Opinion
CR 309-009.
August 18, 2009
ORDER
Before the Court are the various pre-trial and discovery motions filed by Defendant Nathan Smith. The United States of America, by and through its attorney, Edmund A. Booth, Jr., United States Attorney, and Gregory J. Hurchalla, Assistant United States Attorney, has filed a combined response to these motions.
GENERAL DISCOVERY MOTION
As to Defendant's general discovery requests, the government responds that it has provided Defendant "open file" discovery in this case. The government has provided investigative reports, reports of scientific analysis (namely fingerprint evidence), Jencks Act material available to date (including the grand jury transcript), and other documentary materials. Reports of any statements made by Defendant, as well as his criminal history, have also been provided. Additionally, the video recordings, including the bank video and the video of the car stop, have been copied and provided to defense counsel. Accordingly, the Court finds that the position of the United States Attorney in permitting full disclosure of the government's file pertaining to this case renders Defendant's discovery requests MOOT. (Doc. no. 19).
However, to ensure that Defendant's requests are in fact covered by the government's disclosures, the Court hereby requires counsel for Defendant to submit not later than five (5) days from the date of this Order a written statement describing any existing disputes or unresolved items that have not been specifically addressed elsewhere in this Order. The statement should detail the specific items sought and should include a memorandum of law.
Defense counsel is reminded that dissemination of discovery material beyond that necessary to the preparation of the defense is prohibited by Loc. Crim. R. 16.1.
Any discovery material turned over to Defendant shall be maintained by Defendant and not further disseminated. Failure to comply with the terms of this Order may result in contempt proceedings. Further addressing Defendant's specific requests for disclosure:
1. NOTICE OF EVIDENCE SUBJECT TO SUPPRESSION:
2. DEFENDANT'S STATEMENTS:
DENIED. MOOT.
4. CO-CONSPIRATORS' HEARSAY EXCEPTIONS:
5. DEFENDANT'S PRIOR RECORD:
16801in pari materia. United States v. Orr825 F.2d 15371541 en banc United States v. Roberts811 F.2d 257258 en banc Roberts811 F.2d at 259United States v. Jackson757 F.2d 14861493Jackson16Jackson757 F.2d at 1493 18 U.S.C. § 3500Roberts811 F.2d at 259DENIED. MOOT
In any event, the Court notes that the government reports that it does not possess any statements of co-conspirators. (Doc. no. 25, p. 9).
6. DOCUMENTS AND TANGIBLE OBJECTS:
The government has indicated its willingness to comply with this request, and Defendant's request is therefore, MOOT.
7. WITNESS NAMES AND ADDRESSES:
8. CRIMINAL RECORDS OF ALL WITNESSES:
United States v. Massell 823 F.2d 15031509United States v. Johnson 713 F.2d 654659United States v. Colson 662 F.2d 13891391Brady v. Maryland373 U.S. 83 DENIED. United States v. Yates438 F.3d 13071318 en banc United States v. Lyons403 F.3d 12481255-56United States v. Novaton United States v. Baptista-Rodriguez17 F.3d 13541370608Weinstein's Federal Evidence Id. Brady v. Maryland 373 U.S. 83 DENIED. 16
It appears that Defendant may have actually intended to reference Rule 16(a)(1)(E). The rule cited, Rule 16(a)(1)(C), applies to an organizational defendant. There is no such defendant in this case.
Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and:
(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its case-in-chief at trial; or
(iii) the item was obtained from or belongs to the defendant.
Under this Rule, a defendant is entitled to discover certain materials if they are either (1) material to the preparation of the defense, or (2) intended by the government to be used as evidence, or (3) were obtained from the defendant. Fed.R.Crim.P. 16(a)(1)(E). However, this Rule is qualified and limited by Rule 16(a)(2), which provides:
Except as Rule 16(a)(1) provides otherwise, this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case. Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500.
It can be seen that Rule 16(a)(2) prevents the "discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500." Even if the statements satisfy one of the requirements of Rule 16(a)(1)(E), discovery by a defendant is still barred by Rule 16(a)(2) unless those witnesses will testify at trial. In that case, the statements would be discoverable pursuant to the Jencks Act. See generally United States v. Schier, 438 F.3d 1104, 1112 (11th Cir. 2006) (reviewing requirements for disclosure of statements of witnesses testifying at trial and explicitly noting that "Jencks Act does not apply to the statements of non-testifying witnesses"). The statements of persons the government does not intend to call as witnesses at trial amount, therefore, to nothing more than internal memoranda, discovery of which is not permitted pursuant to the explicit mandate of Rule 16(a)(2). If the statements are not otherwise discoverable pursuant to the rule in Brady v. Maryland, 373 U.S. 83 (1963) and its progeny and no showing of materiality is made, they are not discoverable at all.
