The opinion of the court was delivered by: Honorable Hugh B. Scott United States Magistrate Judge
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. 3).
Before this Court are defendants' omnibus discovery motions (Docket No. 225 (Ard and other defendants' joint motion*fn1 ); Docket Nos. 217 (Cruz), 220 (Beasley), 223 (Dolly), 224 (Hawkins), 227 (Bobby Spencer), 230 (joinder motion of defendant Ainsworth), 232 (joinder motion of Beasley), and 233 (joinder motion of defendant Barton)), as well as motions filed under previous iterations of the Indictment (Docket Nos. 122 (Ard), 117 (Torano Spencer), 107 (Cruz), 106 (Ainsworth), 123 (White), 138 (Walker), 189 (Beasley)), following defendants' motion to bifurcate pretrial motions and to extend time to file further motions (Docket No. 122), which was granted on May 13, 2011 (Docket No. 215). That Order set a further schedule for filing discovery motions, including motions regarding the manner of the Government's disclosure of electronically stored information and surveillance information raised in the motion to bifurcate. Defendants filed their moving papers (Docket No. 226) and replies (Docket Nos. 259, 260-61, 263 (motions joining in Ard movants' reply)), and the Government responded (Docket Nos. 253, 269). The Government also moved for reciprocal discovery (Docket No. 253, Gov't Response at 51). The motions were argued on August 12, 2011, and deemed submitted as of that date.
This Court enters two Orders on these motions. One Order (Docket No. 291) considers the means by which this discovery, particularly production of the electronically stored information, is to be conducted. The present Order considers the substantive issues of whether, and to what degree, the parties are to produce under the ordinary rules, statutes, and caselaw for criminal discovery pertinent to this case. In particular, these motions seek the following relief: discovery; production under Brady; disclosure under Federal Rules of Evidence 404(b), 608, 609, 803(24), and 807; production of impeachment information; preservation of rough notes; service of Bills of Particulars; furnishing a list of witnesses; expert witness disclosure; production of Jencks Act materials and the timing of that production relative to the trial date; disclosure of Grand Jury minutes; identifying informants; search of the Government agents' personnel files; production of statements of co-conspirators; voir dire of Government's experts.
Some of these motions (voir dire of Government experts, exclusion of non-testifying co-conspirator statements, and motions for severance) are best dealt with by Chief Judge Skretny, the judge with plenary jurisdiction over this case and thus are deferred for the District Judge's consideration. This is despite defense arguments that they had not focused on these non- discovery forms of relief in this round of motion practice (see Docket No. 259, Defs. Reply at 22-23). Also motions to suppress various forms of evidence (electronic surveillance material, defendants' statements) (see Docket No. 189) will be considered in a separate Report & Recommendation. For convenience and given the joinder of defendants (including those who have subsequently plead guilty), individual defendants will not be noted for each relief sought.
Defendants are charged with conspiracy to distribute cocaine and cocaine mixture, and with the use of interstate communication facilities to commit a drug felony (Docket No. 202, 3rd Superseding Indict., Counts 1, 2-23). Defendant Will Johnson is also charged with multiple counts of money laundering and engaging in unlawful monetary transactions (id., Counts 26-30).
Defendants first seek various items of pretrial discovery. The manner of the production of some of this material is addressed in a separate Order. 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.
A. Defendants' Own Statements
Pursuant to Rule 16(a)(1)(A) and (B), defendants seek 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.
Rule 16(a)(1)(A) and (B) provide 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).
In this case, the Government has represented that it believes that it has already disclosed all statements made by the defendants, but will not produce statements of uncharged co-conspirators since that request goes beyond the scope of Rule 16(a)(1) (Docket No. 253, Gov't Response at 4, 5). To the extent that the Government has not yet done so, pursuant to Rule 16
(a)(1)(A) and (B), the Government is hereby directed to produce all such statements made by the defendants.
B. Documents and Tangible Objects
Pursuant to Rule 16(a)(1)(E), defendants also seek production of various documents, books, records, photographs, and other tangible objects in the possession, custody or control of the government. Defendants identify several specific categories of items which they seek to be produced.
The Government's response to these specific requests is that the search warrant return, photographs, and reports have been produced in voluntary discovery (Docket No. 253, Gov't Response at 12).
C. Examinations and Test Reports
Pursuant to Rule 16(a)(1)(F), defendants next have requested the production of the results of any physical or mental examinations or scientific tests, including but not limited to any such tests regarding the cocaine or firearms referenced in the Indictment. The Government has responded that these reports were (and continue to be) produced in voluntary discovery (Docket No. 253, Gov't Response at 8; Docket No. 269, Gov't Atty. Aff. ¶ 2, Ex. A).
The Court assumes that the Government's production has satisfied the defendants' requests in this regard.
Pursuant to Rule 12(b)(4), defendants request that the Government give notice of its intention to use at trial any evidence which is discoverable under Rule 16. Such notice, under the rules, avoids the necessity of a defendant having to move to suppress evidence which the government does not intend to use. The Government claims that it has provided ...