Opinion
CR-18-01695-004-TUC-JAS (EJM)
03-22-2022
United States of America, Plaintiff, v. Samuel Lee Berrelle Rakestraw, III, Defendant
REPORT AND RECOMMENDATION
Eric J. Markovich, United States Magistrate Judge
Defendant Samuel Lee Berrelle Rakestraw, III (“Rakestraw”) has filed a Motion to Preclude Based Upon a Jencks Disclosure Deadline Violation. [Doc. 1154.] Specifically, the defendant requests that the Court preclude any and all witnesses for whom the government has not yet made full disclosure. The defendant represents that the District Court ordered that the government disclose all Jencks Act material by February 18, 2022. The defendant argues preclusion of testimony and/evidence is warranted because the government has failed to meet the deadline and make the appropriate disclosures. The defendant contends that “there is undoubtedly more disclosure pertaining to the identified CI in this case that has not been made.” Id. at 1-2. For instance, the defendant posits that there has to be a cooperation agreement with the CI which has not been disclosed, even though disclosure is required under the Jencks Act. The defense also points out that if there are other cooperating witnesses in this case, the government has not disclosed their statements or cooperation agreements.
In his motion, the defendant says that he is also requesting preclusion of evidence on behalf of defendants Michael Williams, Shawmaine Moore, and Dezirae Monteen. While the Court believes that the attorneys for these additional defendants should have submitted a Joinder (as has been done for many other motions), the instant Report and Recommendation will also apply to those defendants.
In its Response, the government first points out the large amount of disclosure already made in the case, which includes several interviews, recorded calls, and grand jury testimony of a cooperating witness. [Doc. 1198.] The government acknowledges that it inadvertently failed to disclose the cooperation agreement with this witness, as well as handwritten notes of Tucson Police Detective Barber requested by the defense. The government points out that the cooperation agreement and notes are ancillary to material already disclosed. Nevertheless, the government represents that those disclosures will be made as soon as possible. The government further represents that once those disclosures are made, “it is the government's affirmation and belief that it has complied with its Jencks Act disclosure obligations, ” and the scheduling order issued by the District Court. Id. at 2.
The Court first notes that (as the government points out) the cooperation addendum is not material covered by the Jencks Act because it is not a statement made by or adopted by a witness who will testify at trial. Additionally, the handwritten notes of Detective Barber, who is deceased, are also not Jencks Act material because he will not be a witness at trial. Both the cooperation agreement and the handwritten notes are potentially Brady and/or Giglio material. The defendant made a motion for the production of that material, and the Court granted that motion. Finally, even though the requested items are not covered by the Jencks Act, the Court finds that the government's failure to disclose the requested items was inadvertent given the massive amount of disclosure in this case, and not intentional.
At oral argument, the government advised the Court and the defense that the handwritten notes were destroyed which is the practice of the Tucson Police Department once the handwritten notes are incorporated into a report.
For the reasons stated above, it is recommended that the District Court deny the Motion to Preclude (Doc. 1154).
Pursuant to Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file written objections within 14 days of being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If any objections are filed, this action should be designated case number: CR 18-01695-TUC-JAS. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).