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. Richard J. Arcara, in accordance with Title 28, United States Code, Section 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #11.
The defendant, Damone Brown (hereinafter, "defendant" or "Brown"), along with seven others was charged in a six count Indictment with having violated Title 21, United States Code, Section 841, Title 21, United States Code, Section 846 and Title 18, United States Code, Section 1956. Dkt. #1. The defendant was charged in two separate counts, Counts 3 and 4, with money laundering. Id.
Presently pending before this Court is the defendant's omnibus motion for discovery (Dkt. #53) and a motion to join in defendant Glance Ross' motion to suppress (Dkt. #101) the evidence obtained pursuant to the search of safe deposit box number 65 at Citizens Bank, 1893 Elmwood Avenue, Buffalo, New York (Dkt. #104). The government has filed its response to defendant's omnibus motion for discovery, as well as a motion for reciprocal discovery. Dkt. #120. This Court's Report, Recommendation and Order with respect to Glance Ross' motion to suppress (Dkt. #101) in which defendant Damone Brown has joined (Dkt. #104) will be addressed and filed separately. What follows is this Court's Decision and Order with respect to the defendant's omnibus motion for discovery and the government's motion for reciprocal discovery.
As a threshold matter, the defendant acknowledges that the government agreed to provide voluntary discovery materials pursuant to this Court's Scheduling Order, however, in an abundance of caution, the defendant has made specific discovery requests pursuant to Rule 16 of the Federal Rules of Criminal Procedure. Dkt. #53, pp.5-6. In nine separately lettered requests, the defendant seeks, any oral, written or recorded statements of the defendant, co-defendants and unindicted co-conspirators; the defendant's prior criminal record; arrest reports, investigator notes, reports, and transcripts; all tangible items the government intends to use in its case-in-chief; any tangible items which belong to or were obtained from the defendant; results of any physical and/or scientific examinations; and the identities, qualifications and summaries of testimony of all expert witnesses. Id.
In its response, the government states,
[a]s an initial matter, it should be noted that the government has provided a voluminous amount of discovery, much of it voluntarily. On June 1, 2009, the government made its initial production to the previous attorney for the defendant [Glance Ross], who was also designated by the Court as a discovery custodian for Indictment No. 09-CR-55. This discovery included the following: (a) search warrant applications, affidavits and returns, (b) FBI reports (i.e., 302 Forms) pertaining to surveillance, controlled narcotics purchases and search warrants, (c) surveillance and seizure photos, (d) audio files of intercepted calls from the eight (8) cellular telephone lines which were the subject of court orders from District Judge William M. Skretny and (e) lab reports. The government will provide the notes and curriculum vitae of the lab examiners as we get closer to trial, pursuant to Federal Rule of Criminal Procedure 16(a)(1)(G) and Title 18, United States Code, section 3500.
Dkt. #120, p.11. In addition, the government further states that on June 5, 2009, July 17, 2009, August 13, 2009, December 9, 2009, January 15, 2010, February 2, 2010 and April 28, 2010, it supplemented the discovery previously provided to defendants. Id. at p.12. The documents and information provided by the government on the above-listed dates principally related to electronically intercepted calls, including summaries of the "line-sheets", "ten-day" reports, the actual "line-sheets", applications for the interception orders for Anthony Frazier's phone and Marcus Chambers' phone, and redacted applications for the interception orders for Glance Ross' phones. In addition, the government states that it provided additional 302 Forms from the FBI relating to the investigation.
Notably, with the exception of its mention of lab reports and the curriculum vitae of the lab examiners, the government does not specifically address many of the nine separately lettered discovery requests set forth in the instant motion.
By these requests, the defendant seeks the disclosure of any oral, written or recorded statements made by him to law enforcement. In addition, the defendant seeks the disclosure of any statements made by co-defendants and unindicted co-conspirators. The government has not specifically responded to these requests. Federal Rule of Criminal Procedure 16(a)(1)(A) and (B) mandates that the government disclose to the defendant the substance of any relevant oral statement made by the defendant before or after arrest, as well as any relevant written or recorded statement made by the defendant. To the extent not already provided to the defendant by the government, the defendant's request for the disclosure of oral, written and recorded statements made by the defendant is granted.
For purposes of addressing that portion of the defendant's request seeking the disclosure of statements made by any co-defendant or unindicted co-conspirators, the Court will treat the request as one for the production of witness statements. "[A]s a general rule, Brady and its progeny do not require immediate disclosure of all exculpatory and impeachment material upon request by a defendant." United States v. Coppa, 267 F.3d 132, 146 (2d Cir. 2001). The prosecution is obligated to disclose and turn over Brady material to the defense "in time for its effective use." Id. at 144. With respect to impeachment material that does not rise to the level of being Brady material, such as Jencks statements, the prosecution is not required to disclose and turn over such statements until after the witness has completed his/her direct testimony. See Title 18, United States Code, Section 3500; Fed. R. Crim. P. 26.2; In re United States, 834 F.2d 283 (2d Cir. 1987). However, if the government has adopted a policy of turning such materials over to the defendant prior to trial, the government shall comply with that policy and the government is further directed to comply with the Second Circuit Court of Appeals' holding in United States v. Coppa, 267 F.3d 132 (2d Cir. 2001) and United States v. Rodriguez, 496 F.3d 221 (2d Cir. 2007) by making timely disclosure of those materials to the defendant; or in the alternative, produce such materials in accordance with the scheduling order to be issued by the trial judge.
Defendant's Prior Criminal Record
By this request, the defendant seeks a copy of his prior criminal record pursuant to Rule 16(a)(1)(D) of the Federal Rules of Criminal Procedure. Rule 16(a)(1)(D) provides:
[u]pon a defendant's request, the government must furnish the defendant with a copy of the defendant's prior criminal record that is within the government possession, custody, or control if the attorney for the government knows - or through due diligence could know - that the record exists.
The government does not specifically respond to this request. Based upon what is required by Rule 16(a)(1)(D) of the Federal Rules of Criminal Procedure and by reason of defendant's request for a copy of his prior criminal record, the defendant's request is granted.
Pursuant to Federal Rule of Criminal Procedure 16(a)(1)(E), the defendant seeks the disclosure of any "arrest reports, investigator notes, memos from arresting officers, dispatch tapes, rough notes, records, reports, transcripts, videotapes and/or other documents." Dkt. #53, p.5. As described above, the government has previously provided extensive documents pertaining to the investigation of this matter. Based on the representations made by counsel for the government, the defendant's request is denied as moot.
Reports of Examinations and Tests and Expert Witnesses
By this request, the defendant seeks the disclosure of the "results of any physical and/or scientific examinations, tests and/or experiments within the prosecution's possession, custody, and/or control which are either intended by the prosecution to be used as evidence in chief or which is material to the defense preparation and has not been previously provided." Dkt. #53, p.6. As part of its response, the government states, "[t]he government will provide the notes and curriculum vitae of the lab examiners as we get closer to trial, pursuant to Federal Rule of Criminal Procedure 16(a)(1)(1G) and Title 18, United States Code, [S]section 3500."
Dkt. #120, p.11. Based on the representations made by counsel for the government, the defendant's ...