The opinion of the court was delivered by: Hon. Hugh B. Scott
This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(C) (Docket No. 4).
The instant matters before the Court are (a) the defendant's omnibus motion (Docket No. 12*fn1 ) seeking various discovery relief (namely discovery; Brady; production of Federal Rules of Evidence 404(b), 608, 609 materials; Jencks Act/disclosure of witness statements; preservation of rough notes; suppression of evidence and statement); and (b) the Government's reciprocal discovery motion (Docket No. 14, Gov't Response at 12-13). The suppression motions will be addressed in a separate Report and Recommendation (Docket No. 15), familiarity with which is presumed. Responses to this motion were due January 8, 2010, and the motion was argued on February 4, 2010 (text minute entry Oct. 30, 2009).
As stated in the Report & Recommendation (Docket No. 15), defendant was charged with three counts of possession of cocaine base, on July 9 and 17, 2009, with the last count alleging possession with the intent to distribute (Docket No. 3, Indict.).
Defendant seeks various items of pretrial discovery (Docket No. 12, Def. Motion, Part III). 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 has fulfilled its obligations under Rule 16 (Docket No. 14, Gov't Response at 6).
Pursuant to Rule 16(a)(1)(A), defendant seeks any written or oral statements made by the defendants 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. 12, Def. Motion, Part III(c), (e)).
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.*fn2 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).
To the extent that the Government has not yet done so, pursuant to Rule 16 (a)(1)(A) the Government is hereby ordered to produce all ...