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. 13).
The instant matter before the Court is the defendant's omnibus motion (Docket No. 9) which seeks the following relief: discovery pursuant to Federal Rules of Criminal Procedure 12 and 16; Bill of Particulars; Federal Rule of Civil Procedure 404(b) discovery; production of Brady material; preservation of agents' rough notes; Federal Rule of Evidence 807 notice and Rule 806 disclosure. Also before the Court is the Government's reciprocal request for discovery (Docket No. 11, Gov't Response at 14-15).
The Government has filed responding papers (Docket No. 11) and oral argument was heard on February 23, 2009, at which time a suppression hearing was set for March 18, 2009, on defendant's motion to suppress (text minute entry, Feb. 23, 2009). Following that hearing, briefing of post-hearing submissions was extended to June 27, 2009, and the motion was deemed submitted as of June 27, 2009. The Court will issue a separate Report & Recommendation on defendant's motion to suppress a witness' identification.
Defendant is charged with one count of unlawful transportation of firearms, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), for possession of three firearms between November 1 and November 24, 2004, after having been convicted of a felony in 1991 (Docket No. 1, Indict.; see Docket No. 9, Def. Atty. Aff. ¶ 3).
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.
Pursuant to Rule 12 of the Federal Rules of Criminal Procedure, defendant seeks notice from the Government of intention to use certain evidence at trial (Docket No. 9, Def. Atty. Aff. ¶ 5). Under Rule 16, defendant also seeks his recorded statements and the statements of co-conspirators; his prior criminal record; tangible objects or documents (such as arrest reports, investigators' notes); items the Government intends to use as evidence at trial; items in the Government's possession, custody and/or control obtained from defendant; items that are in the Government's custody that are material to the preparation of the defense; and the results of tests (id. ¶ 7). He also seeks photographs of defendant's truck and auto shop shown to witness Jorge Ortiz-Rivera (id. ¶ 8). He also seeks written summary of expert testimony and production of other summaries required to be produced by statute (id. ¶¶ 9, 10).
The Government generally responds that it has fulfilled its discovery obligations through voluntary disclosure (Docket No. 11, Gov't Response at 1).
A. Defendant's Statements and Those of Co-Conspirators
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. 9, Def. Atty. Aff. ¶ 7.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 ...