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United States v. Atkinson

United States District Court, Western District of New York

November 3, 2014

UNITED STATES OF AMERICA,
v.
KELLY ATKINSON, Defendant.

DECISION AND ORDER

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 on dispositive motions. Dkt. #12.

PRELIMINARY STATEMENT

The defendant, Kelly Atkinson (“the defendant”), is charged in eighteen counts of a seventy-one count Second Superseding Indictment, with having violated: Title 18, United States Code, Section 1344 (bank fraud) (Count 1); Title 18, United States Code, Section 1349 (conspiracy to commit bank fraud) (Count 2); Title 18, United States Code, Section 1343 (wire fraud) (Counts 5-14); and, Title 18, United States Code, Section 1349 (conspiracy to commit wire fraud) (Count 15). Dkt. #69. Presently pending is the defendant’s omnibus discovery motion. Dkt. #55. The government filed opposition to the motion. Dkt. #63. Following oral argument, in a Text Order entered on June 4, 2014, this Court denied that portion of defendant Atkinson’s motion seeking a bill of particulars. Dkt. #64.

DISCUSSION AND ANALYSIS

Motion for Severance

By this request, defendant Kelly Atkinson seeks severance from his co-defendant, Brian Avery Smith. A Decision and Order on defendant’s motion to sever is left to the discretion of the District Judge to whom this case is assigned, District Judge Richard J. Arcara.

Discovery and Inspection

In his motion, the defendant acknowledges that the government has provided a copy of discovery to defense counsel. Dkt. #44, p.4. Pursuant to Federal Rule of Criminal Procedure 16(a)(1)(A)(B) & (D), the defendant now seeks disclosure of the following:

a. Disclosure of the names and identities of expert witnesses that the Government intends to call at trial, their qualifications, subject of testimony, and reports and the results of tests, examinations or experiments which are material to the preparation of Defendant’s defense, or which are intended for use by the Government in its evidence-in-chief at trial.
b. Pursuant to Rule 12(b)(4) of the Federal Rules of Criminal Procedure, the Defendant requests written notification of any evidence the Government intends to use at its case-in-chief that may, in any way, be subject to a motion to suppress in which the Defendant is entitled to discover pursuant to Rule 16.

Dkt. #55, p.5. In its response, the government contends that through the voluntary discovery process it has provided or made available all material presently within its possession that is within the purview of Rule 16 and in compliance with Rule 12(b)(4)(B) and believes that discovery is complete. Dkt. #63, p.10. Moreover, with respect to the defendant’s request concerning expert testimony, the government states,

[t]he government is not aware of the existence of any results or reports of physical or mental examinations, or of any scientific tests or experiments made in connection with the case. If any such examinations, tests, or experiments are conducted, results will be provided upon receipt by the government.

Dkt. #63, p.11. Accordingly, based on the representations made by the government, the defendant’s ...


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