Opinion
CR 109-133.
November 5, 2009
ORDER
Before the Court are the various pre-trial and discovery motions filed by Defendant Alfonso Alverez Banda. The United States of America, by and through its attorney, Joseph D. Newman, Acting United States Attorney, and Patricia Green Rhodes, Assistant United States Attorney, has filed a combined response to these motions.
GENERAL DISCOVERY MOTION
As to Defendant's general discovery requests, the government responds that it has provided Defendant "open file" discovery in this case. The government has provided Defendant with discovery materials consisting of the investigative reports, scientific reports (if any), and other documents material to this case (attorney and agent work product excepted). (Doc. no. 40, p. 1). All known statements by Defendant have also been produced, as has his criminal record. (Id. at 2). 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 Defendant's discovery requests MOOT. (Doc. no. 27).
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. MOOT.
5. CO-CONSPIRATOR 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)). Roberts,811 F.2d at 259United States v. Jackson757 F.2d 14861493Jackson16 Jackson757 F.2d at 149318 U.S.C. § 3500Roberts, 811 F.2d at 259DENIED. MOOT. MOOT. United States v. Massell, 823 F.2d 15031509 United States v. Johnson, 713 F.2d 654659United States v. Colson, 662 F.2d 13891391Brady DENIED. United States v. Yates,438 F.3d 13071318 en banc United States v. Lyons403 F.3d 12481255-56United States v. Novaton,271 F.3d 968997United States v. Baptista-Rodriguez17 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 byprospective 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 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) ("factor of primary importance in striking balance (enunciated in Roviaro) is the degree of participation exercised by the informant"); United States v. Moreno, 588 F.2d 490, 494 (5th Cir. 1979) (requiring "more than speculation about the possible usefulness of an informant's testimony" and explaining that mere "possibility of obtaining relevant testimony is too remote to require disclosure [of informant]"). The government must disclose the identity of any informant who played an active role in the criminal activity charged against Defendant at 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. 7, 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:
Id MOOT. Id. Id. MOOT. United States v. Cole,755 F.2d 748758-59United States v. Tucker,526 F.2d 279282see also United Kingdom v. United States 238 F.3d 13121321-22DENIED. Brady v. Maryland, 373 U.S. 83 Giglio v. United States 405 U.S. 150 Brady Brady Brady373 U.S. at 87United States v. Agurs427 U.S. 97 GRANTED Brady
Despite denying Defendant's request, it appears that he may well obtain the information from the government by virtue of the government's stated intent to provide Jencks Act material, including the grand jury transcript, seven (7) days prior to trial. (Doc. no. 40, p. 1).
16. SUBSTANCE OF 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 ELECTRONIC SURVEILLANCE
In this motion, Defendant seeks the disclosure of all electronic surveillance. The government has indicated that there was no electronic surveillance conducted pursuant to 18 U.S.C. §§ 2515 or 3504, and otherwise, all recordings of any criminal transaction have been provided. (Doc. no. 40, p. 7). Therefore, the motion for disclosure of electronic surveillance is MOOT. (Doc. no. 23).MOTION TO ALLOW PARTICIPATION IN VOIR DIRE
This motion is GRANTED (doc. no. 25), 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;
(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 FOR NOTICE BY THE GOVERNMENT OF THE INTENTION TO RELY UPON OTHER CRIMES EVIDENCE PURSUANT TO FEDERAL RULE OF EVIDENCE 404(b)
Defendant filed a motion seeking the government to give notice of its intention to use at trial evidence of "other crimes, wrongs or acts" under Fed.R.Evid. 404(b). The Local Rules provide:
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 September 24, 2009 (doc. no. 7), 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 motion requesting 404(b) disclosures, which the government has already been directed to make, is MOOT. (Doc. no. 26).
MOTIONS FOR RECIPROCAL DISCOVERY and NOTICE OF EXPERT TESTIMONY
These motions filed by the government seek reciprocal discovery from Defendant under Rule 16(b) of the Federal Rules of Criminal Procedure, including a written summary of any evidence Defendant intends to offer under Fed.R.Evid. 702, 703, or 705. In light of the government's willingness to provide "open file" discovery, it is entitled to this information. See Fed.R.Crim.P. 16(b)(1). Accordingly, these motions are GRANTED. (Doc. nos. 41-1, 41-2).
SO ORDERED.