USA v. Perlstein

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Criminal Action No. 23-cr-00302-NYW-2
UNITED STATES OF AMERICA,
Plaintiff,
v.
2. 	MICHAEL VERGATO,
Defendant.
ORDER
Defendant Michael Vergato (“Defendant”) is charged with six counts of wire fraud,
in violation of 18 U.S.C. § 1343. 	[Doc. 1]. 	A seven-day trial on those charges is set to
begin on May 19, 2025. [Doc. 68 at 5; Doc. 73 at 1].
Defendant has filed two Motions seeking early disclosure of trial materials:
Defendant’s Motion to Compel Disclosure of Existence and Substance of Promises of
Immunity, Leniency, or Preferential Treatment, [Doc. 90 (the “Motion for Early Disclosure
of Giglio Material”)], and Defendant’s Motion for Early Disclosure of Jencks Material, [Doc.
91]. The Government has responded in opposition to both Motions. [Doc. 96]. For the
reasons set forth in this Order, the Motion for Early Disclosure of Giglio Material is
respectfully DENIED and the Motion for Early Disclosure of Jencks Material is respectfully
GRANTED in part and DENIED in part.
I. 	The Motion for Early Disclosure of Giglio Material
Defendant first moves for a Court order requiring the Government to disclose a
wide swath of information, broadly summarized as information about the Government’s
Case No. 1:23-cr-00302-NYW Document 103 filed 04/23/25 USDC Colorado pg 1
of 7

2
promises or agreements to provide immunity to or not prosecute any Government witness
or informant. [Doc. 90 at ¶¶ 1–2]. Defendant also asks that the Government be ordered
to disclose “[a]ll information concerning disciplinary actions taken against any law
enforcement officers who may testify in this matter as said actions relate to conduct
concerning his or her integrity, responsibilities or competency.” [Id. at ¶ 3]. He asks that
the Government be ordered to produce these materials “immediately,” but “not later than
April 28, 2025.” 	[Id. at 5]. 	Defendant’s request is made pursuant to Giglio v. United
States, 405 U.S. 150 (1972). See [Doc. 90 at 4].
The Government acknowledges its continuing duty to make disclosures, [Doc. 96
at 2], and represents that it intends to comply with all of its discovery obligations, including
those imposed by Giglio and Brady v. Maryland, 373 U.S. 83, 87 (1963), [Doc. 96 at 7].
The Government represents to the Court that it “has been providing evidence which may
be exculpatory throughout the pendency of this case and will continue to do so on a rolling
basis as such evidence comes into its possession.” 	[Id. at 7–8]. 	But the Government
objects to Defendant’s requested timelines for disclosure of Giglio materials, arguing that
these materials only need to be disclosed in enough time to effectively prepare for trial,
and given the variable nature of trial preparation, there is no basis to require the
Government to produce these materials by the requested date. [Id. at 8–9].
In Brady, the Supreme Court of the United States held that due process requires
prosecutors to disclose potentially exculpatory evidence to the defense. See 373 U.S. at
87 (“[S]uppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”). And in Giglio, the Supreme
Case No. 1:23-cr-00302-NYW Document 103 filed 04/23/25 USDC Colorado pg 2
of 7

