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United States v. Bergman

June 6, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
KELLY L. BERGMAN, DEFENDANT.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

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.

PRELIMINARY STATEMENT

The defendant, Kelly L. Bergman ("the defendant"), is charged in a multicount indictment along with the co-defendant, Scott E. Moore, with having violated Title 21 of the United States Code, Sections 841(a)(1), 841(b)(1)(D), 841(b)(1)(C), 844(a) and Title 18 of the United States Code, Section 2 (Counts 2, 3, 5 and 6) and Title 18 of the United States Code, Section 924(c)(1) and (2) (Count 4). (Docket No. 1).

The defendant has filed an omnibus discovery motion wherein she seeks the following:

1. Discovery and Inspection under Rules 12 and 16 of the Federal Rules of Criminal Procedure, and pursuant to Rules 12(d), 16(a)(1)(E) and (F), a list of all physical evidence which the United States intends to seek to introduce into evidence against defendant herein, and/or any and all scientific analyses or reports related to any physical evidence herein, whether seized pursuant to warrant or not, and a hearing regarding the seizure of any such physical evidence;

2 A bill of particulars pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure;

3. Delivery to the defendant, pre-trial, all materials which may prove favorable to her upon the trial of this case under the authority of Brady v. Maryland, 373 U.S. 83 (1963);

4. Disclosure of witness statements pursuant to Rule 26.2 of the Federal Rules of Criminal Procedure;

5. Disclosure of Evidence pursuant to F.R.Cr.P. (sic) 404(b), 608 and 609;

6. Preservation of rough notes from government agents and officers who participated in the investigation of the defendant and request for in camera review;

7. Disclosure of informant information pursuant to Roviaro v. United States, 353 U.S. 53 (1957).

8. A Motion in limine against the prosecution limiting their use at trial material, information, documents, or statements that were subject to the prosecution's obligation to provide discovery to the defense heretofore, for refusing to provide mandatory discovery materials to defendant's counsel which are necessary for a proper defense and to dismiss the Indictment as against the defendant on the grounds that the prosecution did not provide the necessary and requested discovery materials;

9. A review of the evidence used to indict the defendant and presented before the grand jury and the minutes therefrom;

10. A severance of the plaintiff's case from that of the co-defendant, Scott E. Moore, for the purpose of trial; and

11. An extension of time for the defendant to make further motions for a reasonable time after the completion of the subjects covered by the present motion under circumstances where it would be impractical to include the subsequent motion in the present motion.

(Docket #s 7 and 8).

The government has filed a "Response" to these requests. (Docket #9).

DISCUSSION

1. Defendant's Request For Rule 16 Fed. R. Crim. P. Materials:

The defendant has requested production of various documents and tangible objects as well as various scientific reports and laboratory analyses and disclosure of the government's proposed experts in this regard. The defendant has also requested production of any and all statements which the government will attribute to her in the prosecution of this case along with her criminal record and history of prior bad acts.

In response to this request, counsel for the government has stated that he has turned over, or will turn over, or make available for inspection by the defendant, all materials and information to which the defendant is entitled in accordance with the requirements of Rule 16(a)(1) of the Federal Rules of Criminal Procedure. Counsel for the government has also stated that he will "comply with the defendant's request for expert testimony pursuant to Rule 16(a)(E) of witnesses who will testify under Rules 702, 703 and 705 F.R.E." As a result of ...


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