Opinion
Case No. 01-40050-01-DES.
September 6, 2001.
ORDER
This order is issued to record the rulings of the court during the hearing upon defendant's pretrial motions conducted September 4, 2001.
The Indictment in this case charges that from sometime before January 31, 2000 to May 2, 2001, defendant conspired with Joseph and Jennifer Mulay, and with other persons known and unknown, to distribute in excess of 50 grams of cocaine base (crack cocaine).
Defendant has filed several motions, many of which could be described as pertaining to discovery. This is an open file or full discovery case with one exception. The government intends to conceal the identity of one particular informant until 14 days prior to trial. This policy has been adopted, according to the government, to protect the safety of the informant. Defendant has been detained prior to trial.
With this background in mind, the court ruled as follows upon defendant's motions.
MOTION FOR GRAND JURY TRANSCRIPT — Doc. No. 28
This motion claims that it is unclear as to how defendant is involved in the conspiracy in this case; that the available discovery so far indicates a weak circumstantial case against defendant; and that it is essential for defendant to have access to the grand jury transcripts to develop his defense, find exculpatory evidence, and ascertain how the government thinks defendant is involved in the charged conspiracy.
Both sides agree that the standard for production of grand jury transcripts is "particularized need." See, e.g., U.S. v. Troutman, 814 F.2d 1428, 1452 (10th Cir. 1987). The motion before the court does not identify a particularized need as much as a general desire to know more about the government's theory of the case and to possibly develop a defense. This is an impermissibly generalized rationale for a grand jury transcript, particularly given the discovery already provided or promised to defendant. Therefore, the motion for grand jury transcripts was denied.
MOTION FOR DISCLOSURE OF JENCKS ACT MATERIALS — Doc. No. 29
This motion asks for disclosure of Jencks Act materials 30 days prior to trial. In response, the government states that it has already provided these materials or will do so substantially before trial, with the exception of the statement of the informant. Even this statement will be provided 14 days prior to trial.
The government's position comports with the law regarding disclosure of witness statements. See 18 U.S.C. § 3500. Furthermore, it should not unduly delay the proceedings in this matter. Therefore, the motion for disclosure was denied.
MOTION FOR DISCLOSURE OF IMPEACHMENT EVIDENCE — Doc. No. 30
Defendant asks for production of impeachment and exculpatory information in the hands of the government. The government, in response, appears willing to follow its obligations underBrady and Giglio to produce exculpatory and impeachment evidence. Absent the identification of a specific item of impeachment evidence which defendant wants and the government refuses to produce, the court considered this motion moot.
MOTION TO DISCLOSE EXPERT TESTIMONY — Doc. No. 31
This motion was also considered moot. The government has declared its intent to comply with the requirements of Rule 16 with regard to the disclosure of expert testimony. The court remains willing to establish a deadline for disclosure if the parties cannot work this out by themselves.
MOTION FOR NOTICE OF CO-CONSPIRATOR STATEMENTS — Doc. No. 33
This motion requests identification and disclosure of all co-conspirators not included in the indictment and all co-conspirator statements. The government contends that this information has already been produced or that such disclosure will be completed when the last informant statement is produced 14 days prior to trial. The court believes the government's position is reasonable. Therefore, the motion for notice was held to be moot.
MOTION FOR BILL OF PARTICULARS — Doc. No. 34
This motion asks for a bill of particulars identifying the other known conspirators in this case. The government notes that this is an open file case and that the conspirators either have been disclosed or will be disclosed with the release of the statement of the confidential informant 14 days prior to trial. Given these circumstances, the court held that a bill of particulars is not warranted. See U.S. v. Daniels, 95 F. Supp.2d 1160, 1166 (Kan. 2000) (denying motion for bill of particulars in an open file case); U.S. v. Villota-Gomez, 994 F. Supp. 1322, 1336 (Kan. 1998) (same).
MOTION TO PRESERVE EVIDENCE — Doc. No. 35
This motion requests an order requiring the Shawnee County Sheriff's Office and "any other law enforcement agencies involved in this matter" to preserve all tape recordings of radio transmissions, phone calls, etc. relating to the automobile stop and search of defendant's vehicle. Defendant generally asserts that these materials are relevant and necessary to the defense, but does not offer a specific explanation. The government opposes the motion because it is so general and lacks specific legal authority other than a citation to Brady.
Lacking a better justification of the relevance and necessity for the order requested, the court denied the motion to preserve evidence.
MOTION FOR ORDER DIRECTING EXAMINATION OF ALL PERSONNEL FILES OF LAW ENFORCEMENT OFFICERS INVOLVED IN THIS CASE — Doc. No. 36
This motion requests an order directing the government to examine the personnel files of all government agents who will testify or who are involved in this matter to determine whether there is any impeachment evidence. The government has agreed to review the personnel files of law enforcement witnesses and affiants for search warrants.
The court agrees that the government's position is all that is required by the case law cited by defendant, U.S. v. Henthorn, 931 F.2d 29 (9th Cir. 1991). Furthermore, it is more than appears to be required by most courts. See review of cases by Judge Crow in U.S. v. Preston, 1996 WL 254379 (Kan. 4/5/96).
Accordingly, the court granted the motion only to the extent conceded by the government. Otherwise, the motion was denied.
MOTION TO PRODUCE STATEMENTS OF NON-WITNESSES — Doc. No. 37
This motion requests production of documents relating to interviews of persons who will not be called as witnesses. The government opposes the motion. The court agrees that there is no good authority for granting this motion, unless the documents in question fall into categories of exculpatory or other information which the government has already agreed to produce. Therefore, the motion was denied.
MOTION FOR DISCLOSURE OF EVIDENCE TO BE OFFERED UNDER RULE 807 — Doc. No. 38
The government has agreed to provide notice and disclosure of any evidence offered under Rule 807. Therefore, the motion was considered moot.
DEMAND FOR DISCLOSURE OF 404(B) EVIDENCE — Doc. No. 39
The government has also agreed to provide notice and disclosure of Rule 404(b) evidence. Therefore, this pleading was also considered moot.
ADDITIONAL MATTERS
Finally, the court notes that the government has agreed to provide videotapes of interviews with certain witnesses as well as additional reports to defense counsel. The government has also agreed to provide information relating to any inducements offered to witnesses at least 14 days prior to trial. This includes inducements offered to the Mulays.