Opinion
No. CR 01-1186 LCS
January 10, 2002
ORDER
THIS MATTER came before the Court for a hearing on Defendants Motion for Discovery (Doc. 29), filed December 17, 2001. The Court held hearings on this Motion on January 4, 2002 and January 8, 2002 . Having considered the record, arguments of counsel, applicable law, and being otherwise fully advised, the Court finds that this Motion should be DENIED.
Defendant requests copies of the following items:
1. All photographs relating to the case;
2. the investigative report prepared by FBI Agent Viera;
3. any report prepared by any agency in relation to this case;
4. any internal review report;
5. any medical report pertaining to Agent Lopezs treatment
6. the local employment file of Agent Lopez
7. any video tape relating to the incident;
8. all tests performed on the asp used by Agent Lopez;
9. the entire employment file of Agent Lopez, including any disciplinary reports;
10. any FBI forensic report;
11. the dispatch log of the Deming USBP;
12. notes taken by Agent Viera during questioning of any witnesses;
13. internal guidelines, training manuals, videotapes and procedures dealing with the used of asp by USBP and the FBI;
14. internal guidelines dealing with the Boy Scouts Explorer programs
15. all documents relating to the operation of a Boy Scout Border Patrol Explorer post in Deming;
16. all complaints filed against Agent Lopez;
17. the Section 201 file maintained on Agent Lopez; and
18. United States Border Patrol hand book and training materials on trespass, official duties and dress (requested on January 4, 2002 ). At the hearings, counsel for the Government represented that there was no objection to producing some of the requested materials. Accordingly, the materials to which the Government has no objection should be produced. As to the other items the following ruling shall apply.
On October 2, 2001, United States Magistrate Judge Karen B. Molzen issued a standard sua sponte discovery order. (Doc. 8.) The standard order directs the Government to comply with FED. R. CRIM. P. 16, 12(i), 26.2; Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972); the Jencks Act, 18 U.S.C. § 3500; and FED. R. EVID. 404(b). (Id.) Significantly, the Order provides that if Defendant contends that the Government failed to produce material as required by the Order, the Defendant may petition the Court for disclosure only after Defendant issued a specific request to the Government and the Government denied that request. (Id.) The Order states that the Court will deny Defendants petition unless Defendant: A. Identifies with specificity the evidence required to be disclosed and the paragraph of the Order authorizing its production; and B. Identifies the AUSA to whom a specific request for disclosure was made, the date the disclosure was denied and the proffered reason for the denial. (Doc. 8.)
Defendants Motion for Discovery fails to identify with specificity the requested disclosures and fails to refer to the paragraph in the Order authorizing its production. Defendant also fails to identify the AUSA to whom the request for disclosure was made, the date the disclosure was denied, and the proffered reason for the denial. At the two hearings, Defendant offered no justification for these omissions. Defendants Motion for Discovery should be denied on these grounds alone.
Furthermore, Defendant failed to submit any authority in support of his Motion for Discovery.
At the hearing of January 4, 2002 , Defendant was directed to confer with the Government and, if further Court action were necessary, to submit authority in support of his position twenty four hours in advance of the January 8, 2002 hearing. No authority was submitted and no authority was offered at the January 8, 2002 hearing. Defendants Motion should be denied because no legal authority was advanced by Defendant.
Counsel for the Government has represented on the record that a formal request had been made pursuant to Giglio and that no such materials exist. I have also reviewed in camera the portions of the United States Border Patrol handbook and training manual at issue and find that these materials are not subject to disclosure under any applicable law. For all of the reasons herein discussed, Defendants Motion for Discovery should be denied.
WHEREFORE, IT IS ORDERED that Defendants Motion for Discovery (Doc. 29), filed December 17, 2001, is DENIED.