Unopposed Motion for Protective Order by USA as to Aleta Necole Thomas — USA v. Thomas (Dkt. 5, N.D. Okla.)

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U.S. District Court for the Northern District of Oklahoma · No. 4:21-cr-00239-GKF · Doc. 5 · 2021-05-27 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF OKLAHOMA 
 
UNITED STATES OF AMERICA, 
 
Plaintiff, 
 
v. 
 
ALETA NECOLE THOMAS, 
 
 
 
Defendant. 
 
 
 
 
Case No. 21-CR-239-GKF 
 
 
Unopposed Motion for Protective Order 
 
The government hereby requests that the Court enter a protective order for 
discovery materials in this case, including materials subject to Rule 6(e) of the 
Federal Rules of Criminal Procedure.  Pursuant to Local Criminal Rule 47-4, the 
United States advises the Court that the undersigned Assistant United States 
Attorney consulted with counsel for the Defendant Aleta Thomas regarding her 
position in reference to this motion and she has no objection to the government’s 
motion.    In support thereof, states as follows: 
1) The Jencks Act requires that the Government, on motion of the Defendant, 
produce any Astatement@ of a witness it has called that relates to the subject matter to 
which the witness has testified.  18 U.S.C. ' 3500(b) (1988).  This material includes a 
transcript of a witness=s testimony before a grand jury.  Id., ' 3500(e)(3); United States 
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v. Bailey, 944 F.2d 911, 1991 WL 180087, at *1 (10th Cir. Sept. 11, 1991) (citing 
United States v. Knowles, 594 F.2d 753, 755 (9th Cir. 1979)).1 
2) Fed. R. Crim P. 26.2(a) states that after a witness has testified on direct 
examination, the Defendant is entitled to a transcript of the grand jury testimony of 
the witness. 
3) Fed. R. Crim. P. 6(e)(1) gives the United States Attorney custody and control 
of grand jury transcripts until the Court orders otherwise.  Rule 6(e)(2) states Aan 
attorney for the government . . . shall not disclose matters occurring before the grand 
jury, except as otherwise provided in these rules.@  There are several exceptions to the 
rule, and one exception allows grand jury transcripts to be released when directed by 
the Court.  Fed. R. Crim. P. 6(e)(3)(E)(i). 
4) It is the practice in this district to voluntarily disclose grand jury transcripts 
during discovery, thereby preventing delays during the trial.   The case before the court 
includes grand jury transcripts of multiple civilian witnesses as well as witness 
statements made by other civilian witnesses.    
5)  In addition, the discovery in this case contains bank records and loan application 
files for loan applications made by both Defendant Thomas and other civilian 
witnesses.    These loan applications include dates of birth, social security numbers, 
and other potentially sensitive federal tax return information.    
 
1 Pursuant to 10th Circuit Rule 36.3, a copy of Bailey, an unpublished opinion, is 
attached hereto because it has persuasive value with respect to a material issue that has 
not been addressed in a published opinion, and would assist the court in its disposition. 
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6) In order to the exchange of discovery, protect personal identifiable information 
and federal tax return information the attorneys for the government and the Defendant 
agree a protective order should be entered requiring that Defendant shall: 
a) not disseminate the transcripts and other materials provided pursuant 
to discovery for any other purpose; 
 
b) not show the transcripts and other materials provided pursuant to 
discovery to anyone with the exception of the Defendant, Defendant=s 
attorney of record in this case and those persons employed by the attorney 
who are necessary to assist counsel of record in preparation for trial in this 
case; 
 
c) not reproduce the documents and transcripts for dissemination to any 
persons or parties, except for the defendant, and the attorney for the 
defendant shall maintain complete custody and control over documents and 
transcripts, including all copies.  The Defendant’s attorney may share copies 
of documents and transcripts with expert witnesses employed by the attorney 
and who are necessary to assist counsel of record in preparation for trial in 
this case; and 
 
d) provide a copy of this protective order to all persons employed by the 
attorney who are necessary to assist counsel of record in preparation for trial 
in this case, including expert witnesses.    
 
