The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
This case was referred to the undersigned by the Hon. William M. Skretny, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #60.
Before the Court is defendant Major Anthony Newton's omnibus motion for discovery. Dkt. #126. In addition to the relief sought in their own separately filed motions, each of which will be the subject of a separate Decision and Order, defendants Quentin Leeper, Ronquike Maisonet and Dion D. Knight join in the aforementioned motion filed by defendant Major Anthony Newton. See Dkt. ## 114, 125, and 127. Defendant Major Anthony Newton similarly seeks this Court's permission to join in the motions filed by defendants Quentin Leeper, Ronquike Maisonet and Dion D. Knight. Thereafter, the government filed a consolidated response to all of the pending motions, including the above-described motion for discovery. Dkt. #132. At the conclusion of its consolidated response, the government has made a request for reciprocal discovery pursuant to Rule 16(b) of the Federal Rules of Criminal Procedure. Id. Each of the defendant's requests and the government's response will be separately addressed below using the headings set forth in defendant's motion. The following Decision and Order will principally address defendant Major Anthony Newton's motion for discovery but will apply with equal force to those defendants who have "joined" in the relief sought by defendant Major Anthony Newton. The Court notes that the motion filed by defendant Major Anthony Newton's attorney also included a motion to suppress electronic evidence obtained pursuant to an electronic eavesdropping warrant; this Court's Report, Recommendation and Order concerning defendant Major Anthony Newton's motion to suppress (as well as a motion to suppress filed by defendant Quentin Leeper (Dkt. #114)) was filed on August 12, 2009. Dkt. #160. For the following reasons, defendant's motion for discovery is granted in part and denied in part.
Defendants Quentin J. Leeper, Ronquike E. Maisonet, Raymond A. Hodnett, Major Anthony Newton, and Dion D. Knight are charged along with six co-defendants in a multi-count Superceding Indictment with having violated Title 21, United States Code, Sections 841(a)(1), 846 and 853(a) and Title 18, United States Code, Section 2. Dkt. ## 1 (Indictment) and 66 (Superceding Indictment). With respect to outstanding discovery, the government states:
[t]he government contends that it had provided, pursuant to voluntary discovery and requests made by defendants, the wiretap application, affidavit, warrant, sealing order, search warrant and inventories and affidavits thereto, preliminary laboratory reports, two DVDs containing all pertinent conversations, and transcripts thereof, constituting all material presently within its possession that is within the purview of Rule 16 and in compliance with Rule 12(b)(4)(B) and believes that discovery is thereby complete.
Dkt. #132, ¶ 4 (internal footnote omitted).
"Motion for Discovery and Inspection"
By this "motion," defendant seeks the production of seventeen (17) categories of documents pursuant to Rule 16 of the Federal Rules of Criminal Procedure. Dkt. #126, pp.4-8. As a threshold matter, the Court notes that the defendant, through his counsel, received a disclosure memorandum and enclosed materials dated April 4, 2008, as well as a May 9, 2008 letter detailing the pre-trial disclosures made. Notwithstanding the foregoing, defendant Newton seeks the production of the following seventeen (17) categories of documents: (a) written or recorded statements made by the defendant; (b) the substance of any oral statements made by the defendant; (c) any Grand Jury testimony of defendant Newton; (d) defendant Newton's criminal history arrest reports, notes, and investigative reports; (e) the inspection/copying/photographing of any books, papers, documents, photographs, tangible objects, building or places in the possession, custody or control of the government; (f) reports or results of physical or mental examinations, scientific tests of experiments; (g) co-conspirator statements; (h) police and conviction records of all government witnesses; (i) evidence of "any dealing with or promises or inducements to prospective Government witnesses"; (j) notice of government's intention to use any evidence which the defendant may be entitled to suppress; (k) Brady material; (l) FRE 404(b) material relating to the defendant; (m) notice of the government's intent to use FRE 404(b) evidence relating to the defendant; (n) recordings obtained from electronic surveillance attributable to any unindicted co-conspirator; (o) FRE 404(b) material relating to any government witness; (p) evidence of any threats or coercion, direct or indirect, express or implied, relating to any government witness; and (q) expert witness disclosures. Each of the seventeen (17) categories of documents requested by the defendant will be separately addressed below.
