Opinion
No. 3:02-CR-236-D
November 13, 2002
MEMORANDUM OPINION AND ORDER
Defendant Katina Tamu Maxion ("Maxion") has filed various pretrial motions that the court decides by this memorandum opinion and order.
I
Maxion moves the court to compel the government to disclose several categories of information as pretrial discovery.
A
Statements by Defendant
Maxion asks the court to compel the government to disclose all oral, written, or recorded statements within its possession, custody, or control. The request includes audio recordings and the substance of any oral statements made by Maxion before or after her arrest. She also requests any statements, notes, or memoranda involving statements given to the Federal Bureau of Investigation or other law enforcement authorities. The government does not oppose this request. The court also grants her request to the extent that disclosure is required by Fed.R.Crim.P. 16(a)(1)(A), Brady v. Maryland, 373 U.S. 83 (1963), or Giglio v. United States, 405 U.S. 150 (1972). Otherwise, the motion is denied.
B Documents and Tangible Objects
Maxion requests that the government disclose all books, papers, documents, photographs, tangible objects, or copies thereof that are within the possession, custody, or control of the government and are material to the preparation of her defense or intended for use as evidence in the government's case-in-chief at trial, or that were obtained from or belong to Maxion. The government does not oppose this request. The court also grants the motion to the extent that the government must comply with Rule 16(a)(1)(C), Brady, and Gigilo. To the extent Maxion requests greater relief, her motion is denied.
C Reports of Examinations and Tests
Maxion moves for production of reports of examinations and tests conducted by federal or state authorities in investigating this case, including fingerprints or handwriting reports and results related to fingerprints, palm prints, or handwriting exemplars that were compared to known specimens. The government does not oppose this request. The government shall also comply with Rule 16(a)(1)(C) and (D), Brady, and Giglio. To the extent Maxion seeks greater relief, her motion is denied.
D Impeachment Evidence
Maxion seeks disclosure of all information the government has that will impeach any witness that the government may call at trial, including the prior criminal record or other prior material acts of misconduct of its witnesses. The government does not oppose this request. The government shall also comply with Brady and Giglio. To the extent Maxion seeks greater relief, her motion is denied.
E Inconsistent Statements
Maxion asks the court to compel the government to provide all information it has regarding inconsistent statements of any witness it may call at trial. The government does not oppose this request. The government shall also comply to the extent that Brady or Giglio requires such disclosure. The court otherwise denies the request.
F Untruthful Witnesses
Maxion requests disclosure of all information the government has regarding the untruthfulness of any witnesses it may call at trial. The government does not oppose this request. The court also grants the motion to the extent that Brady or Giglio requires such disclosure and otherwise denies it.
G Government Investigation Notes
Maxion moves to discover any notes, tapes, and/or memoranda (whether handwritten, video, audio, or otherwise) that may have been made by a government agent, including a person acting as an informer or in an investigative or undercover capacity. Rule 16(a)(2) provides that the government is not obligated to divulge reports, memoranda, or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case. Agent notes or memoranda are not considered statements within the reach of the Jencks Act unless adopted as a Jencks Act statement. Accordingly, except to the extent the government is obligated under Brady, Giglio, Rule 26.2, or the Jencks Act to produce these notes and memoranda, the motion is denied.
H Government Communications to Defendant
Maxion requests disclosure of any communications with her undertaken by any government agent, informer, or anyone else acting at the government's direction since the commencement of adversarial proceedings against him. She also requests identification of the individuals involved, the details surrounding the communications, and the statements made. The government opposes the request as overbroad and without legal basis. The court grants the motion to the extent that Brady, Giglio, or Rule 26.2 so requires. Otherwise, the court denies the motion.
I Witness Statements
Maxion moves the court to compel the government to produce all exculpatory, as well as negative exculpatory, witness statements, any evidence concerning narcotics habits or psychiatric treatment of its witnesses, and the personnel file of any government witness.
The court orders the government to comply with its obligations under Rule 26.2, Brady, and Giglio. It must, in accordance with the custom in this district, disclose Jencks Act statements no later than the end of the business day that precedes the date on which Maxion will begin her cross-examination of a witness. To the extent Maxion seeks greater relief, her motion is denied.