7) Fed. R. Crim. P. 16(d)(1) provides that the Court may Afor good cause, deny, 
restrict or defer discovery or inspection, or grant other appropriate relief.@  Fed. R. 
Crim. P. 16(d)(1).  The Supreme Court has noted that the courts may use protective 
orders to restrict the use of materials produced in discovery.  Where appropriate, a trial 
court can and should place a defendant and her attorney under enforceable orders 
against unwarranted disclosure of the materials which they may be entitled to inspect.  
Alderman v. United States, 394 U.S. 165, 185 (1969). 
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WHEREFORE, the government requests that the Court enter a protective order 
for all grand jury transcripts and other investigative material provided to the Defendant 
during discovery requiring the Defendant and her counsel to comply as set forth 
therein. 
 
 
CLINTON J. JOHNSON 
ACTING UNITED STATES ATTORNEY 
 
 
/s/ Kristin Harrington 
 
Kristin Harrington, OBA No. 21185 
Assistant United States Attorney 
Northern District of Oklahoma 
110 West Seventh Street, Suite 300 
Tulsa, Oklahoma 74119 
918.382.2785 
Kristin.Harrington@usdoj.gov 
 
 
 
Certificate of Service 
 
I hereby certify that on May 27, 2021, I electronically submitted the foregoing 
document to the Clerk of Court using the ECF System for filing and transmittal of a 
Notice of Electronic Filing to the following ECF registrant: 
 
Keith Ward 
Counsel for Defendant Aleta Thomas  
 
 
 
/s/ Kristin Harrington 
 
Kristin Harrington  
Assistant United States Attorney 
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1 
8 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
 
944 F.2d 911 (Table) 
944 F.2d 911 (Table), 1991 WL 180087 (10th Cir.(Colo.)) 
Unpublished Disposition 
(Cite as: 944 F.2d 911, 1991 WL 180087 (10th Cir.(Colo.))) 
<KeyCite History> 
NOTICE:  THIS IS AN UNPUBLISHED 
OPINION. 
 
(The Court's decision is referenced in a "Table 
of Decisions Without Reported Opinions" 
appearing in the Federal Reporter. Use FI 
CTA10 Rule 36.3 for rules regarding the 
citation of unpublished opinions.) 
 
 United States Court of Appeals, Tenth 
Circuit. 
UNITED STATES of America, Plaintiff-
Appellee, 
v. 
James Robert BAILEY, a/k/a James Robert 
Nicholson, Defendant-Appellant. 
No. 90-1148. 
 
Sept. 11, 1991. 
 
 D. Colo., No. 89-CR-395. 
 
 D.Colo. 
 
 AFFIRMED. 
 
 Before McKAY and SETH, Circuit Judges, 
and BROWN, Senior District Judge. [FN1] 
 
ORDER AND JUDGMENT  [FN2] 
 
 McKAY, Circuit Judge. 
 
 **1 Defendant James Bailey appeals his 
conviction on four counts of unauthorized use 
of food coupons under 7 U.S.C. ' 2024(b) 
(1988) and aiding and abetting another in the 
unauthorized use of food coupons under 18 
U.S.C. ' 2 (1988).   Defendant filed a motion 
for a new trial that was denied by the district 
court.   He was sentenced to three years 
imprisonment on each of the counts, to be 
served concurrently.   This appeal followed. 
 
I. 
 Defendant 
and 
co-defendant 
Sinnica 
Nicholson operated Seven Seas Seafood, a 
food store in Denver, Colorado.   They were 
authorized by the United States Department of 
Agriculture to redeem food coupons.   USDA 
initiated an investigation into the possible 
unauthorized use of food coupons after 
receiving a phone call from the manager of the 
bank where the defendant and Ms. Nicholson 
had opened an account.   The bank manager 
informed USDA agents that he was suspicious 
of defendant and Ms. Nicholson due to the 
extremely large volume of food stamps they 
had deposited into their account and because 
they were withdrawing the cash shortly after 
making deposits. 
 