3
Court held that exculpatory evidence includes evidence that impacts witness credibility if
the witness’s credibility will likely determine guilt or innocence. See 405 U.S. at 154.
Brady material must be disclosed to a defendant with enough time for the
defendant to make use of it in his or her defense. See United States v. Scarborough, 128
F.3d 1373, 1376 (10th Cir. 1997). But “pure Giglio impeachment evidence . . . does not
require substantial time to prepare for its effective use at trial.” 	United States v. Lujan,
530 F. Supp. 2d 1224, 1255 (D.N.M. 2008). 	Moreover, the Court “should rely on the
government’s representations of its compliance with Brady unless the defendant shows
cause to question them and the materiality of the evidence sought.” 	Id. at 1256 (citing
United States v. McVeigh, 923 F. Supp. 1310, 1314 (D. Colo. 1996)). 	At this time, the
Court “sees no reason to question the Government’s representation that it is aware of
and intends to comply with its disclosure obligations.” United States v. Guerrero, No. 22-
cr-00160-WJM, 2023 WL 5179117, at *2 (D. Colo. Aug. 11, 2023). 	And the Court
respectfully concludes that Defendant has not demonstrated why he cannot effectively
prepare for trial absent disclosure of all Giglio material by April 28, 2025. 	Accordingly,
the Motion for Early Disclosure of Giglio Material is respectfully DENIED.
II. 	The Motion for Early Disclosure of Jencks Material
In his Motion for Early Disclosure of Jencks Material, Defendant asks that the Court
order the Government to produce to Defendant all witness statements as defined in Rule
26.2(f), as well as “any and all notes and memorandum [sic] made by the government
and its counsel during the interviews of [its] witnesses.” 	[Doc. 91 at ¶¶ 3–4]. 	He
acknowledges that there is no mandatory pretrial disclosure of these items, but argues
that without early disclosure of these materials, there will be “unwarranted disruptions in
Case No. 1:23-cr-00302-NYW Document 103 filed 04/23/25 USDC Colorado pg 3
of 7

4
trial” and he will be denied “the ability to adequately and fairly defend against the charges”
in this case. 	[Id. at ¶ 6]. 	He asks that these materials be ordered disclosed “in a
reasonable time prior to trial,” but “no later than April 28, 2025.” [Id. at 3].
The Government responds that (1) it has already disclosed a substantial about of
Jencks material and will continue to do so on a rolling basis; and (2) Defendant has
provided no explanation for his requested deadline. [Doc. 96 at 4–5]. It also argues that
the 	Court 	should 	deny 	Defendant’s 	request 	for 	notes 	and 	memoranda 	because
(1) Defendant’s cited authority does not support the broad request for attorney work
product; (2) this request is beyond the plain language of Rule 16 of the Federal Rules of
Criminal Procedure and the Jencks Act; and (3) there is no right to the production of
handwritten notes that have been incorporated into final reports. [Id. at 5–7].
Rule 26.2 of the Federal Rules of Criminal Procedure states:
After a witness other than the defendant has testified on direct examination,
the court, on motion of a party who did not call the witness, must order an
attorney for the government or the defendant and the defendant’s attorney
to produce, for the examination and use of the moving party, any statement
of the witness that is in their possession and that relates to the subject
matter of the witness’s testimony.
Fed. R. Crim. P. 26.2(a). 	This rule applies to (1) “a written statement that the witness
makes and signs, or otherwise adopts or approves,” (2) “a substantially verbatim,
contemporaneously recorded recital of the witness’s oral statement that is contained in
any recording or any transcription of a recording,” or “the witness’s statement to a grand
jury, however taken or recorded, or a transcription of such a statement.” Fed. R. Crim. P.
26.2(f).
Similarly, under the Jencks Act, “[a]fter a witness called by the United States has
testified on direct examination, the court shall, on motion of the defendant, order the
Case No. 1:23-cr-00302-NYW Document 103 filed 04/23/25 USDC Colorado pg 4
of 7

5
United States to produce any statement . . . of the witness in the possession of the United
States which relates to the subject matter as to which the witness has testified.” 18 U.S.C.
§ 3500(b); see also Lujan, 530 F. Supp. 2d at 1232 (“The Jencks Act requires the
government to disclose to criminal defendants any statement made by a government
witness that is ‘in the possession of the United States’ once that witness has testified.”
(quoting 18 U.S.C. §§ 3500(a), (b)). 	The purpose of the Jencks Act is to “protect
Government files from unwarranted disclosure” and to “allow defendants materials usable
for the purposes of impeachment.” United States v. Smaldone, 544 F.2d 456, 460 (10th
Cir. 1976).
“The terms of the [Jencks Act] itself . . . limit a court’s ability to order pretrial
disclosure of witness statements.” 	Lujan, 530 F. Supp. 2d at 1254. 	“Although in many
cases the government freely discloses Jencks Act material to the defense in advance of
trial, the government may not be required to do so.” 	United States v. White, 750 F.2d
726, 729 (8th Cir. 1984); see also United States v. McKenzie, 768 F.2d 602, 609 (5th Cir.
1985) (“The trial court cannot compel disclosure of Jencks material at any earlier point.”);
United States v. Jackson, No. 91-5815, 1992 WL 42947, at *2 (4th Cir. Mar. 9, 1992) (per
curiam) (explaining that the Jencks Act requires disclosure only after a witness called by
the Government has testified on direct examination). 	But see Fed. R. Crim. P. 26.2
advisory committee’s note (“[Rule 26.2] is not intended to discourage the practice of
voluntary disclosure at an earlier time so as to avoid delays at trial.”).
Respectfully, the Court finds that Defendant has not demonstrated that the Court
may or should order the early disclosure of Jencks material. The Government represents
that it has already disclosed “a substantial amount” of Jencks material and that it will
Case No. 1:23-cr-00302-NYW Document 103 filed 04/23/25 USDC Colorado pg 5
of 7

