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United States v. Nailor

March 13, 2007

UNITED STATES OF AMERICA,
v.
DERRICK NAILOR, DEFENDANT.



The opinion of the court was delivered by: Hon. Hugh B. Scott

Order

Before the Court is defendant's omnibus motion for production of discovery (Docket No. 12*fn1 , Def. Atty. Affirm. ¶¶ 4-11, 17). Also pending (and considered in a separate Report & Recommendation) is defendant's motion to suppress the gun seized in this case (id. Def. Atty. Affirm. ¶¶ 12-16).

BACKGROUND

Briefly, defendant was indicted on July 13, 2006, in a single count indictment for possession of a firearm by a convicted felon (Docket No. 7). The indictment alleges that defendant, convicted of a felony in Erie County Court in 2000, possessed a .45 caliber semi-automatic pistol and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (id.).

Defendant moves for various forms of discovery, namely disclosure under Federal Rules of Evidence 404(b) and 609, to divulge defendant's prior bad acts the Government intends to introduce at trial; disclosure of Government informants; production of the Government agents' notes; disclosure of Brady material; and other relief (Docket No. 12, Def. Atty. Affirm. ¶¶ 4-11, 17).

The Government cross-moves for reciprocal discovery from defendant (Docket No. 13, Gov't Response at 7-8).

DISCUSSION

I. Rule 404(b), 609 Bad Acts Disclosure

Defendant seeks a ruling that the Government cannot use his prior convictions and other bad acts to impeach him (Docket No. 12, Def. Atty. Affirm. ¶ 4). He also seeks disclosure from the Government of the bad acts it intends to introduce at trial (id. ¶ 6). Alternatively, if a hearing is required, defendant seeks to show how prejudicial such evidence would be (id. ¶ 5). The Government, back in September 2006, stated that it was still attempting to obtain such information (Docket No. 13, Gov't Response at 5), and, once disclosed, the admissibility of such information should be determined by the trial court (id.). The Government states that it intends to use defendant's criminal history, including his probation and parole history (id. at 6).

Rule 404 requires that the defendant be given "reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to use at trial." The Government has represented that it will provide all such material to the defendant at the time of the pretrial conference in this case. This is sufficient in this case. Any hearing on the admissibility of Rule 404(b), Rule 608 or 609 materials is deferred to the trial court.

II. Government Informants

Defendant next seeks disclosure of the identity of informants (Docket No. 12, Def. Atty. Affirm. ¶ 7). The Government states that there was no informant involvement in this matter but if the Government intends to use informant testimony it intends to inform defense counsel "right away" (Docket No. 13, Gov't Response at 3). The Government is not required to furnish the identities of informants unless it is essential to the defense. Roviaro v. United States, 353 U.S. 52, 60-61 (1957); United States v. Saa, 859 F.2d 1067, 1073 (2d Cir.) cert. denied 489 U.S. 1089 (1988). Nor does Rule 16 require the Government to disclose the names of witnesses prior to trial. United States v. Bejasa, 904 F.2d 137, 139 (2d Cir.), cert. denied, 498 U.S. 921 (1990). The Government's response here is sufficient and defendant's request is denied.

III. Agents' Notes

Defendant seeks an Order that the agents preserve their handwritten notes during the course of this investigation, see United States v. Gullo, 672 F. Supp. 99, 105 (W.D.N.Y. 1987) (Elfvin, J.) (Docket No. 12, Def. Atty. Affirm. ΒΆ 8). The Government acknowledged its ...


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