Opinion
Criminal No. C3-99-10.
July 1, 1999.
ORDER
Before the Court is an eleven-part motion by the defendant for suppression of evidence, for dismissal of the Indictment, and various discovery related issues, (docket # 22). The Court has granted the government's request for an extension of time within which to respond to defendant's pending motion, (docket # 25). Notwithstanding said extension, the Court here rules with regard to portions of defendant's motion.
1. Motion for Suppression of Evidence
The Court has referred the suppression matter to the Honorable Richard W. Goldberg, (docket # 23). A hearing will be held at a time to be announced by the Court.
2. Motion for Production of Tangible Objects
Disclosure under Rule 16 of the Federal Rules of Criminal Procedure is self-operating with regard to proper requests made by the parties. It would be inappropriate for the Court to enter an order compelling disclosure at this time absent a specific allegation that the government has failed to meet its obligations under Rule 16. Thus, defendant's request for production of tangible objects, (docket # 22(2)), is DENIED. Nonetheless, the Court finds it reasonable that a sample of the material tested, the alleged accelerant in this case, be, and is HEREBY DIRECTED, preserved and maintained by Aaron Rash of the North Dakota State Crime Lab
3. Motion to Dismiss the Indictment
The defendant asserts that the Indictment should be dismissed for lack of proof that a fire or explosive was used as required by the statute under which the defendant is charged. Kerosene has been defined as "a flammable hydrocarbon oil . . . that is used for burning in lamps and heaters or furnaces, as a fuel or fuel component for jet engines." Webster's Unabridged International Dictionary 1238 (3d ed. 1967). Something that is combustible is "capable of undergoing combustion or of burning" or "materials that catch fire and burn when subjected to fire." Id. at 453. Certainly kerosene is combustible as it is capable of burning — it catches fire, and the Court takes judicial notice of the same. Defendant's argument in this regard is insufficient to support a motion to dismiss.
The defendant also asserts that the Indictment should be dismissed because the entire Grand Jury process in this case is suspect and prejudicial to the accused. "There is a strong presumption of regularity in grand jury proceedings, and the defendant has a heavy burden in proving irregularities." United States v. McKie, 831 F.2d 819, 821 (8th Cir. 1987) (citing United States v. Kouba, 822 F.2d 768, 774 (8th Cir. 1987)). The defendant here has made no sufficient showing to call into question the validity of the grand jury proceeding. Unless the defendant can present a reasonable basis for the belief that a prejudicial impropriety has occurred, the Court will not entertain further argument in this regard.
Thus, defendant's motion to dismiss the indictment, (docket # 22(3)), is DENIED.
4. Motions for Production of Defendant's Statements, for Brady Material, for Information Regarding Informants and Witnesses, for Jencks Act Material, for Case Summary Memos, for Evidence of Prior or Subsequent Similar Acts, for Examination of Law Enforcement Personnel Files and for Disclosure of Summary Witness or Expert
The defendant makes several requests of the prosecution for production pursuant to Federal Rule of Criminal Procedure 16. However, the defendant makes no specific allegations that the government has not complied with its obligations under the rules or relevant case law. The Court is fully aware of the government's standard discovery policy, and "open file" policy, in the District of North Dakota.
Disclosure under Rule 16 of the Federal Rules of Criminal Procedure, Brady and its progeny, and the Jencks Act, see 18 U.S.C. § 3500, is self-operating with regard to proper requests made by the parties. It would be inappropriate for the Court to enter an order compelling disclosure at this time absent a specific allegation that the government has failed to meet its obligations. Thus, defendant's various production requests, (docket # 22(4)-(11)), is DENIED.
Nonetheless, the Court is concerned about delay in trial that could be anticipated in order to give the defendants adequate time to review Jencks Act material after it is turned over. Section 3500 of Title 18 of the United States Code, i.e., the Jencks Act, specifically protects government witness statements until the witness has testified on direct examination in the trial of the case. The Court recognizes that there is not an absolute obligation for the government to provide Jencks Act material in advance of trial. See United States v. White, 750 F.2d 726, 729 (8th Cir. 1984). But, in order to assure smooth progression at trial, the Court expects at the very least, that the government will turn over to the defendants Jencks Act material no later than the end of the court day previous to the day on which the subject witness will testify. THIS IS SO ORDERED and will be enforced unless the government can give the Court a good reason for a more strict application of 18 U.S.C. § 3500.
IT IS SO ORDERED.
RODNEY S. WEBB, CHIEF JUDGE UNITED STATES DISTRICT COURT