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. 10).
Before this Court are the remaining*fn1 defendants' omnibus discovery motions (Docket Nos. 53 (Flanders), 47 (Kohler), 35 (Lopez), 33 (Morgan)). Kohler (Docket No. 47, Kohler Atty. Aff. ¶¶ 101-02) and Lopez (Docket No. 35, Lopez Atty. Affirm. ¶ 67) also moved to join in co-defendants' motions. The Government responded apparently to the discovery relief sought in Kohler's motion (Docket No. 54*fn2 ) and not the other remaining movants' motions. Oral argument of these motions was adjourned several times based upon representations that plea discussions between the parties were underway (text minute entries Mar. 8, 2011; Apr. 5, 2011; June 23, 2011; July 25, 2011), but only a few of the defendants entered guilty pleas (see note 1, supra). These motions initially were considered submitted on July 25, 2011 (text minute entry, July 25, 2011). Further briefing was required for some of the defense motions (those of Flanders, Lopez, and Morgan) by the Government and the motion was deemed submitted upon the Government's response on October 3, 2011 (Docket No. 80). The Government, however, failed to respond to these motions even when this additional time was granted.
Defendants are charged in a single count Indictment with conspiracy to distribute marijuana, cocaine, and MDMA, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846. Pending Motions Flanders submitted as a motion his discovery demands upon the Government (Docket No. 53). The motion was terminated as such by the Court Clerk.
Morgan moved for production of tape recordings, wiretaps, and co-defendant communications (Docket No. 33, Morgan Atty. Affirm. ¶ 6).
Lopez and Kohler each filed extensive omnibus motions (Docket Nos. 35, 47). Lopez moves for a Bill of Particulars, discovery, production of Brady/Giglio material, production of Jencks Act material and the timing of that production, and identification of informants, as well as joining in co-defendants' motions (Docket No. 35, Lopez Notice of Motion). Kohler moves to exclude statements of non-testifying co-conspirators, for service of a Bill of Particulars, discovery, production of Brady/Giglio material, production of Jencks Act material, disclosure of Federal Rules of Evidence 404(b), 608 and 609 materials, preservation of rough notes, disclosure of Grand Jury minutes, suppression of electronic surveillance evidence, as well as relief best considered by the trial court with plenary jurisdiction (such as how to conduct voir dire of Government experts, audibility hearing, and severance of defendants) (Docket No. 47, Kohler Motion).
The Government responded only to the motion of remaining defendant Kohler (Docket No. 54). With the overlap of relief sought by the remaining moving defendants and absent argument to the contrary, this Court can consider the responses given by the Government to Kohler's motion as being applicable to other defendants moving for similar relief.
Kohler moves to suppress evidence from electronic surveillance and moves to exclude statements of non-testifying co-conspirators (Docket No. 47, Kohler Atty. Aff. ¶¶ 95-100, 8-11), while seeking notice of evidence seized that he may move to suppress (id. ¶¶ 5-7). The Government did not address the suppression motions (cf. Docket No. 54). Had the Government responded to the suppression motions, these would be considered in a separate Report & Recommendation. But, absent such a response, this Court cannot determine whether even to go forward with an evidentiary hearing. Therefore, the Government shall respond to Kohler's suppression motions within thirty (30) days of entry of this Order.
Kohler also moves for voir dire of Government experts, exclusion of non-testifying co-conspirator statements, audibility hearing, and motions for severance (id. ¶¶ 103-08, 8-11, 109- 10, 111-14) that are best dealt with by Judge Arcara, the judge with plenary jurisdiction over this case and thus are deferred for the District Judge's consideration.
The Government notes at the outset that voluntary discovery has been ongoing (Docket No. 54, Gov't Response at 1). 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.*fn3 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. 54, Gov't Response at 2). To the extent that the Government has not yet done so, pursuant to Rule 16 (a)(1)(A) ...