The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
This case was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #14.
The defendant, Welton Miles, a/k/a "Rick" ("the defendant"), is charged in four counts of a five-count Indictment with being a felon in possession of ammunition, namely one hundred ninety-four (194) CCI Mini Mag .22 Caliber long rifle cartridges and ten (10) 16 gauge Remington rifled slugs, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 1). Dkt. #13. The indictment also charges the defendant, along with two co-defendants, Cyrus Q. Benning and Christopher J. Thomas, with conspiracy to possess cocaine base with intent to distribute, in violation of Title 21 U.S.C. § § 841(a)(1) and 841 (b)(1)(A) and Title 21 U.S.C. § 846 (Count 3); possession with intent to distribute cocaine base, in violation of Title 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) and Title 18 U.S.C. § 2 (Count 4); and possession of cocaine base in violation of Title 21 U.S.C. § 844(a) and Title 18 U.S.C. § 2 (Count 5). Dkt. #13.
The defendant has filed a motion seeking: (1) Brady material; (2) preclusion of any items which have not been disclosed as required pursuant to Fed. R. Crim. P. 16; (3) in camera review of the application in support of the search warrant for 44 Smith Street; (4) disclosure of the identity of confidential informants; (5) sentencing information; (6) FRE 404(b) materials; and joinder in the motions of his co-defendants. Dkt. #18. The government has filed a response to these requests. Docket #22. Each of these requests will be separately addressed herein; the defendant's motion for suppression of the evidence obtained from 44 Smith Street and from the female passenger in the Lincoln Navigator automobile will be addressed in a separate Report, Recommendation and Order. Dkt. #18.
The defendant asserts that he advised one of the Lackawanna police officers conducting the search at 44 Smith Street that he had just moved into the apartment, that he had no knowledge of the presence of the ammunition, and that it must have been there when he moved in. Dkt. #18, p.6. The defendant requests a copy of this exculpatory statement from the government pursuant to Fed. R. Crim. P. 16(a)(1)(A) & (B) and Brady v. Maryland, 373 U.S. 83 (1963). Dkt. #18, p.6. Alternatively, the defendant asks the Court to order the government "to inquire of its agents, as well as the Lackawanna Police Department officer involved in the execution of the search at 44 Smith Street, whether in fact Miles made any statements, exculpatory or otherwise." Dkt. #18, p.7.
The defendant also seeks any evidence that may affect his ability to move to suppress evidence, including any statements made by potentially unreliable witnesses in support of the search warrant application for 44 Smith Street or the stop of the Lincoln Navigator automobile in which defendant was arrested. Dkt. #18, p.7. For example, the defendant claims that Michael Cochrain, the individual for whom the pills seized during the search of 44 Smith Street were prescribed, was previously arrested at that address after he allegedly threatened another tenant with a chain saw. Dkt. #18, p.12. The defendant also notes that Debra Davis, was charged with, inter alia, obstructing governmental administration after she lied to police officers about the whereabouts of the subject of an arrest warrant, just three days before she acted as an informant for the Southern Tier Task Force in this matter. Dkt. #20, p.2. The defendant argues that these circumstances fall within the scope of Brady and raise serious concerns about the veracity and reliability of Debra Davis and whether police officers should have relied upon her information in stopping the Lincoln Navigator automobile in which defendant was a passenger. Dkt. #20, p.2.
The government responds that it is "unable to verify defendant Miles' claimed exculpatory statement at [the] time of search warrant execution." Dkt. #22, p.3, n.2. However, the government does state that "[a]ll written and recorded statements of defendants have been provided or will be provided, as well as the substance of any oral statements made by the defendant before and after arrest in response to interrogation by any person known to the defendant to be a Government agent." Dkt. #22, ¶ 5. The government also responds that it is not in possession of any exculpatory or impeachment material within the definition of Brady but acknowledges its ongoing obligation. Dkt. #22, ¶ 15.
The government agrees to provide information regarding criminal histories and favorable treatment or inducements offered to its witnesses no later than one week prior to the commencement of trial, at which time it will also produce material in accordance with Jencks. Dkt. #22, ¶¶ 8, 9 & 16-17. As a result of these representations, the defendant's request for such materials is DENIED, but the government is hereby directed to comply with the Second Circuit Court of Appeals' holding in United States v. Coppa, 267 F.3d 132 (2d Cir. 2001), by making timely disclosure of those materials to the defendant.
"[A]s a general rule, Brady and its progeny do not require immediate disclosure of all exculpatory and impeachment material upon request by a defendant." Id. at 146. The prosecution is obligated to disclose and turn over Brady material to the defense "in time for its effective use." Id. at 144. With respect to impeachment material that does not rise to the level of being Brady material, such as Jencks statements, the prosecution is not required to disclose and turn over such statements until after the witness has completed his direct testimony. See 18 U.S.C. § 3500; Rule 26.2 Fed.R.Crim.P.; In Re United States, 834 F.2d 283 (2d Cir. 1987). However, if the government has adopted a policy of turning such materials over to the defendant prior to trial, the government shall comply with that policy; or in the alternative, produce such materials in accordance with the scheduling order issued by the trial judge.
Fed. R. Crim. P. 16 Disclosures
The defendant seeks an order precluding the government from admitting into evidence at trial, all items which have not been produced as required, pursuant to Fed. R. Crim. P. 16(a)(1)(E) and (F). Dkt. #18, pp.7-9. In support of this request, the defendant argues that he requested disclosure pursuant to Rule 16 on February 23, 2005 and the Court set a deadline of March 11, 2005 for production of voluntary discovery, but very little evidence has been disclosed. Dkt. #18, pp.3-5.
Without conceding that the information specifically requested is within the purview of Rule 16, the government responds that it has provided "all material presently within its possession that is within the purview of Rule 16 and in compliance with Rule 12(b)(4)(B) and believes that discovery is thereby complete." Dkt. #22, ¶ 5. The government states that the "results and reports of physical and mental examinations and of scientific tests and experiments made in connection with the case have been made available to the defendants" and promises that "[i]f any further reports are forthcoming, they will be provided upon receipt by the government." Dkt. #22, ¶ 6. The government also states that it will comply with defendant's "request for expert testimony pursuant to Rule 16(a)(1)(G) of witnesses who will testify under Rules 702, 703 and 705 F.R.E." Dkt. #22, ¶ 6. The government states that it has made available all tangible objects obtained from the defendants and advises the defendant, in accordance with Rule 12(b)(4)(B), that such evidence will be used by the government against the defendant at trial. Dkt. #22, ¶ 7. Finally, the government agrees to provide defendant with his arrest record. Dkt. #22, ¶ 8.
As a result of these representations by counsel for the government, the defendant's request for 16(a)(1) materials is ...