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United States of America v. Anthony Avery

December 17, 2012

UNITED STATES OF AMERICA,
v.
ANTHONY AVERY, LINDA JOHNSON, ET AL., DEFENDANTS.



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

Order

Before the Court is defendant Linda Johnson's (also known as Linda Crump) omnibus motion seeking various forms of discovery relief (Docket No. 19). Specifically, Johnson seeks Federal Rules of Evidence 404(b) and 609 disclosure; disclosure of Government informants; preservation of agents' notes; production of Brady material; and joining in co-defendants' motions.

Motions at one point were due by December 19, 2011, with responses due January 9, 2012 (Docket No. 18). Johnson's motion was argued and deemed submitted on December 6, 2012 (text minute entry, Dec. 6, 2012). Also pending are the motions of defendants Anthony Avery (Docket Nos. 34, 76) and Spiwe Barnes (Docket Nos. 68, 74), which had further briefing and are scheduled for argument on December 21, 2012 (Docket No. 69). This Order will address most of Johnson's motion save where she joined in co-defendants' motions; relief sought jointly will be considered separately as those motions are submitted.

The Government, in its response, served a cross-demand for Rule 16(b) discovery (Docket No. 39, Gov't Response at 8-9).

BACKGROUND

This is a drug possession conspiracy case. As alleged in the Superseding Indictment (Docket No. 56), Johnson was charged with conspiring (with Avery and Barnes) to possess with the intent to distribute 5 kilograms or more of cocaine, between January 2008 and June 14, 2011, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (id.).

DISCUSSION

I. FRE 404(b) and 609

Johnson first requests disclosure of all evidence of prior bad acts that the Government intends to use in its case-in-chief, pursuant to Federal Rule of Evidence 404(b) (Docket No. 19, Def. Atty. Affirm. ¶ 6). She seeks an advanced ruling on the use of her prior convictions (id. ¶ 4).

Rule 404 requires that the defendant be given "reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to use at trial." The Government has represented that it will produce it as ordered by the trial court (Docket No. 39, Gov't Response at 2). This is sufficient in this case. This Court will not determine the admissibility of prior bad act evidence, reserving that issue for the District Court prior to trial.

II. Disclosure of Government's Informants

Johnson next seeks the pre-trial disclosure of the identity of any informants in this case (Docket No. 19, Def. Atty. Aff. ¶ 7). The Government objects to identifying its informants at this time, concluding that defendants have not made the requisite showing that the informant's testimony is material to the defense presented and arguing that informants may be in danger if identified given defendant's discussing killing a co-defendant (Docket No. 39, Gov't Response at 2-3).

The Government is not required to furnish the identities of informants unless it is essential to the defense. Roviaro v. United States, 353 U.S. 52, 60-61 (1957); United States v. Saa, 859 F.2d 1067, 1073 (2d Cir.), cert. denied, 489 U.S. 1089 (1988). Nor does Rule 16 require the Government to disclose the names of witnesses prior to trial, United States v. Bejasa, 904 F.2d 137, 139 (2d Cir.), cert. denied, 498 U.S. 921 (1990). Defendants have not established that the ...


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