Opinion
Case No. 2:02-CR-289TC.
May 1, 2003
ORDER
This matter is before the court on various pre-trial motions. For the reasons set forth at the May 1, 2003 hearing, the court ORDERS:
1. Tyrese Sharod Smith's motion for sanctions for violation of his Sixth Amendment Rights is DENIED. (See Document ("Doc.") 674.) The court orders, however, that in the course of the trial the government may not use anything taken from Mr. Smith's jail cell that Agent Juan Becerra obtained during his search of the jail cell.
2. The government's objection to proposed expert Ron Stallworth is taken under advisement. The court will hold an evidentiary hearing concerning Mr. Stallworth's testimony after the government has put on its evidence and before the defense puts on its evidence. This hearing will be outside the presence of the jury.
3. Mr. Smith's objection to the proposed testimony of Officer Brooke Plotnick is DENIED without prejudice. Counsel for Mr. Smith may explore the admissibility and credibility of Officer Plotnick's testimony during voir dire and cross-examination.
4. The government's motion to preclude the mention of lack of arrest or state prosecution of Mr. Smith is GRANTED. The government is also precluded from offering as evidence the fact of arrest and prosecution.
5. Mr. Smith's motions for production of evidence pursuant to United States v. Giglio, 405 U.S. 150 (1972), (see Doc. 673), are GRANTED.
6. Mr. Smith's motion to exclude evidence is DENIED IN PART and GRANTED IN PART. (See Doc. 662.) Specifically,
a. The February 15, 1996 taped conversations are received in whole;
b. Pages 1 through 4, line 8 of the February 21, 1996, 16:50 taped conversations are received;
c. The February 21, 1996, 20:57 taped conversations are received in whole;
d. The February 21, 1996, 21:47 taped conversations are received in whole;
e. The February 22, 1996, 8:01 taped conversations are received in whole;
f. The following portions of the February 22, 1996, 8:49 taped conversations are received: pages 1 through 8; lines 1 through 26 of page 32; page 35; and line 52 of page 36.
g. Pages 6 through 8, 14, 15, 18, and 22 through 23 of the February 22, 1996, 12:58 taped conversations are received.
h. The February 22, 1996, 16:33 taped conversations are received, with the exception of pages 1 through 9, line 31; lines 5 through 22 on page 10; and the portions after page 19, line 30.
i. The government's photographs, including the photographs of Joseph Miera (marked as 51a, 52a, and 49a), are received into evidence.
7. The parties must submit proposed jury instructions by Monday, May 12, 2003.
8. The court will consider any additional motions submitted by Mr. Smith by Tuesday, May 6, 2003.
SO ORDERED.
BY THE COURT