The opinion of the court was delivered by: Hon. Hugh B. Scott
This matter is referred to the undersigned to hear and determine pretrial matters pursuant to 28 U.S.C. 636 (b)(1)(A) and, pursuant to 28 U.S.C. 636(b)(1)(B), to submit proposed findings of fact and recommendations for the disposition of any motion excepted by 28 U.S.C. 636(b)(1)(A) (Docket No. 9).
The instant matter before the Court is the Defendant's omnibus motion which seeks the following relief: to suppress evidence and statements (including seeking a suppression hearing); discovery; production of Brady, Federal Rules of Evidence 404(b), 608, and 609 materials; disclosure of witnesses' statements; and preservation of rough notes (Docket No. 23, Def. Atty. Affirm. at 2). The Government, in its response, requested reciprocal discovery from the defendant (Docket No. 24, Gov't Response at 7-8).
During oral argument, defendant also sought materials about a witness disclosed in the Government's response (Docket No. 24, Gov't Response at 2), as well as any memorialization of that witness's statements. Defendant also sought any audio or video recording of defendant's stop and arrest. One report produced to defendant indicated that a handgun found in defendant's car was swabbed for DNA testing; defendant sought the results of that testing.
During oral argument, the Government stated that it was unaware who the witness was who was identified in the responding papers. The Government was not aware of any audio or video recording of this incident aside from the 911 transmissions and the car-to-car transmissions (and the Government provided copies of those transmissions to defendant). As for the DNA testing, the Government states that no actual testing was conducted, only that the firearm was swabbed for possible testing.
The Court entered a schedule with defense motions due by July 10, 2007, the Government's response was due by July 24, 2007, and oral argument was scheduled for July 25, 2007, at 10 am (Docket No. 21). The Government belatedly filed responding papers (Docket No. 24, filed July 25, 2007, at 9:10 am). Despite this late response, defendant and the Government proceeded to argue the motion July 25, 2007, and the Court reserved decision and stated that it would schedule an evidentiary hearing at a latter date (Docket No. 25).
Defendant was indicted on November 16, 2006, in a three-count Indictment for unlawfully possessing a firearm (a semiautomatic pistol) while trafficking in drugs, in violation of 18 U.S.C. § 924(c)(1); unlawfully possessing the same firearm after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2); and possession of marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D) (Docket No. 1). He is alleged to have possessed this contraband on October 28, 2006 (id.).
Defendant seeks to suppress all evidence and defendant's statements, seeking a suppression hearing (Docket No. 23, Def. Atty. Affirm. at 8). The Government concedes that a suppression hearing is required here (see Docket No. 24, Gov't Response at 1-2, 3). Therefore, the Court will conduct a suppression hearing on Wednesday, August 20, 2007, at 2 pm, before the undersigned.
A. Requested in Moving Papers
Defendant next seeks various items of pretrial discovery (Docket No. 23, Def. Atty. Affirm. at 8-10). Although there is no general constitutional right to pretrial discovery in a federal criminal case, a defendant does have a pretrial discovery right with respect to certain matters. For example, under the Fifth Amendment's due process clause, a defendant is entitled to specific exculpatory evidence which is material either to guilt or punishment. In addition, the Government has certain disclosure obligations under Rule 16 of the Federal Rules of Criminal Procedure and the Jencks Act, 18 U.S.C. § 3500. The Government responds that it has fulfilled its discovery obligations, understands its continuing obligation to supplement it disclosure, and indicates that ...