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. 2).
The instant matter before the Court is the defendant's omnibus motion (Docket No. 12) which seeks the following relief: discovery; disclosure of informant information; production of Brady material; Federal Rules of Evidence 404(b), 608, and 609 disclosure; disclosure of Jencks Act materials; and preservation of notes.
The Government has filed responding papers (Docket No. 13), seeking reciprocal discovery from defendant (id. at 9), and oral argument was held on November 23, 2010 (Docket No. 15), and the Court then reserved decision.
Defendant is charged with manufacture of marijuana, in violation of 21 U.S.C. §§ 841(a), (b)(1)(D), separate counts for possession of marijuana and cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D), 844(a). He is also charged with using premises in Jamestown, New York, for the purpose of manufacturing and distributing marijuana, in violation of 21 U.S.C. § 856(a)(1). Defendant is also charged with possession of a firearm as a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c)(1). (Docket No. 1, Indict.)
On March 11, 2010, officers from the Southern Tier Regional Drug Task Force executed a search warrant on the upper apartment of 96 Water Street, Jamestown, New York, defendant's residence. There, the officers recovered marijuana plants, plastic bags containing a substance later determined to be cocaine base, plastic baggies containing marijuana, a .22 caliber derringer with five rounds of ammunition, a grinder and digital scale. (Docket No. 13, Gov't Response at 1-2.)
At issue here is defendant's discovery request for notes, tapes, and transcripts for the search warrant application before the City Court Judge, and identification of confidential informants. Other relief has been furnished to defendant.
The defendant first seeks various items of pretrial discovery (Docket No. 12, Def. Atty. Aff. ¶¶ 3-5), in particular seeking production of in camera notes and other supporting documents for the search warrant issued (id. ¶¶ 3, 5). 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 provided the defense with all discoverable materials and made originals available for inspection (Docket No. 13, Gov't Response at 2-3). The Government opposes producing the in camera notes, tapes, or transcripts of the testimony before the issuing magistrate for the search warrant, but that these may be made available for an in camera examination by the Court (id. at 3). During oral argument, the Government contended that the affidavit in support of the warrant application was sufficient for any suppression motion defendant may make and that the in camera materials now sought are unnecessary.
Assuming that the application affidavit provides sufficient information for defendant to determine whether to move to suppress, his motion to ...