10. INFORMANT'S NAME, IDENTITY AND WHEREABOUTS:
Counsel for Defendant seeks the disclosure of the identity of any informants whose testimony the government intends to use at trial. Where the informant was not an active participant in the criminal activity, disclosure is not required. Roviaro v. United States, 353 U.S. 53, 61-63 (1957); United States v. Gutierrez, 931 F.2d. 1482, 1490-91 (11th Cir. 1991); United States v. Parikh, 858 F.2d 688, 696 (11th Cir. 1988); United States v. Moreno, 588 F.2d 490, 494 (5th Cir. 1979). The government must disclose the identity of any informant who played an active role in the criminal activity charged against Defendant at least fourteen (14) days prior to trial. Such disclosure will ensure an adequate opportunity for Defendant to prepare for trial and obviate any need for an in camera showing by the government pursuant to Fed.R.Crim.P. 16(d). See United States v. Kerris, 748 F.2d 610, 614 (11th Cir. 1984) ( per curiam) (re-iterating circuit precedent that in camera hearing not automatically required when informant identity requested). Defendant's request for discovery of informants is therefore, GRANTED, as set forth herein.
11. REPORTS AND CONCLUSIONS OF SCIENTIFIC TESTS OR ANALYSIS:
Defendant requests the production of all written reports of any scientific analysis or chemical analysis conducted by the government. The government states that reports of scientific analysis (namely fingerprint evidence) have been included in the discovery materials. (Doc. no. 25, p. 8). Therefore, this request is MOOT.
12. EXEMPLARS OF TESTS, FINGERPRINT IMPRESSIONS:
13. TRANSCRIPT OF GRAND JURY TESTIMONY:
MOOT. United States v. Cole755 F.2d 748758-59United States v. Tucker526 F.2d 279282 see also United Kingdom v. United States238 F.3d 13121321-22DENIED. Brady v. Maryland373 U.S. 83Giglio v. United States 405 U.S. 150 Brady Brady Brady373 U.S. at 87United States v. Agurs 427 U.S. 97 GRANTED Brady MOOT.
Despite the Court's denial of this request because of a lack of a particularized showing, it appears as though Defendant's request has been satisfied based on the government's disclosure that the grand jury transcript has been made available to defense counsel. (Doc. no. 25, p. 8).
MOTION TO INTERVIEW WITNESSES UNDER CONTROL OF THE GOVERNMENT
Defendant filed a motion seeking to interview certain witnesses he believes to be under the control of the government. (Doc. no. 23). The government states there are no potential witnesses under its control. (Doc. no. 25, p. 10). While a defendant is normally entitled access to prospective witnesses, such as disclosed informants, a defendant must first demonstrate some good faith effort in attempting to locate these people before the Court will order the government to make available the locations of these witnesses. Although the government is not required to make such witnesses available, the government may not interfere with a defendant's right to interview prospective witnesses. United States v. Manor, 936 F.2d 1238, 1242 (11th Cir. 1991); United States v. Pepe, 747 F.2d 632, 654 (11th Cir. 1984). The Court instructs the government to inform any prospective witnesses that may come under its control that it is permissible for them to speak freely with defense attorneys, if they so choose. Accordingly, the motion to interview is GRANTED as to any witness who so chooses to be examined by defense counsel prior to trial.MOTION FOR A SPEEDY TRIAL
Defendant filed a motion for speedy trial. The government does not oppose the motion. In as much as the Speedy Trial Act, 18 U.S.C. §§ 3161- 3174, applies to Defendant's case, his motion is GRANTED in accordance with the terms of that statute. (Doc. no. 22).MOTION TO ALLOW PARTICIPATION IN VOIR DIRE
This motion is GRANTED (doc. no. 24), subject to the following terms and conditions:
(a) Unless otherwise directed by the presiding District Judge, counsel must submit to the Court, not later than seven (7) days prior to trial, a list of questions which they desire to ask prospective jurors;
(b) Counsel shall take notes and avoid asking duplicative questions, unless additional clarification from a prospective juror is needed; and
(c) Counsel must address the array in the same order which the Court will later formulate for use at trial during the cross-examination of the government's witnesses.
MOTION TO RESERVE THE RIGHT TO FILE ADDITIONAL MOTIONS
This motion filed by Defendant is DENIED. (Doc. no. 21). The Court ordered that all motions in this case were to be filed within ten (10) days of the date of arraignment and that untimely motions would not be considered absent a showing of good cause for failure to file within the time set by the Court. Moreover, the Court already granted Defendant one extension of time to file motions. (See doc. nos. 16, 18). This Order, however, does not prohibit Defendant from making his showing of cause contemporaneously with the filing of out-of-time motions.
A motion may not be filed outside the deadlines set by this Court at arraignment except by leave of Court upon a showing of cause. United States v. Smith, 918 F.2d 1501, 1509 (11th Cir. 1990); Fed.R.Crim.P. 12(c), (e).
SO ORDERED.