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. 4). The instant matter before the Court is the defendant's omnibus motion (Docket No. 9) which seeks the following relief: discovery, disclosure of informant information, production of Brady material, disclosure of Federal Rules of Evidence 404(b), 608, and 609 materials, disclosure of witnesses' statements; preservation of rough notes, and other further relief.
The Government has filed responding papers (Docket No. 10) and oral argument was scheduled for January 18, 2008, and the Court deemed the matter submitted as of January 28, 2008, unless the Court was notified that other submissions would be made (Docket No. 15). Defendant filed a demand for supplemental discovery (Docket No. 16), seeking any audio or video recording of defendant's statements and a transcript of those statements (id. ¶ 3). The Government responded to this latest request (Docket No. 17). The motion was deemed submitted on January 28, 2008 (see Docket No. 15).
Defendant was indicted in a single count Indictment for possessing with intent to distribute and distribution of 5 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) (Docket No. 1, Indictment).
Defendant seeks various items of pretrial discovery. 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 generally that discovery has been ongoing, voluntary, and continuing. As for potential Brady material, the Government acknowledges its duty to produce and indicated that it would provide impeachment Brady material (Docket No. 7, Gov't Response at 5, 7-8).
Pursuant to Rule 16(a)(1)(A) the defendant seeks any written or oral statements made by the defendant which are within the possession custody or control of the Government, or which through the exercise of due diligence, may become known to the Government (Docket No. 6, Def. Atty. Aff. ¶ 4(a)).
Rule 16(a)(1)(A) provides that, upon request, the Government must disclose any written or recorded statements made by a defendant, before or after arrest, in response to interrogation by any person known to the defendant to be a Government agent; and recorded testimony of the defendant before the grand jury which relates to the offense charged.*fn1 Failure of the Government to disclose a defendant's statements to a Government agent may rise to the level of constitutional due process violation. Clewis v. Texas, 386 U.S. 707 (1967).
In this case, the Government has represented that it believes that it has already disclosed all statements made by the defendant (Docket No. 7, Gov't Response at 4). To the extent that the Government has not yet done so, pursuant to Rule 16 (a)(1)(A) the Government is hereby directed to produce all such statements made by the defendant.
Pursuant to Rule 16(a)(1)(C), defendant also seeks production of various documents, books, records, photographs, and other tangible objects in the possession, custody or control of the Government. The Government's response is that it has agreed to produce such items for inspection (id.).
Pursuant to Rule 16(a)(1)(D), defendant has requested the production of the results of any physical or mental examinations or scientific tests (Docket No. 6, Def. Atty. Aff. ¶ 3(h)). The Government has agreed to ...