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United States of America v. Timothy Ernle

April 5, 2012

UNITED STATES OF AMERICA,
v.
TIMOTHY ERNLE,
DEFENDANT.



The opinion of the court was delivered by: Hon. Hugh B. Scott

Order

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. 4).

The instant matter before the Court is the Defendant's omnibus motion filed by counsel when defendant was represented (Docket No. 10; see also Docket No. 15) which seeks the following relief: production of Brady materials; disclosure; discovery; severance of counts; disclosure of Federal Rules of Evidence 403, 404(b), 609 materials; disclosure of identity evidence; audibility hearing; exclusion of statements from non-testifying co-conspirators; Jencks Act materials; inspection of Government agents' personnel files; preservation of rough notes; motion to suppress statements. After defendant sought to proceed pro se, he submitted further requests for the Government to produce discovery on particular materials (Docket No. 16) and also wrote to the Court (Docket No. 17, letter of Defendant to Chambers, Mar. 8, 2012) including a copy of his letter to the Government seeking further discovery regarding the joinder of offenses against him. The Government responded to defense counsel's filed motion (Docket No. 12), but not defendant's pro se requests since they were submitted during oral argument, and all motions were argued and submitted on March 5, 2012 (text minute entry, Mar. 5, 2012). The Government also moves for reciprocal discovery from defendant (Docket No. 12, Gov't Response at 6-7). Defendant later filed a further discovery request for the bank surveillance videotapes from the July 22, 2010, M&T robbery, or a video depicting the time and date of the robbery (Docket No. 18).

A separate Report and Recommendation will consider defendant's motion to suppress and for severance of counts. Certain relief sought by defendant will be deferred for consideration by the District Judge trying this case.

BACKGROUND

Defendant is charged in a nine-count Indictment of bank robbery, entry of a bank with intent to commit larceny, and bank larceny, in violation of 18 U.S.C. §§ 2113(a), (d), and (b). He is charged with robbery of the Evans Savings Bank in Hamburg, New York, on July 3, 2010 (id., Counts 1, 2, 3) and July 13, 2010 (id., Counts 4, 5, 6), and an M&T Bank in Kenmore, New York, on July 22, 2010 (id., Counts 7, 8, 9). The alleged robberies will be hereinafter identified by their date or location.

Defendant's Pro se Requests

Defense counsel filed a conventional omnibus motion that is detailed on each form of sought relief below. After assuming responsibility for representing himself, defendant gave to this Court 33 discovery requests. He seeks surveillance video from the Kenmore robbery (Docket No. 16, Def. Discovery Request ¶ 1); cell phone and pen register materials (id. ¶¶ 2, 4-7, 3); internal security logs from the Kenmore bank (id. ¶¶ 8-9); witness information (id. ¶¶ 14-16, 17). He also wants to learn about the Bluetooth device found outside of the Kenmore bank (id. ¶ 10); the make and model of the dye pack used at that bank (id. ¶ 11); and the bait pack serial numbers for the July 13 and 22 robberies (id. ¶ 12). He wants various investigative reports by local and New York State police surrounding his robberies (id. ¶¶ 13, 17, 25). He seeks the confiscation order and inventory for his wife Amanda Blaze (id. ¶ 18). He seeks photographs from the July 13 robbery (id. ¶ 19); full latent fingerprint and chemical lab reports from the Federal Bureau of Investigation (id. ¶ 20) and the fingerprint report from the Hamburg and Erie County authorities (id. ¶ 21). He then asks about various seizures that occurred at a casino, including the serial numbers of the bills confiscated there (id. ¶ 22), how certain bills were identified (id. ¶ 23), and the casino's cage journals and reports (id. ¶ 24). Defendant also wants the full DNA report (id. ¶ 26); the information on the July 9 robbery (id. ¶ 27); and disclosure of the contents of a backpack found in the woods that may be involved with the July 13 robbery (id.

¶ 33). He wants to learn whether there were jailhouse informants against him (id. ¶ 28). He wants the statements and reports of his New York State parole officer (id. ¶ 29) that his former defense counsel argued defendant allegedly made incriminating statements to that defendant seeks to suppress (Docket No. 10, Def. Atty. Affirm. ¶ 34). Defendant also wants his own statements produced (Docket No. 16, Def. Discovery Request ¶ 31); his wife's 302 forms (id.

¶ 32); and records showing the chain of custody for the Hamburg and Kenmore robberies (id. ¶ 30).

Some of these requests overlap those made by defense counsel prior to defendant assuming self-representation. Where defense counsel has made a parallel motion and the Government has responded, this Order will address defendant's pro se request for similar relief.

As for the others to which the Government has not responded, the Government will be afforded an opportunity to brief defendant's pro se motion to produce these items, pursuant to a schedule set forth below.

DISCUSSION

Although defendant is now proceeding pro se, this Court will consider the motion filed by counsel*fn1 on his behalf prior to his change in representation presumed adopted by the defendant now representing himself.

I. Brady

Defendant has requested that the Government disclose all materials potentially favorable to him, including information to be used for the impeachment of the Government's witnesses, as required under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 105 (1979), and their progeny (Docket No. 10, Def. Atty. Affirm. ¶¶ 56-61). 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 records and information revealing prior misconduct ... attributed to the [Government's] witness," United States v. Kiszewski, 877 F.2d 210 (2d Cir. 1989).

Defendant's motion identifies numerous specific categories of documents encompassing both exculpatory and impeachment Brady materials which they seek to obtain. The Government's written response is that it acknowledged its obligations and will furnish impeachment Brady material (Docket No. 12, Gov't Response at 15, 17-18), either when ordered or when it produces Jencks Act materials (id. at 18).

The instant case does not appear to be unusually complex. Balancing all of the above, the Court concludes that disclosure of such impeachment material, if any exists, in accordance with the common practice in this district (prior to trial so long as it is disclosed in sufficient time for the defendant to have a ...


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