U.S. v. Carswell

Full title: UNITED STATES OF AMERICA v. EDDIE LEE CARSWELL MARK ANTHONY CARSWELL

Court: United States District Court, S.D. Georgia, Dublin Division

Date published: Aug 29, 2008

CR 308-006 (S.D. Ga. Aug. 29, 2008)

Opinion

CR 308-006.

August 29, 2008

ORDER

W. BARFIELD, Magistrate Judge

Before the Court are the various pre-trial and discovery motions filed by Defendant Mark Anthony Carswell.¹ The United States of America, by and through its attorney, Edmund A. Booth, Jr., United States Attorney, and Nancy C. Greenwood, Assistant United States Attorney, has filed a combined response to these motions and made motions of its own.

1 Defendant Eddie Lee Carswell did not file any motions. Unless otherwise specifically indicated, the use of "Defendant" herein shall refer to Defendant Mark Anthony Carswell.

GENERAL DISCOVERY MOTION

As to Defendant's general discovery requests, (doc. no. 33), the government responds that it has provided "open file" discovery in this case. The government has provided and made available 252 pages and one CD-ROM of discovery materials consisting of the investigation reports of the Bureau of Alcohol, Tobacco, Firearms, and Explosives and the United States Attorney's Office (attorney and agent work product excepted). All known statements by Defendant have also been produced or made available to him, as has his criminal record. The results of any scientific tests have been provided in the discovery materials, but if any further tests are conducted, the results will be provided upon their receipt. 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.

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. DEFENDANT'S STATEMENTS:

DENIED. MOOT.807

4. CO-CONSPIRATORS' HEARSAY EXCEPTIONS:

5. DEFENDANT'S PRIOR RECORD:

16801in pari materia. United States v. Orr825 F.2d 15371541 en banc) United States v. Roberts811 F.2d 257258 en banc)). Roberts811 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 15031509United States v. Johnson 713 F.2d 654659United States v. Colson 662 F.2d 13891391Brady v. Maryland373 U.S. 83 DENIED. United States v. Yates438 F.3d 13071318 en banc); United States v. Lyons403 F.3d 12481255-56United States v. Novaton271 F.3d 968997United States v. Baptista-Rodriguez17 F.3d 13541370608Weinstein's Federal Evidence Id. Brady v. Maryland373 U.S. 83DENIED. 16²

2 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 by prospective 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 prospective 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.

10. 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); United States v. Moreno, 588 F.2d 490, 494 (5th Cir. 1979). 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.

11. REPORTS AND CONCLUSIONS OF SCIENTIFIC TESTS OR ANALYSIS:

12. EXEMPLARS OF TESTS, FINGERPRINT IMPRESSIONS:

MOOT. Id. MOOT. United States v. Cole755 F.2d 748758-59United States v. Tucker526 F.2d 279282see also United Kingdom v. United States 238 F.3d 13121321-22 DENIED. ³ Brady v. Maryland373 U.S. 83Giglio v. United States 405 U.S. 150 Brady Brady Brady373 U.S. at 87United States v. Agurs 427 U.S. 97 GRANTED Brady

3 The Court is aware that the government has stated its intent to provide Jencks Act materials at least seven (7) days prior to trial. (Doc. no. 34, p. 1).

15. SUBSTANCE OR PROMISES OR PLEA BARGAINS BETWEEN WITNESSES AND GOVERNMENT:

In light of the government's liberal discovery policy, this request is MOOT.

MOTION FOR A BILL OF PARTICULARS

In this case, Defendant is charged with one count of Conspiracy to Distribute and to Possess with Intent to Distribute Cocaine Hydrochloride, one count of Possession with Intent to Distribute Cocaine Hydrochloride, and one count of Possession of a Firearm in Furtherance of a Drug Trafficking Crime. Defendant has filed this motion seeking from the government information concerning the exact time, date and place the alleged crimes as set forth in the indictment occurred; the exact manner that Defendant is alleged to have participated in the conspiracy charged; the places at which each overt act on which the prosecution intends to rely at trial were allegedly performed; each and every act Defendant is alleged to have personally performed; the identification of all of the persons present during each of the acts allegedly performed; and, the identity of any unindicted co-conspirators or co-racketeers known to the government.

Rule 7(f) of the Federal Rules of Criminal Procedure provides that a defendant may seek from the Court a bill of particulars setting forth the time, place, manner, and means of commission of the crime alleged in the indictment. The purpose of the bill of particulars is to give notice of the offenses charged in the indictment so that a defendant may prepare a defense, avoid surprise, or raise pleas of double jeopardy when the indictment itself is too vague for such purposes. United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986) (quoting United States v. Cole, 755 F.2d 748, 760 (11th Cir. 1985)). Where necessary, the bill of particulars supplements the indictment by providing the accused with information necessary for trial preparation. Id. Generalized discovery is not a proper purpose in seeking a bill of particulars. United States v. Warren, 772 F.2d 827, 837 (11th Cir. 1985) (quoting United States v. Colson, 662 F.2d 1389, 1391 (11th Cir. 1981)). Nor is it a device intended to secure for the defense the government's explanation of its theory of the case.United States v. Hajecate, 683 F.2d 894, 898 (5th Cir. 1982). Absent a showing that a defendant cannot prepare a defense without the government providing the identity or identities of an unindicted co-conspirator(s), such information need not be revealed in response to a motion for a bill of particulars.Warren, 772 F.2d at 837.

