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).
The instant matters before the Court are (a) defendant James Blue's omnibus motion (Docket No. 12) which seeks the following relief: severance, discovery and inspection, filing of a Bill of Particulars, production of impeachment information, production of Brady materials, Jencks Act material, expert disclosure, and identity of informants; (b) defendant Maurice Hough's motion (Docket No. 15), seeking discovery, severance, disclosure of confidential informants, production of Federal Rule of Evidence 404(b), 608 and 609 materials, production of Jencks Act materials, and preservation of rough notes; and (c) the Government's reciprocal discovery motion from Hough (Docket No. 16, Gov't Response to Hough at 8-9). Blue also joins in his co-defendant's motion (Docket No. 12, Blue Motion ¶ 27). The Government responded (Docket No. 17, to Blue's motion; Docket No. 16, to Hough's motion) and the motions were argued*fn1 and submitted on January 19, 2010 (text entry, Jan. 19, 2010). At oral argument, Hough reiterated his request for production of the 911 tapes arising from this case (see Docket No. 15, Hough Motion ¶ 3(a)).
Defendants were indicted for possession of a firearm (to wit a short barreled shot gun), on February 22, 2009, in violation of 26 U.S.C. §§ 5822, 5845(a), (i), 5861(c), and 5871, and 18 U.S.C. § 2 (Docket No. 1, Indict., Count 1). Count 2 alleges that defendants possessed an unregistered short barreled shot gun between February 22 and 24, 2009, in violation of 26 U.S.C. §§ 5841, 5845(a), (d), and 5871, and 18 U.S.C. § 2 (id., Count 2). Count 3 alleges that on February 22, 2009, defendants possessed a short barreled shot gun, in violation of 26 U.S.C. §§ 5822, 5845(a), (i), 5861(f), and 5871, and 18 U.S.C. § 2 (id., Count 3). The last substantive count alleges that Hough, having been convicted of a felony in 2002, unlawfully possessed ammunition (five Winchester shotgun shells), in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (id., Count 4). The last count is a forfeiture count to seize the firearms and ammunition (id., Count 5).
According to the Government (see Docket No. 16, Gov't Response to Hough at 1-3; Docket No. 17, Gov't Response to Blue at 1-3), on February 23, 2009, Jeffrey Kulig reported to the Jamestown Police Department that he lent his car to his friend Maurice Hough but it was not returned, reporting the car stolen. On the next day, Kulig called the police and reported that his car was found and he saw a shotgun in the car. The Jamestown police came to the vehicle's location but could not see a shotgun or other firearm inside of it. Hough approached these officers and asked what they were doing (Docket No. 16, Gov't Response to Hough at 2). The officers replied that the vehicle was reported stolen after it was not returned. When asked if there were any firearms in the car, Hough said no and told the officers that they could search it (id. at 2-3). After receiving the keys and opening the trunk, officers discovered a sawed off shotgun, the subject of this case (id. at 3).
Hough then claimed that the shotgun belonged to Blue (id.); Hough called Blue who then arrived at the scene (id.). Both defendants then were arrested. Subsequent investigation revealed that the shotgun was stolen from Jeffrey Thomas days before this search (id.).
Both defendants seek severance. As noted by the Government in its written response (Docket No. 17, Gov't Response to Blue at 4-5) and by Hough during oral argument, this relief is better addressed by the trial judge with plenary jurisdiction. This motion is deferred for consideration by Chief Judge Skretny.
Defendants next seek 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 only controverted discovery issue is the ...