 USDA conducted an investigation involving 
special agents and a civilian working as an 
undercover operative.   On July 26, 1989, a 
special agent and the undercover operative 
entered Seven Seas Seafood.   They asked 
defendant if he would redeem food stamps for 
cash.   Defendant responded affirmatively and 
directed them to Ms. Nicholson who was in 
another part of the store.   Ms. Nicholson 
exchanged $200 worth of USDA food coupons 
for $100 in cash. 
 
 On August 4, 1989, the undercover operative 
entered Seven Seas Seafood and contacted 
defendant.   They left the store together, 
entered defendant's automobile, and drove 
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behind the store into an alley.   The undercover 
operative informed defendant that the food 
coupons she was about to exchange were 
stolen.   Defendant paid $80 in cash for $160 in 
food coupons.   The undercover operative also 
stated that she would have more food coupons 
to sell in the future.   Defendant indicated that 
he was willing to purchase more coupons.   
This transaction was recorded through a device 
hidden on the undercover operative and was 
viewed by two federal agents. 
 
 The next exchange occurred on September 15, 
1989.   Following a phone conversation, co-
defendant Nicholson met the undercover 
operative at the East Side Food Stamp Office 
in Denver.   Ms. Nicholson exchanged $400 for 
$850 worth of USDA food coupons.   The 
undercover operative saw defendant seated on 
a porch approximately one-half block from 
where the exchange occurred, and observed 
Ms. Nicholson walk toward him after the 
exchange was completed. 
 
 On September 18, 1989, the undercover 
operative again met Ms. Nicholson at the East 
Side Food Stamp Office after arranging the 
meeting over the telephone. Ms. Nicholson 
arrived in a car driven by defendant.   She and 
the undercover operative then exchanged $500 
in cash for $1000 worth of food coupons.   After 
the transaction, Ms. Nicholson got back into 
the car and drove away with defendant.   This 
exchange was videotaped and observed by 
federal agents. 
 
 **2 The jury returned a verdict of guilty as to 
each of these transactions.  Following a jury 
trial, appellant moved for a new trial on the 
basis of his allegation that the government 
failed to provide a complete transcript of the 
grand jury proceedings in violation of his 
discovery request.   The district court denied 
the motion. 
 
II. 
 Defendant alleges numerous errors that 
warrant reversal and a new trial.   His first 
argument is that the district court erred in 
denying his motion for a new trial due to the 
failure of the government to produce a 
complete set of grand jury transcripts.   He 
maintains that this alleged failure by the 
government to comply with his discovery 
request for Jencks Act material prejudiced his 
trial preparation.   The government asserts that 
the only grand jury testimony upon which the 
indictment was based was the testimony of 
USDA Special Agent Hopko, and that the 
complete grand jury transcript was provided to 
defense counsel. 
 
 Whether to grant a motion for a new trial is a 
decision within the sound discretion of the 
district court.   We will not reverse the court's 
decision absent a plain abuse of that discretion.  
United States v. McIntyre, 836 F.2d 467, 472 
(10th Cir.1987);  United States v. Troutman, 814 
F.2d 1428, 1455 (10th Cir.1987). 
 
 The Jencks Act requires that the government, 
on motion of the defendant, produce any 
"statement" of a witness it has called that 
relates to the subject matter to which the 
witness has testified.  18 U.S.C. ' 3500(b) 
(1988). This material includes a transcript of a 
witness's testimony before a grand jury.  Id., ' 
3500(e)(3);  United States v. Knowles, 594 F.2d 
753, 755 (9th Cir.1979). 
 
 Defendant points to passages in the grand jury 
transcript that he contends demonstrate the 
government did not produce the entire grand 
jury proceedings. The first example involves a 
statement by Agent Hopko that the USDA 
investigation of defendant stemmed from a 
Denver police complaint about defendant and 
Ms. Nicholson trafficking in food stamps and 
also possibly trafficking in narcotics.   The 
government then asked a question referring to 
"these various episodes, that the Grand Jurors 
heard about involving drugs" and sought to 
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clarify that no exchange of drugs ever occurred.   
Record, vol. 1, doc. 22, exh. 1 at 3.   Defendant 
asserts that this reference indicates that there 
was earlier grand jury testimony.  "Various 
episodes," however, could just as easily have 
been a reference to Agent Hopko's statement 
about 
the 
Denver 
police 
complaint.   
Moreover, this excerpt does not demonstrate 
that the district court abused its discretion in 
failing to grant a new trial. 
 
