The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is defendant's omnibus discovery motion (Docket No. 28)*fn1 and the Government's cross-motion for discovery (Docket No. 31). Defendant also moved to dismiss the criminal Complaint and to suppress defendant's statements (id.). During oral argument, on November 15, 2007, defendant withdrew his suppression motion, without prejudice to renew later.
This Court will address here defendant's discovery and disclosure motions, hence this decision is by Order.
The underlying factual issue in this case is defendant's nationality and whether he made false statements about it. Defendant, an alien convict, in effect would not be deported if he is a Cuban national while he would be deported if he is a Dominican.
On May 26, 2006, defendant was charged in a criminal Complaint with conniving, conspiring, or taking other action to hamper his deportation (in violation of 8 U.S.C. § 1253(a)(1)(C)) and making a materially false statement, in violation of 18 U.S.C. § 1001(a)(2) (Docket No. 1). On September 6, 2006, defendant was indicted in a single count Indictment for making a false statement, in violation of 18 U.S.C. § 1001(a)(2), namely about his nationality (Docket No. 8). The Indictment charges that defendant falsely stated to an agent of the Bureau of Immigration and Customs Enforcement ("BICE") that he was a citizen of Cuba when, in fact, he was a citizen of the Dominican Republic (id.; see Docket No. 28, Def. Atty. Aff.. ¶ 2). As the parties appeared to agree upon a plea disposition, defendant waived Indictment and was charged under a superseding Information (Docket Nos. 10, 11; see Docket No. 12 (plea agreement)). Defendant later moved to withdraw this plea (Docket No. 19), which was granted on August 10, 2007 (minute entry, Aug. 10, 2007; see Docket No. 23). The case was referred to the undersigned (Docket No. 22; see Docket No. 15) and the Court entered a scheduling Order (Docket No. 26).
Defendant seeks production from the Government as to his claimed nationality, evidence of a possible confusion between him and another person with a name similar (Jose Elias Mercedes Delmonte) to his. In particular, defendant seeks discovery under Federal Rules of Criminal Procedure 12 and 16, pretrial disclosure under Federal Rules of Evidence 404(b), 608, and 609, production of Brady materials. He moves to search personnel files of Government agent witnesses and for the Government to preserve evidence. (Docket No. 28.)
At oral argument, defendant outlined categories of materials still sought after review of the Government's file and its response to this motion. He seeks information surrounding his G-4 visa; the predicate felony for his 1987 state conviction as a predicate felon; identity of the visitor to his prison who claimed to be his mother; defendant's Social Security application file, including supporting documents (such as his immigration and visa documentation); materials from defendant's immigration hearing; logs and personnel records of Government employees; entry documents for defendant's entry into the United States in 1981; documents for defendant's re-entry between 1981 and 1984; and visitor log for a "jail in the United States" pertinent to defendant (see also Docket No. 28, Def. Atty. Aff. ¶¶ 9 a., c., d., f., h., 10-12, 18-19).
The Government's Reply and Cross-Motion
The Government argues that, where materials were available to the prosecution, they have been produced to defendant, except categories the Government objects to producing. As to other materials not in the prosecution's file, the Government has made endeavors to obtain it (such as from the Social Security Administration, the Departments of State and Homeland Security) or the Government argues that defendant can request or subpoena the materials from third parties (such as the New York State Department of Correctional Services for defendant's visitor logs while he was in state custody).
The Government cross-moves to inspect any documents in the possession of defendant that he intends to produce in his case-in-chief (Docket No. 31, Gov't Reply at 12).
At the conclusion of oral argument, the Court indicated that the status of discovery of certain items not currently in the prosecution's file will be held.