The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
This case was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #3.
The defendant, Mykale King ("King"), along with nineteen others, is charged in a multi-count Superseding Indictment (Dkt. #296) with conspiracy to possess with intent to distribute cocaine and cocaine base (Count 3) and four counts of using a telephone to facilitate possession with intent to distribute and distribution of controlled substances (Counts 44-47). What follows is this Court's Decision and Order with respect to defendant King's non-dispositive motions directed to the Superseding Indictment.*fn1 Dkt. #261.
Defendant King and twenty-six others were charged in a Criminal Complaint on December 15, 2009 with cocaine-related drug trafficking offenses in violation of Title 21, United States Code, Sections 841(a)(1), 843(b) and 846. The Criminal Complaint, authorized by the undersigned, was supported by a 281-page affidavit of Federal Bureau of Investigation ("FBI") Special Agent Vanessa Paris alleging, inter alia, that six months of court-authorized intercepted telephone communications, controlled purchases, informant information and other evidence established the defendants' long-standing participation in the trafficking of multi-kilogram quantities of cocaine and cocaine base.
Defendant King was among the ten defendants indicted by a Federal Grand Jury on June 29, 2010. Dkt. #1. Thereafter, on May 3, 2011, a Federal Grand Jury returned a Superseding Indictment against King and nineteen defendants. Dkt. #296. Defendant King filed pretrial motions on November 30, 2010 (Dkt. #261) and the government filed its opposition to King's pretrial motions on December 9, 2011 (Dkt. #372). Oral argument on defendant King's motions was held on December 14, 2011.
(a) Defendant's Statements
The defendant requests copies of any written or recorded statements made by her, as well as the substance of any oral statements she made which the government intends to offer in evidence at trial. Moreover, the defendant seeks any written summaries or hand written notes of any oral statements made by her. Dkt. #261, p.3. In its response, the government states in pertinent part, [s]ince the date of the indictment, the United States has complied, and intends to continue to comply, with the requirements of Rule 16. To that end, the United States provided comprehensive voluntary discovery in both the Indictment and Superseding Indictment portions of this case. On July 26, 2011, in accordance with the Court's scheduling order, the Government provided a complete set of digitized CDs to each defendant's attorney, which included all evidence in the Government's possession to which the defendant's [sic] were entitled under Rule 12 and Rule 16. Additionally, all physical evidence recovered in connection with this investigation is, and has been, available for inspection by the defendant's attorney. . . . As the government identifies any other evidence which falls within the scope of Rule 16, it will provide such evidence to defendants and their counsel. The government will continue to comply with its continuing duties to disclose set forth in Rule 16(c). The government herein notifies the defendant that it may introduce all of this evidence at trial. . . The government believes it is in full compliance with Rule 12 and Rule 16 discovery.
Dkt. #372, pp.1-3. Based on the representations made by counsel for the government, the defendant's request is denied as moot.
(b) Prior Record/Other Act Evidence
By this request the defendant is seeking her prior criminal record and any prior similar or bad acts which the government intends to introduce at trial. Dkt. #261, pp.3-4. The Court notes that the defendant makes a separate request pursuant to Federal Rules of Evidence 403, 404(b) and 609 and that request will be addressed below. Although the government does not separately respond to this request, elsewhere in its response, the government has stated that it believes that it is in full compliance with its Rule 12 and Rule 16 discovery obligations. Accordingly, based on the representations made by counsel for the government concerning its discovery obligations, as well as the notice requirement under Rule 404(b) and its disclosure obligations pursuant to Rule 608 and 609, defendant's request is denied as moot.
(c) Documents or Tangible Objects
The defendant seeks the disclosure of any documents or tangible objects including drugs seized which the government intends to use at trial or is material to the defense or was obtained from the defendant. Dkt. #261, p.4.
As noted above, in its response, the government states that it has and continues to comply with its discovery obligations pursuant to Rule 12 and Rule 16 of the Federal Rules of Criminal Procedure. Moreover, the government advises that to the extent it identifies any other evidence which falls within the scope of Rule 16, it will provide that evidence to defense counsel. Dkt. #372, pp.1-3. In addition, the government has stated that all physical evidence recovered in connection with the investigation has been available for inspection. Based on the representations made by counsel for the government that it has and will continue to comply with its discovery obligations under Rule 16 of the Federal Rules of Criminal Procedure, defendant's request is denied as moot.
(d) Physical Examinations, Mental Examinations and Scientific Reports
By this request the defendant seeks the reports of all tests and examinations conducted in this case. Dkt. #261, p.4. Although the government does not specifically respond to this request, the government did respond to defendant King's request for expert information. In that response, the government states,
[t]he Government will provide full disclosure of expert forensic chemists' credentials and methods used during chemical analyses in support of expert opinions. The government will also supply the name and qualifications of government law enforcement experts relating to vague/coded language, and firearms. The government reserves the right to offer the testimony of other expert witnesses. If the government decides to use such an expert witness, it will fully comply with Fed. R. Crim. P. Rule 16(a)(1)(G) and Fed. R. Evid. 702, 703, and 705.
Dkt. #372, pp.10-11. Based on the representations made by the government that it has and will continue to comply with its disclosure obligations as set forth in the Federal Rules of Criminal Procedure and the Federal ...