Opinion
Criminal Action No. 3:04-CR-265(04)-G.
March 2, 2005
MEMORANDUM ORDER
Defendant Esther Reyes ("Reyes") has moved for disclosure and production by the government of certain material he contends is discoverable pursuant to F.R. CRIM. P. 16 and the Fifth and Sixth Amendments to the United States Constitution.
The court resolves Reyes' requests as follows:
Request (1) is GRANTED to the extent authorized by FED. R. CRIM. P. 16(a)(1)(A), (B), but is otherwise DENIED.
Request (2) is DENIED. Rule 16 does not apply to co-conspirators' statements. United States v. Tarantino, 846 F.2d 1384, 1418 (D.C. Cir.), cert. denied, 488 U.S. 867 (1988); United States v. Orr, 825 F.2d 1537,1541 (11th Cir. 1987); United States v. Roberts, 811 F.2d 257, 258 (4th Cir. 1978) (en banc).
Request (3) is GRANTED. See FED. R. CRIM. P. 16(a)(1)(D).
Request (4) is GRANTED to the extent authorized by FED. R. CRIM. P. 16(a)(1)(B) or (E), but is otherwise DENIED.
Request (5) is GRANTED to the extent authorized by FED. R. CRIM. P. 16(a)(1)(B) or (E), but is otherwise DENIED.
Request (6) is GRANTED to the extent required by FED. R. CRIM. P. 16(a)(1)(E), but is otherwise DENIED.
Request (7) is GRANTED to the extent required by the Amended Pretrial Order in this case, but is otherwise DENIED.
Request (8) is GRANTED.
Request (9) is GRANTED.
Request (10) is DENIED. Because Reyes failed to "make a sufficient showing that the informer's [if any] testimony would significantly aid the defendant in establishing [an] asserted defense," United States v. Diaz, 655 F.2d 580, 588 (5th Cir. 1981), cert. denied, 455 U.S. 910 (1982), disclosure is not required. United States v. Franklin, 598 F.2d 954, 957-58 (5th Cir.), cert. denied, 444 U.S. 870 (1979).
Requests (11) and (12) are GRANTED to the extent required by FED. R. CRIM. P. 16(a)(1)(E), but are otherwise DENIED.
Request (13) for "testimony of any witness before the Grand Jury that returned the indictment herein" is GRANTED to the extent authorized by the Jencks Act, 18 U.S.C. § 3500, the local rules, and the pretrial order in this case, but is otherwise DENIED.
Request (14) for "all exculpatory witness statements as well as negative exculpatory witness statements" is GRANTED only to the extent of exculpatory witness statements but is otherwise DENIED. The request for "negative exculpatory witness statements" is DENIED. See Andrews v. Collins, 21 F.3d 612, 626 (5th Cir. 1994) ("[T]he prosecution was under no duty to disclose that [the witnesses] could not identify [the defendant] as the man they saw. . . ."), cert. denied, 513 U.S. 1114 (1995). The request for "any evidence concerning narcotics habits or psychiatric treatment of [the government's] witnesses" and for the personnel files of the government's witnesses is GRANTED to the extent required by Brady v. Maryland, 373 U.S. 83 (1963), and its progeny but is otherwise DENIED.
Request (15) is GRANTED to the extent required by Brady and its progeny but is otherwise DENIED.
SO ORDERED.