(a) Written and Recorded Statements of Defendant
(b) Oral Statements Made by Defendant
(c) Grand Jury Testimony of Defendant
By these requests, defendant Newton seeks the production of any written, recorded, oral or observed statement made by him, including any statements made before or after his arrest and any Grand Jury testimony. In its response, the government states, "[a]ll written and recorded statements of defendant have been provided or will be provided, as well as the substance of any oral statements made by each defendant before and after arrest in response to interrogation by any person known to the defendant to be a government agent." Dkt. #132, ¶ 4. Based upon the government's response that it has previously produced or will produce statements of the defendant, that portion of defendant's request relating to such statements is DENIED as moot.
(d) Defendant's Criminal History, Arrest Reports, Notes and Dispatch Tapes
The defendant seeks copies of his prior criminal history. Dkt. #126, p.5. In its response the government agrees to disclose the conviction records of all witnesses it intends to call at trial, as well as the arrest records of each of the defendants. Dkt. #132, ¶ 7. In addition, the defendant requests the production of "all arrest reports, notes and dispatch or any other tapes or 911 tapes that relate to the circumstances surrounding his arrest or any questioning." Dkt. #126, p.5. Although not specifically limited to the circumstances surrounding the arrest in connection with the pending Indictment, the Court will treat this request as limited to only those items relating to the defendant's arrest in this matter. With respect to investigative reports, the government indicates that such documents will be produced only insofar as disclosure is required pursuant to the Jencks Act. Dkt. #132, ¶ 8. Based upon the government's representations that the conviction records of all defendants will be provided and that such further documents will provided consistent with the Jencks Act, defendant's request is DENIED as moot
(e) Books, Papers, Documents, Photographs, Tangible Objects, Building, Places
The defendant seeks an opportunity to inspect, copy or photograph books, papers, documents, photographs, tangible objects, building or places in the possession, custody or control of the government. In its response the government states that, [it] has made available of [sic] all tangible objects obtained pursuant to search warrants or otherwise and will make available photographs material to the preparation of a defense or intended to be used as evidence-in-chief at trial or obtained from or belonging to the defendant. The defendants are apprised that they can examine such material in the custody of the DEA and/or the Southern Tier Regional Drug Task Force (STRDTF) and pursuant to Rule 12(b)(4)(B), such evidence shall be used by the government against them at trial.
Dkt. #132, ¶ 6. In addition, the government has stated that it will make available photographs material to the preparation of a defense or intended to be used at trial. Id. Accordingly, based on the government's representations, this request is DENIED as moot.
(f) Physical or Mental Examinations, Scientific Tests or Experiments
The defendant seeks the production of any reports concerning any physical or mental examination or scientific test or experiment relating to this case. Dkt. #126, p.6. In its response the government indicated that the results and reports of physical and mental examinations and of scientific tests and experiments conducted in connection with this matter have been made available to defendants. Dkt. #132, ¶ 4. Accordingly, based on the government's representation that the requested items either have been made available or will be provided to defendant and further that defense counsel may arrange to examine the materials in the custody of the DEA of the STRDTF, defendant's requests are DENIED as moot.
(g) Statements of Co-conspirators
The defendant seeks the production of "all statements of any co-conspirators, whether or not indicted, either recorded or unrecorded, oral or written, signed or unsigned, made to persons other than the Government agents which are relevant to the crimes charged." Dkt. #126, p.6. The government has declined to produce such statements on the grounds that the production of such statements is "outside the purview of Rule 16." See Dkt. #132, ¶ 4 and n.3. While Rule 16 of the Federal Rules of Criminal Procedure provides for liberal discovery of the defendant's own statements, Rule 16 does not authorize the disclosure of statements made by co-conspirators, co-defendants or witnesses. See United States v. Percevault, 490 F.2d 126, 131 (2d Cir. 1974). Indeed, Rule 16(a)(2) states:
Information Not Subject to Disclosure. Except as Rule 16(a)(1) provides otherwise, this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case. Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500.
Fed. R. Crim. P. 16(a)(2).
The government further stated in its response that it will disclose written statements of witnesses and investigative agency or police department memoranda of interviews with witnesses consistent with the requirements set forth in Title 18, United States Code, Section 3500 (Jencks Act). The Court notes that the government has represented that Jencks Act material will be produced no later than one week prior to the commencement of trial. Finally, the government has declined to provide the defendant with statements and the identities of persons interviewed and not intended to be called to testify by the government. Dkt. #132, ¶ 8. Accordingly, ...