Opinion
CR 309-013.
September 24, 2009
ORDER
Before the Court are the various pre-trial and discovery motions filed by Defendant Celso Solis-Huerta. The United States of America, by and through its attorney, Joseph D. Newman, Acting 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, (doc. no. 11), the government responds that it has provided Defendant "open file" discovery in this case. The government has provided 178 pages of discovery materials that include investigative reports and information on relevant fingerprint examinations. The contents of Defendant's statements, as well as his criminal history, have also been provided. 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 the general discovery requests MOOT.
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. NOTICE OF OTHER CRIMES OR UNCHARGED MISCONDUCT:
DENIED.404
As soon as practicable after the defendant's arraignment, and in any event no more than twenty (20) days after the arraignment (unless the Court directs otherwise), the United States Attorney shall serve upon counsel for the defendant a written notice of any direct or circumstantial evidence of other crimes, wrongs, or acts of the defendant, or specific instances of conduct or criminal convictions of the defendant, which the Government intends to offer into evidence through either Fed.R.Evid. 404(b) or under the theory that the evidence is so inextricably intertwined with defendant's charged offense that it should be admissible.
Loc. Crim. R. 16.2; see also Loc. Crim. R. 12.3.
In its Arraignment Order dated July 22, 2009 (doc. no. 5), the Court directed that if the government intends to use 404(b) evidence, it must make the required disclosures in accordance with the Local Rules. Accordingly, this request for 404(b) disclosures, which the government has already been directed to make, is MOOT.
3. DEFENDANT'S STATEMENTS:
4. "CATCHALL" HEARSAY EXCEPTIONS:
MOOT.
5. CO-CONSPIRATORS' HEARSAY EXCEPTIONS:
6. DEFENDANT'S PRIOR RECORD:
16801in pari materia. United States v. Orr,825 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. MOOT. United States v. Massell823 F.2d 15031509United States v. Johnson713 F.2d 654659United States v. Colson662 F.2d 13891391Brady v. Maryland, 373 U.S. 83 DENIED. United States v. Yates438 F.3d 13071318(en banc); United States v. Lyons,403 F.3d 12481255-56United States v. Novaton,271 F.3d 968997United States v. Baptista-Rodriguez,17 F.3d 13541370608Weinstein's Federal Evidence Id.609Brady v. Maryland373 U.S. 83DENIED.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.
11. 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 Defendantat 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.
If defense counsel determines that he needs to apply for subpoenas based on information provided about an informant, this 14-day time period will allow counsel sufficient time to comply with this Court's instructions (doc. no. 5, p. 3) to apply for subpoenas no later than ten (10) days prior to trial.
12. REPORTS AND CONCLUSIONS OF SCIENTIFIC TESTS OR ANALYSIS:
13. EXEMPLARS OF TESTS, FINGERPRINT IMPRESSIONS:
MOOT. MOOT. United States v. Cole,755 F.2d 748758-59United States v. Tucker526 F.2d 279282see also United Kingdom v. United States, 238 F.3d 13121321-22DENIED.
Despite the Court's denial of this request because of a lack of a particularized showing, it may well be that Defendant's request has been satisfied based on the government's disclosure that the grand jury transcript has been provided to the defense. (Doc. no. 15, p. 2).
16. SUBSTANCE OR PROMISES OR PLEA BARGAINS BETWEEN WITNESSES AND GOVERNMENT:
In light of the government's liberal discovery policy, this request is MOOT.
MOTION FOR DISCLOSURE OF EXCULPATORY AND IMPEACHING MATERIAL
Defendant filed a motion seeking the disclosure of exculpatory and impeaching information in accordance with the principles ofBrady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). (Doc. no. 12). To some extent, Defendant's requests exceed the scope of Brady. Brady material includes information that is favorable to a defendant and material to the issues of guilt or punishment. Brady, 373 U.S. at 87; United States v. Agurs, 427 U.S. 97 (1976). This motion is GRANTED to the extent that the government must provide all Brady material to Defendant within five (5) days of the date it is received or its existence becomes known. With regard to impeaching information, the government must disclose this information seven (7) days prior to trial.MOTION TO ALLOW PARTICIPATION IN VOIR DIRE
This motion is GRANTED (doc. no. 13), 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;
As to the specific voir dire questions listed in this motion, the method and manner of juror voir dire is committed to the sound discretion of the district court. United States v. Schlei, 122 F.3d 944, 994 (11th Cir. 1997). This discretion extends "both to the decision whether or not to submit suggested questions to the jury, and to the decision whether to question prospective jurors collectively or individually." Id. (quoting United States v. Delval, 600 F.2d 1098, 1102 (5th Cir. 1979)). Thus, whether, and the exact manner in which, any such questions are presented to jurors will be decided by the presiding trial judge.
(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. 9). 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. 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).
PRELIMINARY MOTION TO SUPPRESS
This motion was filed to preserve Defendant's right to particularize the motion at a later date. (Doc. no. 10). However, 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); see Fed.R.Crim.P. 12(c), (e). Moreover, the motion was filed without the supporting affidavit or evidentiary citations required by Loc. Crim. R. 12.1. On August 13, 2009, the Court issued an order instructing Defendant that if he intended to particularize his motion in accordance with Loc. Crim. R. 12.1, he must do so within ten calendar (10) days. (See doc. no. 14). Defendant failed to file a particularized motion. Therefore, this motion is a NULLITY. Should Defendant desire to file a particularized motion at a time subsequent to this Order, he must adequately explain his failure to timely file the same.
SO ORDERED.