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. 7).
The instant matter before the Court are the defendant's motion for a Bill of Particulars (Docket No. 8) and his omnibus motion for discovery and other relief (Docket No. 10) which seeks the following relief: discovery pursuant to Rule 16 and United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991); disclosure of evidence concerning informants, production of Brady material; disclosure of Jencks Act materials; expert witness disclosure; disclosure of Federal Rule of Evidence 403, 404(b), and 609 evidence; disclosure of Rule 807 residual exception statements. Defendant's separate motion to dismiss (on statute of limitations grounds) (Docket No. 9) will be considered in a separate Report & Recommendation.
The Government has filed responding papers (Docket No. 11) and oral argument was heard on June 22, 2009 (Docket No. 12). The Government also moves for reciprocal discovery (Docket No. 11, Gov't Response at 18-19).
Defendant is charged with one count of intentionally possessing marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 4, and conspiring to possess with intent to distribute (between 1999 and April 2005) marijuana, in violation of 21 U.S.C. § 846 (Docket No. 1, Indict.).
I. Discovery and Disclosure Relief
Defendant first 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 contends that it provided these materials through voluntary discovery and will provide additional discovery as it is provided to the Government (Docket No. 11, Gov't Response at 9).
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.
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. The Government also furnished defendant's statement at his arrest in New Hampshire (Docket No. 11, Gov't Response at 10). 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.
B. Documents and Tangible Objects
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. Defendant identified several ...