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. 20).
The instant matter before the Court is defendant's omnibus motion which seeks the following relief: discovery and inspection; notice of evidence; production of Brady materials; Federal Rules of Evidence 404(b), 608, 609 disclosures; disclosure of witness statements; and preservation of rough notes (Docket No. 28).
The Government has filed responding papers (Docket No. 32) and oral argument was heard on February 4, 2011 (text minute entry, Feb. 4, 2011; see Docket No. 31), with further status conferences on February 18, 2011 (Docket No. 34), March 9, 2011 (text minute entry, Mar. 9, 2011), and April 7, 2011 (Docket No. 35). Separately, defendant moved to suppress statements (Docket No. 37), which had a suppression hearing on May 12, 2011 (Docket No. 40 (minutes); Docket No. 51 (transcript)), with post-hearing briefing completed on October 20, 2011 (Docket No. 56; see Docket No. 57,Gov't Post-Suppression Hearing Memo.; Docket No. 58, Def. Post-Hearing Memo.). Both motions were deemed submitted on October 23, 2011.
Defendant is charged in a three-count Indictment with two counts of violation of 18 U.S.C. § 1204 (international parental abduction), one count for each child allegedly abducted, and one count of making a false statement, in violation of 18 U.S.C. § 1001(a)(2) (Docket No. 19).
Defendant is the biological mother of three children ("N.G.", "Z.B." and "M.B."), two of which are subject of this prosecution (N.G. and Z.B.). The father of N.G. had sole custody of N.G., while the father of Z.B. had joint custody of Z.B. with defendant. Defendant obtained passports for N.G. and Z.B. without the consent of the fathers. On February 15, 2010, defendant and her three children (including N.G. and Z.B.) boarded a flight from Toronto, Canada to Barbados. On February 16, 2010, N.G.'s father reported N.G. missing. On or about February 22, 2010, Z.B.'s father reported Z.B. missing. Defendant remained in Barbados with her children until March 24, 2010, when her visa to Barbados expired. She was arrested and deported to the United States.
During various status conferences held in this case, on March 9, and April 7, 2011, the Government reported that it produced much of what defendant seeks in its voluntary disclosure.
Defendant first seeks 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. Defendant also seeks notice of evidence the Government intends to use for potential motions to suppress (Docket No. 28, Def. Atty. Affirm. ¶¶ 4-7).
The Government responded that it had produced and would continue to produce discovery sought in the voluntary discovery furnished (Docket No. 32, Gov't Response at 2).
Defendant next has requested that the Government disclose all materials potentially favorable to the defendant, including information to be used for the impeachment of the government's witnesses, as required under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. Brady material, as those cases have come to define it, includes all evidence which may be favorable to the defendant and material to the issue of guilt or punishment. Such evidence includes "[a]ny and all records and/or information which might be helpful or useful to the defense in impeaching . . . [and] [a]ny and all ...