Opinion
Case No. 13-cr-20396
11-04-2013
UNITED STATES OF AMERICA, Plaintiff, v. TROY TUTT, Defendant.
Honorable Gershwin A. Drain
ORDER REGARDING DEFENDANT'S REQUEST FOR PRETRIAL DISCLOSURE OF
THE PERSONNEL RECORDS OF CERTAIN GOVERNMENT WITNESSES, SETTING
VARIOUS DEADLINES AND CANCELLING NOVEMBER 4, 2013 HEARING
I. INTRODUCTION
This matter is before the Court at the request of Defendant, who is charged with violating 18 U.S.C. § 922(g)(1), or with being a felon in possession of a firearm. Defendant has sought pretrial disclosure of Brady and Giglio material contained within the personnel and disciplinary files of two City of Dearborn police officers, who were involved in Defendant's arrest and whose anticipated testimony will provide the primary evidence against him at trial. See Dkt. Nos. 15 and 16; see also Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972) ("when the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls" under the ambit of Brady.).
Accordingly, upon Defendant's Motion for the Issuance of a Rule 17(c) subpoena seeking production of the officers' personnel and interdisciplinary files, the Court ordered their production for an in camera inspection. See Dkt. No. 21. On October 28, 2013, the officers' personnel files were submitted to the Court for in camera inspection pursuant to this Court's October 21, 2013 Order. Id.
II. LAW & ANALYSIS
As previously set forth in prior orders of this Court, Defendant, who is seeking pretrial document production by means of a subpoena duces tecum, must show that the information sought is relevant, admissible, and specific. United States v. Nixon, 418 U.S. 683, 700 (1974). In his briefing supporting his request for the pretrial production of the officers' personnel files, Defendant argued that certain civil rights actions brought against these officers provided a legitimate basis for concluding that these officers' files contained (1) relevant Brady and/or Giglio material; and (2) relevant evidence concerning the officers' reputation and character for truthfulness. Here, upon inspection of the officers' personnel files, the Court concludes that any information contained within the personnel files is either irrelevant or inadmissible, therefore Defendant is not entitled to the pretrial production of the officers' files.
As to Defendant's claim that the files may contain relevant impeachment evidence under Brady and Giglio, while Rule 608 of the Federal Rules of Evidence permits a party to attack a witness's character for truthfulness through opinion or reputation testimony, the use of extrinsic evidence is prohibited if admitted only for proving the witness's character for truthfulness or untruthfulness. Specifically, Rule 608(b) states:
Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witnesses's conduct in order to attack or support the witness's character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:Fed. R. Evid. 608(b). "The extrinsic evidence prohibition of Rule 608(b) bars any reference to the consequences that a witness might have offered as a result of an alleged bad act. For example, Rule 608(b) prohibits counsel from mentioning that witness was suspended or disciplined for the conduct that is the subject of impeachment, when that conduct is offered only to prove the character of the witness." United States v. Holt, 486 F.3d 997, 1001 (7th Cir. 2007). Ultimately, the district court has broad discretion to control cross examination and prior instances of conduct may only be inquired into "in the discretion of the court, if probative of truthfulness or untruthfulness." Id. at 1002.
(1) the witness; or
(2) another witness whose character the witness being cross-examined
has testified about.
III. FACTUAL & LEGAL CONCLUSIONS
Upon inspection of the officers' files, the Court makes the following findings:
As to Sergeant Timothy McHale:
1. The file contains no information pertaining to the civil rights action, Pryor v. Dearborn Police Department, No., 05-cv-40184.
2. The file contains a single reprimand, received on April 19, 2005. The reprimand has since been removed from the file, apparently pursuant to department procedure, on May 16, 2013. The Court concludes that Defendant may not inquire as to the facts giving rise to this reprimand.
3. There is an ongoing investigation concerning a citizen complaint arising from an arrest made in June of 2013. This investigation is not yet complete and has a report number of 13-009 CC. However, a review of the facts giving rise to this citizen complaint do not disclose any Brady or Giglio material. Thus, Defendant is not entitled to pretrial disclosure of this evidence.
As to Corporal Sergio Popescu:
1. The file contains no information pertaining to the civil rights action, Alderwish v.
Popescu, No. 10-cv-14409.
2. The file contains two written warnings and one written reprimand that were supposedly removed from the file, however the Court believes some of the information related to the issuance of these disciplinary actions still remains in Popescu's file:
a) On October 6, 2009, Popescu, after an internal investigation and resulting report, number 09-007, was prepared, Popescu was given a written reprimand for escalating a situation that could have resolved without an arrest and used an improper martial arts maneuver that was not approved through department training and could have caused injury. This reprimand was apparently supposed to be removed from Popescu's file on October 24, 2011. The Court finds this evidence is irrelevant and Defendant may not inquire into the facts giving rise to this reprimand during cross examination.3. On February 18, 2012, Popescu received a written reprimand for being involved in an accident while driving his patrol vehicle. This evidence is not relevant to any issues in this matter, therefore Defendant is not entitled to pretrial production of this evidence, nor may Defendant inquire about this reprimand during cross-examination.
b) On October 20, 2010, an internal investigation was initiated upon a complaint from a detainee who claimed his property was missing. The investigation resulted in report number 10-005 IA, with a finding that Popescu had not been involved with the theft, but did improperly list and store the detainee's property. The report recommended a written warning, however the actual written warning is absent from the file. The Court believes report number 10-005 IA may have actually resulted in a written warning as recommended, but this written warning is one of the disciplinary actions removed from Popescu's file on May 16, 2013. The Court finds this evidence is not probative on the issue of Popescu's reputation and character for truthfulness and may not be inquired into during cross examination.
4. On May 23, 2013, pursuant to an internal investigation with report number 13-005IA, Popescu received a written reprimand for violating department rules and regulations, specifically No. 24-courtesy-and No. 17-insubordination-and No. 10-unsatisfactory work performance. However, nothing contained in the file suggests the facts giving rise to the issuance of these disciplinary actions bear on his reputation and character for truthfulness. Defendant is not entitled to pretrial production of this material, nor may he inquire into the facts giving rise to these disciplinary findings during cross-examination.
5. There is an ongoing investigation concerning a citizen complaint arising from an
arrest made in June of 2013. This investigation is not yet complete and has a report number of 13-009 CC. However, a review of the facts giving rise to this citizen complaint do not disclose any Brady or Giglio material. Thus, Defendant is not entitled to pretrial disclosure of this evidence.
Accordingly, based on the above considerations, Defendant is not entitled to the pretrial production of the personnel and disciplinary files of Corporal Sergio Popescu and Sergeant Timothy McHale. The hearing set for November 4, 2013 is CANCELLED.
Additionally, the following dates shall govern in this matter:
Parties shall exchange witness and exhibit lists no later than noon on Wednesday, November 6, 2013. The Government shall also disclose Jencks material no later than noon on Wednesday, November 6, 2013. The Court will issue a decision on Defendants' pending Motions in Limine on November 12, 2013, prior to jury selection.
SO ORDERED.
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GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE