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United States v. Elsberry

May 29, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JOHN R. ELSBERRY, JR., 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, John R. Elsberry, Jr. ("the defendant"), is charged in a multicount indictment with having violated Title 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Docket #1). He has filed an omnibus motion wherein he seeks: (1) "pretrial disclosure of all Brady material;" (2) "revelation of identity of informants;" (3) "pretrial disclosures of evidence proffered under Rule 404(b) and the exclusion of any such evidence found to be inadmissible;" (4) "discovery pursuant to Rule 16 and notice of intention pursuant to Rule 12(b)(4)(B);" (5) a bill of particulars; (6) preservation of evidence; (7) "government disclosure of Rule 807 - residual exception statements;" (8) severance of Count 1 of the indictment from Counts 2 and 3; and (9) permission to file additional motions.

(Docket #10). The defendant has also filed a "motion to controvert a search warrant" and motions to "suppress physical evidence" and "any statements allegedly made" by the defendant. (Docket #10).

The government has filed its response in opposition to these requests of the defendant. (Docket #11).

The defendant's motions to controvert a search warrant and suppress evidence, as well as the motion for a severance, will be separately addressed by this Court in a separate Report, Recommendation and Order. Each of the other aforesaid requests of the defendant will be addressed herein.

DISCUSSION AND ANALYSIS

1. Defendant's Request for Brady, Giglio and Jencks 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 #11, p. 3). 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 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 "Revelation Of Informants' Identity"

The defendant requests that the government be directed to identify all informants on whom the government has relied or will rely in any way in its investigation and/or prosecution of this case and disclosure of information received from informants. However, the defendant has failed to sufficiently state a basis for requiring the disclosure of this information or "that the testimony of the informant would [be] of even marginal value to the defendant's case." As a result, the holding of the Court of Appeals for the Second ...


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