 Defendant 
also 
maintains 
that 
the 
government's reference to Agent Hopko's prior 
summary of nine food coupon transactions 
demonstrates that the witness had testified at a 
different grand jury proceeding about these 
transactions. Id. at 8.   Agent Hopko, however, 
had summarized the trafficking of food 
coupons a few moments earlier during his 
testimony on that day, and, thus, his statement 
does not establish that there was prior grand 
jury testimony. 
 
 **3 Finally, defendant asserts that the 
Assistant United States Attorney improperly 
tainted the grand jury when, in response to a 
grand juror's concern about the ability of 
untrustworthy 
individuals 
to 
obtain 
authorization to redeem food coupons, the 
AUSA mentioned that defendant had an 
extensive criminal history but was able to 
obtain 
authorization. 
 
 
The 
AUSA 
immediately cautioned the grand jury that they 
were not to take into consideration defendant's 
criminal history when deciding whether to 
return an indictment. Id. at 19-20.   In light of 
the fact that this information came out in 
response to a grand juror's question and that 
the AUSA properly cautioned the grand jury, 
we cannot conclude that the district court 
abused its discretion in denying defendant's 
motion for a new trial. 
 
III. 
 Defendant maintains that the evidence was 
insufficient to support his convictions for 
wilfully assisting Ms. Nicholson in the 
unauthorized acquisition of food coupons on 
September 15, 1989, and September 18, 1989. 
Evidence is considered sufficient to support a 
criminal conviction if, viewing all the evidence-
-both direct and circumstantial--in the light 
most favorable to the government, a reasonable 
jury could find the defendant guilty beyond a 
reasonable doubt.  United States v. Culpepper, 
834 F.2d 879, 881 (10th Cir.1987). 
 
 During the August 4, 1989, exchange of food 
coupons for cash, defendant stated that he was 
interested in acquiring additional food coupons 
in the future. Further, during the initial 
exchange on July 26, 1989, defendant directed 
the undercover operative and the special agent 
to Ms. Nicholson in order to consummate the 
exchange.   In addition, evidence was 
presented showing that defendant and Ms. 
Nicholson were authorized to redeem food 
coupons, that they were co-signators on the 
bank account into which they deposited food 
coupons, that they both deposited coupons, 
and that they both withdrew large amounts 
cash from that account shortly after making 
deposits.   Although defendant did not execute 
the transaction himself on September 18 but 
drove Ms. Nicholson to the site and drove 
away with her after the exchange was 
completed, a reasonable jury could infer that 
defendant willfully assisted Ms. Nicholson by 
transporting her to and from the site.   
Similarly, on September 15, defendant waited 
one-half block from where the transaction 
occurred, and Ms. Nicholson walked towards 
him after the exchange.   Although there was 
no 
evidence 
showing 
that 
defendant 
transported Ms. Nicholson to the site, a 
permissible inference from all the evidence 
presented is that he wilfully assisted her.   
Viewing the evidence and the reasonable 
inferences to be drawn therefrom in the light 
most favorable to the government, we 
conclude that the jury could find beyond a 
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reasonable doubt that defendant wilfully 
assisted Ms. Nicholson in the unlawful 
acquisition of food coupons on both September 
15 and September 18. 
 
IV. 
 Defendant contends that the district court 
abused its discretion by admitting extrinsic 
evidence of prior inconsistent statements to 
impeach Ms. Nicholson. He argues that the 
evidence was improperly admitted because she 
did not have an adequate opportunity to 
explain the prior statements as required by 
Rule 613(b) of the Federal Rules of Evidence.   
The decision of whether to admit evidence is a 
matter committed to the discretion of the 
district court. United States v. Alexander, 849 
F.2d 1293, 1301 (10th Cir.1988). 
 
