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United States v. Durham

December 3, 2008

UNITED STATES OF AMERICA,
v.
JOSEPH DURHAM, DEFENDANT.



MEMORANDUM-DECISION AND ORDER

Before the court are various Motions in limine, filed by the Defendant Joseph Durham and the Government. This order addresses the Government's Motion (Dkt. No. 47) and the Defendant's second Motion (Dkt. No. 46) in full. This order addresses certain claims brought by the Defendant's first Motion (Dkt. No. 39). The remaining claims will be addressed by the Court on the record at a later date, either at or before trial, as explained below.

I. Evidence of Other Crimes or Misconduct Attributed to the Defendant

In the Defendant's first Motion in limine (Dkt. No. 39), he seeks to suppress the use at trial of any evidence of prior crimes or bad acts attributed to the Defendant, until the Court holds a hearing outside the presence of the jury to determine: the admissibility of such evidence for impeachment purposes under Fed. R. Evid. 609(b); whether the extraneous offense or bad act fits one of the exceptions to the general rule excluding character evidence pursuant to Fed. R. Evid. 404(b); and whether the probative value of any such evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading, unnecessary or cumulative evidence, pursuant to Fed. R. Evid. 403. These issues are also raised in the Defendant's second Motion in limine in regards to alleged statements by the Defendant regarding other guns, and will be discussed below in Part III of this Order. To the extent the Government seeks to introduce any other evidence of prior crimes or bad acts, the Court will address the admissibility of such evidence as the issues arise.

II. Brady Compliance

In Defendant's first Motion in limine (Dkt. No. 39), he also moves the Court for an Order directing the Government to provide Brady material that Defendant's attorney requested of the Government in a letter dated September 19, 2008. The letter request (Dkt. No. 39, Attach. 1) stated that:

Many arrests and debriefings of Jungle Junkie gang members and other cooperating gang members and witnesses have occurred over the last few years. I have reason to believe that as part of those debriefings information and reports about community guns, guns hidden in alleyways and other placement of guns in hidden locations in the area involved in this case has been collected and in some cases acted on by the government. Such information falls under the disclosure requirements of Brady v. Maryland.

After receiving that request, the Government provided the Defendant with a redacted Report of Investigation (ROI) prepared by ATF Special Agent Angelo Vara. Dkt. No. 36, Attach. 1. The ROI, dated April 6, 2006, concerned a gun allegedly located (but not discovered) in an area approximately three blocks from the location where the gun at issue in the Defendant's case was found. In its letter response accompanying the ROI, the Government contended that it had fully complied with its Brady requirements. Dkt. No. 36.

A. Discussion

Due process requires the prosecution to produce any requested evidence that is materially favorable to the defendant, as to either guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). For Brady purposes, "evidence is material 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Strickler v. Greene, 527 U.S. 263, 280 (1999) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).

Here, the Government has complied with its constitutional obligations under Brady.

The incident in the ROI dates back to March 2006, and the alleged location of the gun in the ROI was in the same neighborhood, but not the same alley, as the gun at issue in Defendant's case. Moreover, the gun in the Defendant's case was found by the police in July 2007, over a year after the incident in the ROI. In summary, the connection between the incident in the ROI and the gun at issue in Defendant's case is far too tenuous to place upon the Government the obligation to provide any further details regarding the ROI, or to provide an unredacted copy of the ROI. Furthermore, in the Government's response (Dkt. No. 36) to the Defendant's letter request (Dkt. No. 39, Attach. 1), the Government stated:

We have made inquiries of the two prosecutors assigned to prosecute the Jungle Junkies RICO case. We have made additional inquiries of a number of officers and agents involved in the investigation of that case. We are not in possession of any prior information about this defendant, this .32 caliber gun, or other "community" guns at that location, at the time of our incident or any other time.

Based on the parties' submissions, the Court fails to see what evidence the Government has withheld that would be material to the guilt or punishment of the Defendant. Accordingly, the Defendant's Motion in limine for an Order requiring ...


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