Opinion
CR 114-099
11-13-2014
UNITED STATES OF AMERICA v. NED HATCHER, III
ORDER
Before the Court are the various pre-trial discovery motions filed by Defendant. Many (if not all) discovery issues should be addressed in full by the Court's rulings below and the liberal discovery policy that the government has confirmed it is applying in this case. To the extent, if any, either party believes there are specific inadequacies in the discovery exchanged to date that are not addressed below, the Court directs such party to confer in good faith with the opposing party and file, if necessary, a discovery motion and supporting brief within seven days from the date of this Order.
GENERAL DISCOVERY MOTION
As to Defendant's general discovery requests, Defendant does not allege any specific inadequacies in the discovery provided by the government to date, presumably because of the government's statement that it has followed in this case its customary practice of providing liberal discovery by furnishing Defendant with the written reports from the Bureau of Alcohol, Tobacco, Firearms and Explosives, excepting attorney and agent work product and personal data redacted. (Doc. no. 26, p. 1.) All known statements by Defendant, as well as his criminal record, have also been provided. (Id. at 2.) Accordingly, the Court finds that the position of the United States Attorney in permitting liberal disclosure of the government's file pertaining to this case renders the general discovery requests MOOT. (Doc. no. 21.)
MOTION FOR DISCLOSURE OF
EXCULPATORY AND IMPEACHING MATERIAL
Defendant seeks the disclosure of exculpatory and impeaching information in accordance with the principles of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). (Doc. no. 13.) To some extent, Defendant's requests exceed the scope of the requirement in Brady for government disclosure of 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). The Court GRANTS the motion to the extent that the government must provide all Brady material to Defendant within five days of the date it is received or its existence becomes known. The government must disclose impeaching information not less than fourteen days prior to trial.
MOTION FOR DISCLOSURE OF ELECTRONIC SURVEILLANCE
In this motion, Defendant seeks the disclosure of all electronic surveillance. The government has indicated that it is not aware of any surveillance or recorded conversations in this case. (Doc. no. 26, p. 3.) Therefore, the motion for disclosure of electronic surveillance is MOOT. (Doc. no. 14.)
MOTION FOR EARLY DISCLOSURE OF JENCKS ACT MATERIAL
The Jencks Act, 18 U.S.C. § 3500, requires the government to provide a defendant with statements of witnesses immediately following their testimony in court. There is no authority for the Court to grant an early release or disclosure of that material. United States v. Schier, 438 F.3d 1104, 1112 (11th Cir. 2006); United States v. Jordan, 316 F.3d 1215, 1251 & n.78 (11th Cir. 2003); United States v. Jimenez, 613 F.2d 1373, 1378 (5th Cir. 1980). Yet because the government does not oppose the motion (insofar as it does not exceed the requirement of Fed. R. Crim. P. 16 and its liberal discovery policy), (doc. no. 26, p. 4), and early disclosure of Jencks Act material will avoid unnecessary delay and inconvenience to the Court and jury, the government is INSTRUCTED to provide Jencks Act material fourteen days prior to trial. (Doc. no. 15.)
MOTION TO PRESERVE RECORD AS TO
RACE OF EACH VENIREMAN AT TRIAL
The Equal Protection clause forbids prosecutors from challenging potential jurors solely on account of their race. Batson v. Kentucky, 476 U.S. 79, 89 (1986). As this information would be necessary for an appeal under Batson, the Court GRANTS the motion. (Doc. no. 17.)
MOTION TO ALLOW PARTICIPATION IN VOIR DIRE
The Court GRANTS this motion. (Doc. no. 18.) Unless otherwise directed by the presiding District Judge, counsel must submit to the Court, not later than seven days prior to trial, a list of questions which they desire to ask prospective jurors.
MOTION FOR LIST OF GOVERNMENT WITNESSES
Defendant requests an order directing the government to furnish a complete list of witnesses. In non-capital cases such as this case, a defendant is generally not entitled to a list of government witnesses. United States v. Massell, 823 F.2d 1503, 1509 (11th Cir. 1987); United States v. Johnson, 713 F.2d 654, 659 (11th Cir. 1983); United States v. Colson, 662 F.2d 1389, 1391 (11th Cir. 1981). While this Court retains the right to exercise its discretion in permitting Defendant to have access to a list of government witnesses, at most the government would be required to comply with this request not more than fourteen days prior to trial. Therefore, the Court DENIES this motion. (Doc. no. 19.) However, as a practical matter, it would appear that Defendant will be receiving much of this information because of the government's liberal discovery policy and because of the government's obligation to disclose material pursuant to the Jencks Act and/or Brady v. Maryland, 373 U.S. 83 (1963).
MOTION FOR NOTICE BY THE GOVERNMENT OF THE
INTENTION TO RELY UPON OTHER CRIMES EVIDENCE
PURSUANT TO FEDERAL RULE OF EVIDENCE 404fb)
Defendant seeks notice of the government's intention to use at trial evidence of "other crimes, wrongs or acts" under Fed. R. Evid. 404(b). This motion is MOOT (doc. no. 20) because the Court, in its Arraignment Order, directed the government to provide such notice in accordance with the Local Rules.
MOTION TO PROVIDE TRANSCRIPTS
OF GRAND JURY PROCEEDINGS
Defendant moves to disclose grand jury proceedings, including a transcript thereof. "A defendant must show 'particularized need' to justify infringement of the secrecy surrounding a grand jury. . . . Unsubstantiated allegations of grand jury manipulation do not satisfy the 'particularized need' standard." United States v. Cole, 755 F.2d 748, 758-59 (11th Cir. 1985); United States v. Tucker, 526 F.2d 279, 282 (5th Cir. 1976); see also United States v. Aisenberg, 358 F.3d 1327, 1348-49 (11th Cir. 2004) (recognizing requirement for showing of "particularized need" to obtain disclosure of protected grand jury materials; United Kingdom v. United States, 238 F.3d 1312, 1321-22 (11th Cir. 2001) (same). Because Defendant has not attempted to show a particularized need for these records, the motion for disclosure of grand jury proceedings is DENIED. (Doc. no. 22.)
To the extent information in the grand jury transcripts constitutes Jencks Act material, the government shall, as instructed supra, provide such information fourteen days prior to trial.
SO ORDERED this 13th day of November, 2014, at Augusta, Georgia.
/s/_________
BRIAN K. EPFS
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA