Opinion
CR 106-140.
April 25, 2007
ORDER
Before the Court are the various pre-trial and discovery motions filed by Defendant Tremayne Devon Clark. The United States of America, by and through its attorney, Edmund A. Booth, Jr., Acting United States Attorney, and Patricia Green Johnson, Assistant United States Attorney, has filed a combined response to these motions.
Defendant Carlos Deandre Kyler pleaded guilty before the Honorable Dudley H. Bowen, Jr., United States District Judge, on March 21, 2007. (Doc. nos. 59-61). Defendant Kendrick Andreus Geter pleaded guilty before Judge Bowen on April 23, 2007. (Doc. no. 65).
GENERAL DISCOVERY MOTION
As to Defendant Clark's general discovery requests, (doc. no. 18), the government responds that it has provided "open file" discovery in this case. The government has provided all Defendants with discovery materials consisting of investigative reports, scientific reports, and other documents material to this case (attorney and agent work product excepted). All known statements by Defendants have also been produced, as have their respective criminal records. 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 are 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 any Defendant shall be maintained by Defendants 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:
A separate motion was filed seeking this identical discovery, and therefore, this request is addressed below.
2. NOTICE OF OTHER CRIMES OR UNCHARGED MISCONDUCT:
3. DEFENDANT'S STATEMENTS:
MOOT. MOOT. 807
5. CO-CONSPIRATORS' 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 Roberts811 F.2d at 259United States v. Jackson757 F.2d 14861493Jackson16Jackson757 F.2d at 1493 18 U.S.C. § 3500Roberts811 F.2d at 259DENIED. MOOT. MOOT. United States v. Massell823 F.2d 15031509United States v. Johnson713 F.2d 654659United States v. Colson662 F.2d 13891391Brady 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. 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 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 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:
Defense counsel 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 one week 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.
12. REPORTS AND CONCLUSIONS OF SCIENTIFIC TESTS OR ANALYSIS:
13. EXEMPLARS OF TESTS, FINGERPRINT IMPRESSIONS:
MOOT. 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.
15. DEMAND FOR EXCULPATORY EVIDENCE:
Defendant Clark 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). To some extent, Defendant's request exceeds the scope of Brady. Brady material includes 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). This request is GRANTED to the extent that the government must provide all Brady material to Defendant within five (5) days of the date it is received or its existence becomes known. With regard to impeaching information, the government must disclose this information seven (7) days prior to trial.
16. 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 NOTICE BY THE GOVERNMENT OF THE INTENTION TO RELY UPON OTHER CRIMES EVIDENCE PURSUANT TO FEDERAL RULE OF EVIDENCE 404(b)
Defendant Clark 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 December 5, 2006 (doc. no. 12), the Court directed that if the government intends to use 404(b) evidence, it must make the required disclosure 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. 19).
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 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 DISCLOSURE OF ELECTRONIC SURVEILLANCE
In this motion, Defendant Clark seeks the disclosure of all electronic surveillance. The government deems this motion satisfied by the disclosure of its entire investigatory file. In light of the government's "open file" discovery policy, the Court expects that the government has provided copies of all tape recorded conversations and transcripts of the recordings to Defendant. Also, if it has not done so already, the government will also make the originals available to counsel for Defendant. Therefore, the motion for disclosure of electronic surveillance is MOOT. (Doc. no. 21).
PRELIMINARY MOTIONS FOR SEVERANCE and SUPPRESSION
These motions for severance and suppression were filed to preserve Defendant Clark's right to particularize the motions at a later date. These motions are, however, NULLITIES. (Doc. nos. 23, 26). 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, on January 22, 2007, the Court issued an order instructing Defendant Clark that if he intended to particularize his motions, he must do so within ten (10) days. He failed to do so. Should Defendant Clark desire to file a particularized motion at a time subsequent to this order, he must adequately explain his failure to timely file same.
MOTION FOR NOTICE OF INTENT TO USE EVIDENCE ARGUABLY SUBJECT TO SUPPRESSION
The purpose of this motion is to give Defendant advance notice of any arguably suppressible evidence which will be used at trial. In this case, the attorney for the government has granted liberal discovery, giving Defendant access to all recordings of the alleged criminal transactions or statements, rap sheets, and physical evidence. This discovery should eliminate the possibility of surprise at trial. Therefore, the motion is DENIED. (Doc. no. 25).SO ORDERED.
The undersigned, a regularly appointed and qualified deputy in the office of this Clerk of this District, while conducting the business of the Court for said Division does hereby certify the following:
1. Pursuant to instructions from the court, and in the performance of my official duties, I personally placed in the U.S. Mail a sealed envelope bearing the lawful frank of the Court, and properly addressed to each of the persons, parties or attorneys listed below; and
2. That the aforementioned envelope(s) contain a copy of the documents known as order dated 4/25/07, which is part of the official records of this case.
Date of Mailing: 4/25/07
Date of Certificate: 4/25/07 Tremayne Devon Clark Jacque Hawk
SCOTT L. POFF, CLERK By: ___________________________ NAME: 1. 2. 3. ________________________________________________________________________________ 4. ________________________________________________________________________________ 5. ________________________________________________________________________________ 6. ________________________________________________________________________________ 7. ________________________________________________________________________________ Cert/Copy Cert/Copy District Judge Dept. of Justice Magistrate Judge Dept. of Public Safety Minutes Voter Registrar U.S. Probation U.S. Court of Appeals U.S. Marshal Nicole/Debbie U.S. Attorney Ray Stalvey JAG Office Cindy Reynolds