UNITED STATES OF AMERICA v. JUNAIDU SALJAN SAVAGE, a/k/a James Kamara
US Court of Appeals for the Fourth Circuit, Floyd, March 12, 2018,
Discovery – A defendant cannot force a trial judge to conduct an in camera Jencks Act review of prosecutor’s notes on the basis of speculation that because some inconsistent witness statements were turned over that there must be more inconsistencies in the notes.

Facts:
In 2012, Junaidu Savage and others devised a scheme to defraud Capital One Bank. Savage recruited Jayad Conteh, a teller at a Capital One Bank branch, to participate in the scheme.
Conteh used her position as a bank teller to access customer information for accounts that contained at least $10,000. This information was then passed on to Savage or another conspirator, frequently sending the information to an iPhone registered to Savage’s child’s mother.
Savage and the other co-conspirators would then use the costumer information to call Capital One and have the bank account contact information changed. Once this happened, they had the bank send checks that were then used to empty the victim’s account.
Conteh was arrested a few months later, after Capital One detected the scheme. Conteh pled guilty and was sentenced to 64 months in prison with $36,000 in restitution.
Conteh then entered into a proffer agreement with the government in which she explained her role in the conspiracy.
Meanwhile, Savage continued to contact Conteh, sent her money for a new lawyer, and visited her family. Savage’s visit to Conteh’s family was recorded, however, and in that recording he stated that “I am willing to help as much as I can. The restitution is $36,000.00 and I will not hesitate to pay for it. I don’t think I made over $8,000.00 on it but I am not looking at that because I was part of it.”
Savage was subsequently indicted for conspiracy to commit bank fraud and two counts of aggravated identity theft.
Prior to trial, Savage was given a summary of inconsistent statements that Conteh made during her proffer sessions: matters such as the minimum balance Conteh should look for when targeting an account and whether Conteh received any money from the scheme.
At trial, Conteh testified against Savage pursuant to an agreement to cooperate for a reduced sentence. Conteh also identified Savage’s voice as the one heard on various Capital One customer calls. Additionally, the video of Savage stating that he “was part of” the conspiracy was shown to the jury.
The jury convicted Savage on all counts. At sentencing, Savage received sentence enhancements for lying to pre-trial services among other causes.
Savage appealed, arguing that there was not enough evidence to convict him of conspiracy to commit bank fraud, that the trial court should have reviewed the prosecutor’s personal notes to make sure that she had given him all of the discovery to which he was entitled, and that his sentence enhancements were improper.

Held: The 4th Circuit affirmed Savage’s convictions. The testimony of his co-conspirator could have been enough in that circuit, and the video and voice evidence only added to the amount of evidence available. Additionally, the trial court was not required to review the prosecutor’s personal notes to make sure that she did what she was supposed to do and Savage was sentenced appropriately.

Discovery – The State must give the defendant potentially exculpatory material under its control (including material in the hands of police investigators) prior to trial.

Discovery – Brady- Failure to do so may result in a new trial where: (1) The evidence at issue is favorable to the defendant, either because it is exculpatory, or because it is impeaching; (2) that evidence was suppressed by the State, either willfully or inadvertently; and (3) the defendant was prejudiced by the failure

Brady – A defendant is prejudiced when the evidence not disclosed is “material” to the case. That is, there is a reasonable probability that the result of the trial would have been different if the evidence had been disclosed.

From the Case: “Savage has also failed to make a plausible showing that the files contain evidence that is material and favorable to the defense to require an in camera inspection under Brady. Savage argues that he can assume the government attorney’s notes contain other
inconsistencies in Conteh’s testimony because of the inconsistencies already disclosed and because of the government’s admissions that there were “inconsistencies all the way through” their meetings with Conteh.” However, “this is pure speculation lacking any specificity, and is insufficient to support a finding of materiality under Brady or to require an in camera review.”

Federal Discovery – Witness Statements – In federal court, statements by government witnesses related to the case are given to the defendant on request after a witness has testified

Federal Discovery – Witness Statements – A “statement” that would be turned over for these purposes includes:
– a written statement made by the witness and signed or otherwise adopted or approved by him
– a recording or transcription of the statement recorded contemporaneously with the making of an oral statement; or
– a statement made by the witness to a grand jury

From the Case: When making his motion to compel production, Savage did not even attempt to argue that a Jencks Act statement existed or that the defense was entitled to view the prosecutor’s personal notes, he “just wanted for the record to request anything in writing that is contemporaneous evidence of that interview.” He also has not made assertions about what additional inconsistent statements exist―only that they might exist and any additional inconsistencies would be material as impeachment evidence. This is insufficient to provide the required foundation under the Jencks Act to require the court to conduct an in camera review.