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United States v. Hong

February 29, 2008


The opinion of the court was delivered by: Hon. Hugh B. Scott United States Magistrate Judge

Hon. Hugh B. Scott


This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(C). The instant matters before the Court are three (Nam Hong, Manivone Miou, and David Longboat) of the five defendants' joint omnibus motion (Docket Nos. 46*fn1 ) seeking various relief: discovery, identification of informants, disclosure of Fed. R. Evid. 404(b) material and exclusion of inadmissible evidence, search agents' personnel files, preservation of evidence, disclosure of residual statements pursuant to Fed. R. Evid. 807, audibility hearing, and particularization. The moving defendants also move to preserve their right to bring motions for suppression of physical evidence, controvert search warrants and suppress warrantless search evidence, and suppression of statements (id.). The Government filed a responding affidavit to this motion (Docket No. 47, Gov't Response) and cross moved for production of discovery from defendants (id. ¶ 28). Two remaining defendants, Cheang Kim and Sharon Bomberry, indicated that they would not file motions at this time (see Docket No. 51). The motions were argued and deemed submitted on February 6, 2008, with the parties resting on their respective papers (Docket No. 54).


This is a multiple defendant drug conspiracy case. The Indictment alleges a single count of these defendants conspiring to distribute 500 grams or more of methamphetamine and 3,4-methylenedioxymethamphatime (MDMA), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (Docket No. 1).


I. Discovery Issues

Defendants each seek various items of pretrial discovery. While noting that some voluntary discovery has been furnished by the Government, other items have not been provided (Docket No. 46, Defs. Attys' Jt. Aff. ¶ 4).

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.

A. Brady Material

Defendants each have requested that the Government disclose all materials potentially favorable to each of them, including information to be used for the impeachment of the Government's witnesses, as required under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny.

Brady material, as those cases have come to define it, includes all evidence which may be favorable to the defendant and material to the issue of guilt or punishment. Such evidence includes "[a]ny and all records and/or information which might be helpful or useful to the defense in impeaching . . . [and] [a]ny and all records and information revealing prior misconduct . . . attributed to the [Government's] witness." United States v. Kiszewski, 877 F.2d 210 (2d Cir. 1989).

Defendants' motion identifies numerous specific categories of documents encompassing both exculpatory and impeachment Brady materials which they seek to obtain. The Government's written response is that it states that it presently does not have any Brady material but the Government acknowledges its obligations under Brady to produce, but does not acknowledge a constitutional right to discovery. The Government agrees to produce Brady materials. (Docket No. 47, Gov't Response ¶ 14.) The Government included "impeachment" Brady material as well as exculpatory Brady material in its response (id. ¶ 16).

This Court believes that fundamental fairness and the constitutional due process requirements which underlie Brady mandate that the Court have some discretion with respect to the timing of the disclosure of such information, even if it may be considered combined Brady/Jencks material. Indeed, even with respect to purely Jencks Act materials, the Second Circuit has stated that "pre-trial disclosure will redound to the benefit of all parties, counsel and the court, . . . sound trial management would seem to dictate that Jencks Act material should be submitted prior to trial . . . so that those abhorrent lengthy pauses at trial to examine documents can be avoided." United States v. Percevault, 490 F.2d 126 (2d Cir. 1974); United States v. Green, 144 F.R.D. 631 (W.D.N.Y. 1992) (Heckman, Mag. J.).

The instant case does not appear to be unusually complex. Balancing all of the above, the Court concludes that disclosure of such impeachment material, if any exists, in accordance with the common practice in this district (prior to trial so long as it is disclosed in sufficient time for defendants to have a ...

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