Opinion
No.: 3:06-CR-139.
March 29, 2007
MEMORANDUM AND ORDER
This criminal case is before the Court on defendant Hershel McCaleb's Objections to Memorandum and Order [Doc. 24] filed on January 19, 2007. Defendant objects to the Memorandum and Order [Doc. 23] filed by Magistrate Judge H. Bruce Guyton. Specifically, defendant objects to Judge Guyton's decision denying the defendant's Motion to Compel Attorney for the Government to Disclose Evidence Favorable to the Defendant [Doc. 13], Motion for Discovery of Physical Testing [Doc. 14], Motion for Specific Discovery [Doc. 15], Motion for Early Disclosure of Jencks Act Material [Doc. 16], Motion for Pretrial Access to Witnesses [Doc. 17], and Motion for Bill of Particulars [Doc. 18]. The government has not responded to the defendant's objections and the time for doing so has passed. See L.R. 72.4(b).
The Court notes that defendant's filing was incorrectly categorized in the CM/ECF system, resulting in the system failing to recognize the filing as a matter which needed the Court's attention. In reviewing the record in relation to other pending motions, the Court recognized that defendant's objections were outstanding, corrected the CM/ECF entry, and will now address the objections.
As required by 28 U.S.C. § 636(b)(1), the Court has reviewed the Memorandum and Order to which the defendant has objected and notes that such order may be set aside only if it is clearly erroneous or contrary to law. In doing so, the Court has carefully considered the underlying pleadings [Docs. 13, 14, 15, 16, 17, 18, 19, 22, 24]. The Court will address each of defendant's six underlying motions in turn.
A. Motion to Compel
In his motion to compel [Doc. 13], defendant moved the Court to order the government to disclose certain exculpatory information which the defendant stated he could not obtain because the police had allegedly instructed potential witnesses not to speak with defense counsel. In responding, the government noted that it recognized its duty to provide defendant with exculpatory evidence and that the scheduling order in this matter specifically addressed that obligation. With respect to the alleged instruction to witnesses not to testify, the government argued that defendant had presented only an unsubstantiated allegation of improper conduct, insufficient to support a motion to compel.
In denying the motion, Judge Guyton held that "notwithstanding the facts alleged by Defendant, Defendant's motion to compel [Doc. 13] moves for general information, which is sufficiently covered by the Court's Order on Discovery and Scheduling [Doc. 5] and Brady, which is self-effectuating." [Doc. 23 at p. 3]. The Court agrees with Judge Guyton's ruling, as the Court's Order on Discovery and Scheduling [Doc. 5] clearly directs the government to disclose exculpatory evidence in a reasonable time as required by Sixth Circuit jurisprudence. Accordingly, defendant's objections [Doc. 24] with respect to the motion to compel are OVERRULED. However, if the defendant feels that the government is in possession of exculpatory information which it has not yet handed over, including the information defendant sought in its motion to compel, then defendant is DIRECTED to raise that issue at the final pre-trial conference currently scheduled for April 3, 2007. If any unresolved discovery issues remain after the final pre-trial conference, defendant may renew its motion to compel at that time.
B. Motion for Discovery of Physical Testing
C. Motion for Specific Discovery
OVERRULED OVERRULED
D. Motion for Early Disclosure of Jencks Act Material
In his motion for early disclosure of Jencks Act material, defendant moved the Court to require the government to produce Jencks Act material two weeks in advance of trial. The government argued that defendant was not entitled to Jencks material before trial. In denying the motion, Judge Guyton, citing to United States v. Short, 671 F.2d 178, 185 (6th Cir. 1982), held that defendant is not entitled to Jencks information until after a witness has testified at trial. Judge Guyton's statement of the law is accurate. Accordingly, defendant's objections [Doc. 24] are OVERRULED with respect to the motion for early disclosure of Jencks Act material.
E. Motion for Pretrial Access to Witnesses
In his motion for pretrial access to witnesses [Doc. 17], defendant moved the Court to order the government to provide pretrial access to certain witnesses. Defendant further argued that the police had instructed witnesses not to the speak to defense counsel. The government argued that defendant's motion was based on unsubstantiated allegations and should be denied. In denying the motion, Judge Guyton noted that defendant did have access to potential witnesses, but that the witnesses simply had refused to speak with them.
Judge Guyton is correct in noting that it is up to a witness to decide whether to speak to defense counsel before trial. United States v. Scott, 518 F.2d 261, 268 (6th Cir. 1975). However, if an agent of the government ordered a witness not to speak to defense counsel, as opposed to merely informing a witness that he could choose not to speak to defense counsel, then defendant would have a colorable claim of a due process violation. In order to make such a claim, though, "a defendant must make a showing of more than just the witness' inaccessibility." Id. There has been no such showing here, so defendant's objections [Doc. 24] are OVERRULED with respect to the motion for pretrial access to witnesses. However, defendant may certainly raise this issue at the pre-trial conference and attempt to make the appropriate showing at that time.
F. Bill of Particulars
Finally, defendant also moved the Court for an order directing the government to provide a bill of particulars in this case. The government argued that the indictment in this case is sufficient, that photographs of the firearm, magazine, ammunition, and the shooting scene had been provided to defendant, and that defendant was not entitled to any further information. In denying the motion, Judge Guyton held that the indictment contains sufficient facts and, thus, defendant is not entitled to a bill of particular. The Court agrees with Judge Guyton's analysis. Accordingly, defendant's objections [Doc. 24] are OVERRULED with respect to the motion for a bill of particulars.
For the reasons set forth herein, the defendant's objections [Doc. 24] to Judge Guyton's Memorandum and Order [Doc. 23] are OVERRULED.
IT IS SO ORDERED.