 **4 During the government's case-in-chief, 
Ms. Nicholson stated that defendant did not 
give her money to purchase food coupons.   
The government sought to impeach her by 
introducing the testimony of government 
agents who testified that Ms. Nicholson had 
previously told them that the money came 
from defendant.   Ms. Nicholson was given an 
opportunity to explain her prior statements, 
record, vol. 3, at 263, and the district court 
properly instructed the jury that the testimony 
of the government agents was for the limited 
purpose of impeaching Ms. Nicholson's 
credibility, and not to establish the truth of the 
prior statements.  Id., vol. 4 at 339. [FN3]  
Under these circumstances, we conclude that 
the district court did not abuse its discretion in 
admitting the agents' testimony of Ms. 
Nicholson's prior inconsistent statements. 
 
V. 
 Defendant also argues that the district court 
erred by permitting a government agent to 
testify about a conversation he overheard 
between Ms. Nicholson and the undercover 
operative.   The conversation had been 
recorded, but the audio tape was inaudible.   
Defendant argues that the admission of the 
testimony violated Rule 1004 of the Federal 
Rules of Evidence because the tape itself was 
the best evidence of the conversation and a 
proper foundation was not presented as to why 
the tape could not be produced at trial.   We 
must determine whether the district court 
abused its discretion in admitting the agent's 
testimony.   Alexander, 849 F.2d at 1301. 
 
 Defendant misapprehends the best evidence 
rule and the purposes for which the agent's 
testimony was offered.   The best evidence rule 
requires the production of a writing, recording, 
or photograph in order to prove its contents. 
Fed.R.Evid. 1002.   In this case, however, the 
government sought to establish the contents of 
Ms. 
Nicholson's 
conversation 
with 
the 
undercover operative, not the sounds preserved 
on the tape recording.   Therefore, the best 
evidence rule is inapplicable.  See United States 
v. Rose, 590 F.2d 232, 237 (7th Cir.1978), cert. 
denied, 442 U.S. 929 (1979);  United States v. 
Gonzales-Benitez, 537 F.2d 1051, 1053-54 (9th 
Cir.), cert. denied 429 U.S. 923 (1976).   The 
district court did not abuse its discretion in 
admitting the agent's testimony. 
 
VI. 
 Defendant's last two contentions are not 
persuasive.   He argues that the district court 
erred in denying his motion for a mistrial based 
on a government witness's reference to a 
"criminal history check" in response to a 
question about the training of the undercover 
operative.   Record, vol. 4, at 303. Taken in 
context, this comment referred to the screening 
of individuals to determine their fitness as 
undercover operatives.   The district court's 
denial of defendant's motion for a mistrial was 
not an abuse of discretion.  See United States v. 
Peveto, 881 F.2d 844, 859 (10th Cir.), cert. 
denied, 110 S.Ct. 348 (1989). 
 
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 Finally, defendant contends that the cumulative effect of the alleged errors require that we vacate his 
conviction.   In light of our determination that the district court did not err as defendant alleges, 
cumulative-error analysis is inappropriate.  See United States v. Rivera, 900 F.2d 1462, 1470-71 (10th 
Cir.1990). 
 
 **5 The district court's judgment is AFFIRMED. 
 
FN1. The Honorable Wesley E. Brown, Senior District Judge for the District of Kansas, sitting 
by designation. 
 
FN2. This order and judgment has no precedential value and shall not be cited, or used by any 
court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of 
the case, res judicata, or collateral estoppel.   10th Cir.R. 36.3. 
 
FN3. The extrinsic evidence presented was the testimony of the government agents based on 
their recollection of their earlier conversation with Ms. Nicholson.   Record, vol. 4 at 341, 352-
53.   Contrary to defendant's position, Ms. Nicholson was not impeached by documentary 
evidence. 
 944 F.2d 911 (Table), 1991 WL 180087 (10th Cir.(Colo.)) Unpublished Disposition 
 
END OF DOCUMENT 
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