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United States v. McCabe

United States District Court, Second Circuit

November 19, 2013

TIMOTHY McCABE, Defendant.


H. KENNETH SCHROEDER, Jr., 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. #24.


The defendant, Timothy McCabe ("McCabe"), along with his wife, Theresa Morales, is charged in a nine-count, Superseding Indictment (Dkt. #45) with bank fraud and conspiracy to commit bank fraud. Presently pending is McCabe's omnibus discovery motion. Dkt. #48. Also pending are McCabe's motions to sever counts and to sever from co-defendant Morales, as well as a motion to dismiss for improper venue. This Court's Report, Recommendation and Order on defendant McCabe's motion to dismiss will be filed separately. What follows is this Court's Decision and Order addressing defendant McCabe's non-dispositive omnibus discovery motion.


Brady Material

Within his broad request labeled " Brady Material, " the defendant seeks the immediate disclosure of any material that is favorable to the defendant. Dkt. #48, pp.14-16. The defendant also seeks all "potentially favorable evidence, including, but not limited to: statements, Grand Jury testimony, witnesses, books, papers, reports, photographs, handwritten notes, synopses of statements made by witnesses, or any other tangible items of evidence in the custody and control of the government..." Dkt. #48, ¶33. Moreover, the defendant seeks exculpatory and/or impeaching material in the government's possession, custody and control. Thus, the Court will treat this request principally as one for Brady and Giglio material. In its response the government states,

[t]he Government acknowledges its affirmative and continuing duty to provide a defendant with exculpatory evidence, under the authority of Brady, as well as evidence that the defense might use to impeach the government's witnesses at trial.... In the instant case, the government agrees to provide impeachment Brady material, i.e., promises of leniency or immunity agreements with government witnesses, plea and/or non-prosecution agreements and letters or memorandum of understanding regarding such, criminal arrest records of all prosecution witnesses, immoral, vicious or criminal acts committed by witnesses, prior inconsistent statements, and payments to witnesses or family members thereof, and all other promises or considerations given by government personnel to government witnesses or family members thereof, in accordance with the schedule set by the District Court prior to trial and no later than when the government produces and delivers the Jencks Act material in this case.

Dkt. #51, pp.5 and 7 (internal citations omitted).

"[A]s a general rule, Brady and its progeny do not require immediate disclosure of all exculpatory and impeachment material upon request by a defendant." United States v. Coppa, 267 F.3d 132, 146 (2d Cir. 2001). The prosecution is obligated to disclose and turn over Brady material to the defense "in time for its effective use." Id. at 144. With respect to impeachment material that does not rise to the level of being Brady material, such as Jencks statements, the prosecution is not required to disclose and turn over such statements until after the witness has completed his/her direct testimony. See 18 U.S.C. § 3500; Fed. R. Crim. P. 26.2; In re United States, 834 F.2d 283 (2d Cir. 1987). However, if the government has adopted a policy of turning such materials over to the defendant prior to trial, the government shall comply with that policy; or in the alternative, produce such materials in accordance with the scheduling order to be issued by the trial judge.

Based on the representations made by counsel for the government as to its obligations under Brady and Giglio, the defendant's request is denied, but the government is hereby directed to comply with the Second Circuit Court of Appeals' holding in United States v. Coppa, 267 F.3d 132 (2d Cir. 2001) and United States v. Rodriguez, 496 F.3d 221 (2d Cir. 2007) by making timely disclosure of those materials to the defendant.

3500 Material

By this request, the defendant seeks the early disclosure of witness statements pursuant to Title 18, United States Code, Section 3500. Dkt. #48, pp.17-18. Specifically, the defendant states,

39. The trial of this case will involve thousands of documents.
40. With that in mind, we respectfully ask that the Court order the government to immediately prepare an exhibit list so that counsel for both sides can prepare for the case and be ready for trial when the time comes. While the defense has thousands of pages of discovery at the present time, in preparation for trial, it will have to go through those pages with whatever markings they have on them. If a week before trial, all those pages have to be remarked because of the government's exhibit list, it will take weeks to get that straightened out.
42. The defendant requests the Court to order the government to deliver to the defendant immediately, but in no event not later than four weeks prior ...

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