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United States of America v. Rosan Mack

March 5, 2012

UNITED STATES OF AMERICA,
v.
ROSAN MACK, DEFENDANT.



The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge

DECISION AND ORDER

This case was referred to me by Hon. Richard J. Arcara for supervision of all pretrial proceedings ([17]).*fn1 Before me are defendant's non-dispositive discovery motions ([22], [53]).*fn2 For the following reasons, I order that defendant's motions be denied, and that the government's cross-motion for reciprocal discovery ([23], p.13) be granted.

BACKGROUND

Defendant is charged in a three-count indictment with producing child pornography, in violation of 18 U.S.C. §2251(a) (indictment [16], Count One), and with possessing child pornography, in violation of 18 U.S.C. §2252A(a)(5)(B) (id., Counts Two and Three).

ANALYSIS

A. Defendant's Motions

1. Motion for Expert Disclosure

Defendant seeks expert disclosures pursuant to Fed. R. Crim. P. ("Rule") 16(a)(1)(G). Comerford Affirmation [22], ¶10(i). The government responds that it "has not decided if it will call an expert witness at trial", and if it decides to use such an expert, it will comply with Rule 16 and Fed. R. Evid. 702, 703, and 705. Government's Response [23], p.7. Based on the government's representations, this aspect of defendant's motion is denied as moot. However, the timing of the government's expert disclosure, if any, shall occur no later than the deadline set by the District Judge.

2. Motion for Preservation of Evidence

Defendant requests that I direct the government to preserve all rough notes related to this case. Comerford Affirmation [22], ¶¶43-46. The government responds that it "will endeavor to maintain such materials, should they exist." Government's Response [23], p.7. Given the government's representation, this aspect of defendant's motion is denied as moot.

3. Motion for Disclosure of Informant Information

Defendant moves for disclosure of the identities of all informants utilized by the government in its investigation of this case, as well as information relating to their credibility. Comerford Affirmation [22], ¶¶11-16. According to defendant, "disclosure of th[is] information is essential to a fair determination of the charges filed against the defendant." Id., ¶14. In response, the government argues that "no basis has been asserted by the defendant to warrant compliance with such a request." Government's Response [23], p.7 I agree with the government.

In general, the government may withhold from disclosure the identity of individuals who inform law enforcement officers of violations of the law. See Roviaro v. United States, 353 U.S. 53, 59 (1957); United States v. Jackson, 345 F. 3d 59, 69 (2d Cir. 2003), cert. denied, 541 U.S. 956 (2004). Disclosure of a confidential informant's identity is an "extraordinary remedy". United States v. Muyet, 945 F. Supp. 586, 602 (S.D.N.Y. 1996). Defendant bears the burden of making "'a specific showing that disclosure was both material to the preparation of [the] defense and reasonable in light of the circumstances surrounding [the] case'". United States v. Bejasa, 904 F. 2d 137, 139 -140 (2d Cir.), cert. denied, 498 U.S. 921 (1990).

Defendant having failed to make any specific showing as to the necessity for the disclosure of informant information, this ...


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