6
continue to do so. [Doc. 96 at 4, 7]. The Court takes these statements, made by officers
of the Court, as true. See Holloway v. Arkansas, 435 U.S. 475, 486 (1978) (“[A]ttorneys
are officers of the court, and when they address the judge solemnly upon a matter before
the court, their declarations are virtually made under oath.” (cleaned up)). Defendant has
cited no legal authority expressly requiring early disclosure of Jencks material, see
[Doc. 91]; see also United States v. Coronado, No. 16-cr-03076-JCH, 2019 WL 145569,
at *2 (D.N.M. Jan. 9, 2019) (“[T]he Court cannot compel the production of Jencks Act
statements prior to trial.”), and the Court respectfully finds his assertion that delaying
disclosure until after each witness’s direct testimony “will cause unwarranted disruptions
in trial,” [Doc. 91 at ¶ 6], to be speculative and unsupported. While the Court encourages
the Government to continue its pretrial disclosures to ensure the efficient progression of
trial and promote the fairness of the proceedings, the Court will not order the early
disclosure of Jencks material.
Finally, 	the 	Court 	agrees 	with 	the 	Government 	that 	Defendant 	has 	not
demonstrated a broad entitlement to notes or memoranda taken or created by the
Government’s counsel during witness interviews. 	To be sure, “a writing prepared by a
Government lawyer relating to the subject matter of the testimony of a Government
witness that has been ‘signed or otherwise adopted or approved’ by the Government
witness is producible under the Jencks Act.” Goldberg v. United States, 425 U.S. 94, 98
(1976) (emphasis added); see also 18 U.S.C. § 3500(e)(1) (defining “statement” to
include “a written statement made by said witness and signed or otherwise adopted or
approved by” the witness). The Government represents to the Court that it “is aware that
this limited category of writing falls under the Jencks Act and will produce any such
Case No. 1:23-cr-00302-NYW Document 103 filed 04/23/25 USDC Colorado pg 6
of 7

7
materials that it possesses.” [Doc. 96 at 5]. But “[p]roper application of the [Jencks] Act
will not compel disclosure of a Government lawyer’s recordation of mental impressions,
personal beliefs, trial strategy, legal conclusions, or anything else that ‘could not fairly be
said to be the witness’ own’ statement.” Goldberg, 425 U.S. at 106 (quoting Palermo v.
United States, 360 U.S. 343, 350 (1959)).
Accordingly, the Motion for Early Disclosure of Jencks Material is GRANTED in
part, to the limited extent that the Court affirms the Government’s obligation under the
Jencks Act to disclose, after witness testimony, any writings that have been signed or
otherwise approved by the testifying witness. Id. at 98. The remainder of the Motion is
respectfully DENIED.
CONCLUSION
Accordingly, IT IS ORDERED that:
(1) 	Defendant’s Motion to Compel Disclosure of Existence and Substance of
Promises of Immunity, Leniency, or Preferential Treatment [Doc. 90] is
DENIED; and
(2) 	Defendant’s Motion for Early Disclosure of Jencks Material [Doc. 91] is
GRANTED in part and DENIED in part.
DATED: April 23, 2025 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
Case No. 1:23-cr-00302-NYW Document 103 filed 04/23/25 USDC Colorado pg 7
of 7