The determination of whether a bill of particulars should be ordered may only be decided in light of the particular circumstances of each case. United States v. Davis, 582 F.2d 947, 951 (5th Cir. 1987). The question is committed to the sound discretion of the trial court whose decision will be reversed only where denial of the motion results in surprise to a defendant at trial resulting in prejudice to his substantial rights. United States v. Hawkins, 661 F.2d 436, 451-52 (5th Cir. Unit B Nov. 1981). In this case, the government has granted liberal discovery that includes 252 pages and one CD-ROM of discovery materials consisting of the investigation reports of the Bureau of Alcohol, Tobacco, Firearms, and Explosives and the United States Attorney's Office (attorney and agent work product excepted), as well as accelerated Jencks Act disclosures. It is also noted that the indictment in the case is specific and supports each of the requisite elements of the charged offenses. Under these circumstances, information essential to the defense is being provided and the need for particulars is nonexistent. In any event, since discovery material is being made available, a ruling on a bill of particulars would appear to be premature and unnecessary. Discovery should cure any need for additional information to adequately defend the charges. Therefore, Defendant's motion is DENIED. (Doc. no. 18).

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). However, early disclosure of Jencks Act materials will avoid unnecessary delay and inconvenience to the Court and jury. The government does not oppose the motion. Therefore, the government is INSTRUCTED to provide Jencks Act materials seven (7) days prior to trial to provide defense counsel a meaningful opportunity to assess these statements.⁴ (Doc. no. 19).

4 The Court is aware of the government's disclosure that it has agreed to provide Jencks Act materials, including the grand jury transcript, at least 7 days prior to trial. (Doc. no. 34, p. 1).

MOTION TO ALLOW PARTICIPATION IN VOIR DIRE

This motion is GRANTED, (doc. no. 20), 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 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 TO ADOPT THE MOTIONS OF CO-DEFENDANT

As the only co-defendant in this case did not file any motions, this motion to adopt the motions of the co-defendant is MOOT. (Doc. no. 22).

MOTIONS FOR DISCLOSURE OF ELECTRONIC SURVEILLANCE and PRETRIAL HEARING

In this motion, Defendant seeks the disclosure of all electronic surveillance. The government has indicated that it is not aware of any electronic surveillance having been conducted. (Doc. no. 34, p. 3). Therefore, the motion for disclosure of electronic surveillance and the motion for a pretrial hearing on the electronic surveillance are MOOT. (Doc. nos. 24, 25).

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 June 23, 2008 (doc. no. 12), 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. 29).

MOTION TO RESERVE THE RIGHT TO FILE ADDITIONAL MOTIONS

This motion filed by Defendant is DENIED.⁵ (Doc. no. 31). The Court ordered that all motions in this case were to be filed within ten (10) days of the date of arraignment and that untimely motions would not be considered absent a showing of good cause for failure to file within the time set by the Court. This Order, however, does not prohibit Defendant from making his showing of cause contemporaneously with the filing of out-of-time motions.

PRELIMINARY MOTIONS TO SUPPRESS and TO DISMISS

These motions were filed to preserve Defendant's right to particularize the motions at a later date. (Doc. nos. 26, 27). However, a motion may not be filed outside the deadlines set by this Court at arraignment except by leave of Court upon a showing of cause. United States v. Smith, 918 F.2d 1501, 1509 (11th Cir. 1990); see Fed.R.Crim.P. 12(c), (e). Moreover, the motions were not filed in compliance with Loc. Crim. R. 12.1. On July 11, 2008, the Court issued an order instructing Defendant that if he intended to particularize his motions in accordance with Loc. Crim. R. 12.1, he must do so within ten (10) days. (See doc. no. 37). Defendant failed to file particularized motions. Therefore, these motions are NULLITIES. Should Defendant desire to file a particularized motion at a time subsequent to this Order, he must adequately explain his failure to timely file the same.

MOTION FOR RECIPROCAL DISCOVERY and NOTICE OF EXPERT TESTIMONY

These motions filed by the government seek reciprocal discovery from Defendant Mark Anthony Carswell under Rule 16(b) of the Federal Rules of Criminal Procedure, as well as a written summary of any evidence either Defendant Mark Anthony Carswell or Eddie Lee Carswell intends to offer under Fed.R.Evid. 702, 703, or 705.⁶ 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. 35-1, 35-2).

SO ORDERED.