J Statements of Individuals who will not be Witnesses
Maxion requests disclosure of statements of individuals who will not be witnesses. The government objects on the ground that the request is overbroad. The government shall comply with Rule 26.2, Brady, Giglio, and the Jencks Act. To the extent Maxion seeks greater relief, her motion is denied.
K Electronic Surveillance
Maxion moves for disclosure of electronic surveillance. The government opposes the motion as exceeding the scope of Rule 16 to the extent that it requests conversations of witnesses.
Unlike the approach taken by the government in several other cases before this court, the government does not affirmatively represent that no electronic surveillance was used in this case. Instead, it objects to the request on a conclusory ground that is not entirely clear. It maintains that the request "exceeds the scope of Rule 16 to the extent that it requests conversations of witnesses." P. Resp. at 4. If disclosure is required by Brady, Giglio, Rule 16, Rule 26.2, 18 U.S.C. § 2510 et seq., or the Jencks Act, the government must comply. The court therefore grants the motion to the extent required by one or more of those authorities. Otherwise, the motion is denied.
L List of Government Witnesses
Maxion moves the court to order the government to disclose the names and addresses of all witnesses to the actions described in the indictment, including any percipient witnesses or individuals who may have information relevant to the case whom the government does not intend to call at trial. The government opposes the motion as overbroad on the basis that Maxion seeks information relating to all witnesses, not merely those the government expects to call at trial.
The government shall comply with Brady and Giglio. Additionally, the government will provide its witness list as required by the local criminal rules and the applicable pretrial order entered by the court. The question whether to grant a defendant's motion to discover the list of the government's witnesses is within the trial court's discretion. Downing v. United States, 348 F.2d 594, 599 (5th Cir. 1965). In her motion, Maxion has failed to demonstrate grounds showing that production of the government's witness list in advance of the time prescribed by the court's order, or that production of the address of each witness, is warranted in this case. The motion is therefore denied to the extent it requests relief that exceeds what the court has granted.
M Defendant's Prior Criminal Record
Maxion requests, and the government does not oppose providing, a copy of her criminal record. This request is granted.
II Pretrial Notice Under Rule 404(b)
Pursuant to Fed.R.Evid. 404(b), Maxion requests that the court order the government to provide pretrial notice of the government's intention to use at trial any evidence of other crimes, wrongs, or acts of Maxion and all other witnesses. The government agrees to provide the notice required by Rule 404(b) but opposes Maxion's request as exceeding the scope of the Rule because she requests notice relating not only to her but to all other witnesses.
Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
The Rule does not, as the government appears to argue, apply only to crimes, wrongs, or acts of the defendant. Although it can be expected that the government will almost always offer Rule 404(b) evidence against a defendant, the Rule pertains to evidence concerning any person as to whom the government intends to offer such evidence. See 22 Charles A. Wright Kenneth W. Graham, Jr., Federal Practice and Procedure § 5239 (1978) ("Whose `crimes, wrongs, or acts' are barred by Rule 404(b)? Although most of the cases involve proof of other acts of a party, Rule 404(b) is not so limited. Therefore, proof of the conduct of a witness, co-defendant, or even that of unidentified third persons is prohibited where the evidence is offered to prove their character as a basis for an inference as to their conduct." (emphasis added) (footnotes omitted)). Accordingly, if the government intends to offer at trial Rule 404(b) evidence regarding any person, it must provide the required notice no later than the deadline established infra at § IV.
III Motion for Brady and Giglio Material
Maxion separately moves for disclosure of several categories and sub-categories of Brady and Giglio material. The government agrees to comply with Brady and Giglio but objects to disclosure of certain categories of materials that are the subject of Maxion's motion. The court grants the motion to the extent that Maxion seeks discovery that the government is obligated to produce under a proviso of Rule 16, Rule 26.2, Brady, or Giglio, and otherwise denies it as exceeding what the government is obligated to produce.
IV
Except to the extent the Jencks Act permits later disclosure, the government shall comply no later than November 20, 2002 with the disclosure obligations imposed by this memorandum opinion and order.
SO ORDERED.