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United States v. Harper

March 20, 2006

UNITED STATES OF AMERICA,
v.
MICHAEL HARPER, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court is Defendant Michael Harper's Omnibus Discovery Motion in which he asks the Court to order the Government to provide him with, among other things, (1) readable and searchable CD-ROMS containing recorded telephone conversations, (2) wiretap progress reports, (3) pen registers, (4) a list of the intercepted calls that the Government intends to use at trial, (5) transcripts of telephone calls that the Government intends to use at trial, (6) surveillance logs and photographs, (7) cell phone tower location records, and (8) an adequate notice of the Government's expert witness, Officer Wiegand. In addition to these discovery requests, Defendant also moves to suppress certain evidence that is related to the materials that Defendant seeks to discover.

On March 14, 2006, the Court heard oral argument in support of, and in opposition to, Defendant's motion. At that time, the Court issued oral decisions with respect to certain issues and reserved decision with respect to others. The following constitutes the Court's written determination of the pending motion.

II. DISCUSSION

A. Discovery requests

1. CD-ROMs

Defendant's counsel asserts that he has been unable to access the CD-ROMs, which contain recorded telephone conversations, that the Government provided to him during discovery and that he needs this information to prepare a defense. The Government informed the Court that it will provide new CD-ROMs to Defendant's counsel for his review. At the Court's suggestion, the parties agreed that Defendant's counsel would try to access the new CD-ROMs at the United States Attorney's Office before he took them with him for further review. In addition, the Court agreed with the Government that the ultimate solution may be that Defendant's counsel will have to listen to the relevant CD-ROMs at the United States Attorney's Office if he continues to be unable to access them on his computer. Accordingly, the Court denies this part of Defendant's motion as moot and with leave to renew if the parties are unable to resolve this issue.

2. Wiretap Progress Reports

Defendant's counsel acknowledged at oral argument that the Government has now provided him with these progress reports. Accordingly, the Court denies this part of Defendant's motion as moot.

3. Pen Registers

At oral argument, Defendant's counsel acknowledged that the Government has now provided him with the "Pen Register Orders." However, he still seeks the "Pen Registers" themselves. He contends that he needs this information so that he can determine the accuracy of the information upon which the Government relied as a basis for its wiretap applications. The Government informed the Court that this information is on the same CD-ROMs as the recorded telephone conversations and that, as noted, it is providing Defendant's attorney with a new set of these CD-ROMs. Accordingly, the Court denies this part of Defendant's motion as moot and with leave to replead if the parties are unable to resolve the CD-ROM issue.

4. List of the Intercepted Calls that the Government Intends to use at Trial and the Transcripts of these Intercepted Calls

Defendant asks the Court to order the Government to provide him with a list of the intercepted calls that it intends to use at trial and the transcripts of those calls. In response, the Government informed the Court that, at this time, it is not sure which of the intercepted calls it will use at trial but that, to the extent that it has transcribed the intercepted calls, it will provide Defendant ...


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