sixth Circuit has held in the past, issues raised for the first time in a reply
brief are considered waived since reply briefs are intended to address the arguments made
in opposing party’s Response brief and the non-moving party ordinarily has no opportunity
Case 3:24-cr-00113-TAV-JEM Document 269 Filed 01/29/26 Page 12 of 13
PageID #: <pageID>

13
o respond to any new arguments that are asserted in a Reply brief.” United States v. Harris,
No. 5:22-cr-28, 2024 WL 4810389, at *3 (E.D. Ky. Oct. 9, 2024) (citing Scottsdale Ins.
Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008)). Regardless, defendants have cited no
legal authority for these newly raised requests. Accordingly, this requested relief is denied.
G. 	Conclusion
For the reasons set forth herein, Defendants’ Motion to Dismiss the Third
Superseding Indictment and, in the alternative, for an Evidentiary Hearing and Sanctions
for Discovery Violations and Potential Spoliation [Doc. 260] is DENIED. However, the
Court strongly encourages the government to follow its typical custom and produce all
Jencks material to defendants no later than Friday, January 30, 2026. 	Finally, the
government is ORDERED to provide defendants with a list of its anticipated witnesses to
be called the first week of trial, that is, February 3 to February 6, no later than Friday,
January 30, 2026.
IT IS SO ORDERED.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
Case 3:24-cr-00113-TAV-JEM Document 269 Filed 01/29/26 Page 13 of 13
PageID #: <pageID>