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United States v. Bradberry

May 11, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CORTEZ L. BRADBERRY, 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, Cortez L. Bradberry ("the defendant"), is charged in a multicount indictment with having violated Title 21 U.S.C. § 846 (Counts 1 and 2), along with a co-defendant, Gary L. Moore,*fn1 and Title 21 U.S.C. § 844(a). (Docket #9). He has filed an omnibus discovery motion wherein he seeks: (1) "an order compelling all potentially favorable evidence," i.e., Brady material; (2) "notification of any evidence that the government contends would be admissible under Rule 404(h) (sic)*fn2 of the Federal Rules of Evidence ("F.R.E."); (3) an "order requiring all government agents and officers who participated in the investigation of the defendant in this case to retain and preserve all rough notes taken as part of their investigation whether or not the contents of the notes are incorporated in official records;" and (4) joinder "in any motions filed by the co-defendant that would be applicable to him." (Docket #14). The defendant has also filed a motion seeking a severance from the trial of the co-defendant Moore. (Docket #14).

Since the co-defendant Moore has entered a plea of guilty to a Felony Information (see Docket #34), the defendant's motions seeking a severance and joinder in the co-defendant's motions are moot and therefore, those motions are DENIED. The remaining motions will be treated separately herein.

The government has filed its opposition to the defendant's motions. (Docket #16).

DISCUSSION AND ANALYSIS

1. Defendant's Request for Brady Material

The defendant has made a broad request for any and all materials and/or information, including a culling of government agent personnel files, 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 and has stated that the government does not possess any "'exculpatory' material within the contemplation of Brady." (Docket #16, p. 4 ). 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 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.

2. Defendant's Request For Notice Of Rule 404(b) F.R.E. Evidence

The defendant seeks not only "evidence that would be admissible under Rule 404(b) F.R.E.," but he also seeks "pretrial disclosure of any other evidence the government intends to use to impeach the defendant's credibility if he should choose to testify" and "a ...


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