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United States v. Mikula

March 1, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JOHN J. MIKULA, 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. William M. Skretny, 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, John J. Mikula ("the defendant"), has been charged in a two count Indictment with having violated Title 18 U.S.C. §§ 922(g)(3) and 924(a)(2) (Count I) and Title 21 U.S.C. § 844(a) (Count II). (Docket #1). The defendant has filed an omnibus discovery motion wherein he seeks: "discovery and inspection" pursuant to Rule 16 of the Fed. R.Crim. P.; disclosure of Brady materials; "disclosure of evidence pursuant to Federal Rules of Evidence 404(b), 608 and 609; "disclosure of witnesses statements;" preservation of rough notes;" and permission "to make further and additional motions which may be necessitated by the Court's rulings on the relief sought herein." (Docket #11).

The government has filed a response to these requests and also moves pursuant to Rule 16 of the Fed. R. Crim. P. For reciprocal discovery. (Docket #14).

Each of the aforesaid requests will be separately addressed herein.

DISCUSSION AND ANALYSIS

1. Defendant's Request For Rule 16 Discovery And Inspection:

The defendant seeks "discovery of any items or information to which the defendant is entitled but not previously provided" pursuant to Rule 16(a)(1)(A)(B) and (D). (Docket #11, p. 8, ¶ 20). In its response, the government represents that by way of voluntary discovery provided by the government, the defendant has received the Rule 16 materials and information to which he is entitled or has been given the opportunity to review those materials held in the government's possession. (Docket #14, pp. 18-20). The government has also disclosed the names of the expert witnesses it intends to call at trial and the subjects of their testimony. (Docket #14, p. 20). The government further states that it "will comply with the defendant's requests for expert testimony pursuant to Rule 16(a)(1)(E)*fn1 of witnesses who will testify under Rules 702, 703 and 705 Federal rules of Evidence in advance of trial or as directed by the District Court." (Docket #14, p. 20).

Based on the government's representations, the defendant's request is DENIED on the basis that it is moot.

2. Disclosure Of Brady Material

The defendant has made a broad request for any and all materials and/or information that would be "exculpatory" to the defendant which the Court interprets as a broad request for "Brady," "Giglio" and "Jencks" materials as the defendant has used those labels in his motion.

Counsel for the government has acknowledged his responsibility under Brady v. Maryland, 373 U.S. 83 (1963) and subsequent cases. (Docket #14, pp. 21-23). The government has also represented that it will comply with the requirements of 18 U.S.C. § 3500 with respect to production of statements of witnesses called to testify at trial. As a result of these representations, the defendant's request for such materials, i.e., Brady, Giglio and Jencks 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 ...


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