Opinion
CASE NO. 08-20574-CR-LENARD/TURNOFF.
December 7, 2010
THIS CAUSE is before the Court on Defendant Ralph Merrill's ("Merrill") Motion for Leave to File (D.E. 956) and Defendant's Motion for in Camera Inspection of Presentence Investigation Reports and All Objections Thereto of Government Witnesses (D.E. 956-1), filed on November 16, 2010. On November 17, 2010, the Government filed its response in opposition ("Response," D.E. 966), to which Merrill filed his reply ("Reply," D.E. 976) on November 18, 2010. As stated in open court on December 2, 2010, the Court having reviewed the Presentence Investigation Reports pertaining to co-defendants Efraim Diveroli ("Diveroli"), David Packouz ("Packouz"), and Alexander Podrizki ("Podrizki") and having heard from the Government regarding the disclosures made to the defense, the Court finds that the Government need not produce the Presentence Investigation Reports or any objections pursuant to Brady v. Maryland, 373 U.S. 83 (1964). Nonetheless, Merrill's motion requests that should his motion be denied, "at least the factual (official) offense version, objections thereto and drug usage as well as mental health history sections of each Government witnesses' PSR be made a sealed Court Exhibit as part of the record should appellate proceedings be necessary." (D.E. 956-1 at 5 n. 5.) Pursuant to S.D. Fla. Local Rule 88.8(g), "[t]he recommendation as to sentencing made to the Court by the United States Probation Office shall remain confidential." Furthermore, S.D. Fla. Local Rule 88.8(h) states that "the PSI is a confidential document and neither the parties nor their counsel are authorized to duplicate or disseminate it to third parties without prior permission of the Court." Accordingly, it is ORDERED AND ADJUDGED that:
Due to the fact that this case has been extensively litigated both prior to and during the first trial (through numerous motions and requests for reconsideration), the Court advised both sides that prior to commencing the re-trial the Parties would need to seek leave of the Court to file any new motions.
The Government indicates no pertinent informal objections have been raised.
1. Consistent with this Order, Defendant Ralph Merrill's ("Merrill") Motion for Leave to File (D.E. 956) and Defendant's Motion for in Camera Inspection of Presentence Investigation Reports and All Objections Thereto of Government Witnesses (D.E. 956-1), are GRANTED to the extent that the Court has now reviewed the subject Presentence Investigation Reports and has determined that production to the defense is not required;
2. Merrill's co-defendants Efraim Diveroli, David Packouz, and Alexander Podrizki, have until December 10, 2010, to file a memorandum with the Court stating their consent and/or position as to whether their Presentence Investigation Reports should be sealed as a Court Exhibit for appellate purposes or SHOW CAUSE why such documents should not be so preserved.DONE AND ORDERED in Chambers at Miami, Florida this 7th day of December, 2010.