United States District Court, W.D. New York
HUGH B. SCOTT, Magistrate Judge.
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. 10).
The instant matter before the Court is the defendant's omnibus motion (Docket No. 17) which seeks the following relief: discovery; production of Federal Rules of Evidence 404(b), 608, 609 materials; disclosure of Brady materials; early disclosure of Jencks Act materials; preservation of rough notes (id, ).
The Government has filed responding papers (also seeking reciprocal discovery, Docket No. 18, Gov't Response at 13-14), and oral argument was heard on March 19, 2914 (Docket No. 19), and continued through December 1, 2014 (Docket No. 32; see also Docket Nos. 26, 27, 28, 30, 31), and the motions then were deemed submitted (Docket No. 32).
Defendant is charged with a single count of transmitting, in interstate commerce, a threatening text (Docket No. 9, Indict.). The Indictment also asserts a forfeiture allegation claiming $175, 000 (id.). All this allegedly was in violation of 18 U.S.C. § 875(b) and the forfeiture pursuant to 18 U.S.C. § 981(a)(1)(C), 21 U.S.C. § 853(p), and 28 U.S.C. § 2461(d) (id.).
The defendant first seeks various items of pretrial discovery (Docket No. 17, Def. Atty. Affirm. ¶ 3). Although there is no general constitutional right to pretrial discovery in a federal criminal case, a defendant does have a pretrial discovery right with respect to certain matters. For example, under the Fifth Amendment's due process clause, a defendant is entitled to specific exculpatory evidence which is material either to guilt or punishment. In addition, the Government has certain disclosure obligations under Rule 16 of the Federal Rules of Criminal Procedure and the Jencks Act, 18 U.S.C. § 3500.
Pursuant to Rule 16(a)(1)(C), defendant specifically seeks production of various documents, books, records, photographs, and other tangible objects in the possession, custody or control of the Government. Defendants identify several specific categories of items which they seek to be produced.
The Government's response to these specific requests is that it produced FBI FD-302 reports, copies of audio recordings, offered to produce text messages and consent to search form signed by Amy Morath regarding the search of a Sheridan Drive, Town of Tonawanda, New York, residence, and other tangible materials (Docket No. 18, Gov't Response at 4-5, 6).
Pursuant to Rule 16(a)(1)(D), the defendant has requested the production of the results of any scientific tests. The Government responds that it made such tests available to defendant (Docket No. 18, Gov't Response at 5). The Court assumes that the Government's production has satisfied the defendant's request in this regard.
Pursuant to Rule 12(d)(2), defendant also requests that the Government give notice of its intention to use at trial any evidence which is discoverable under Rule 16. Such notice, under the rules, avoids the necessity of a defendant having to move to suppress evidence which the Government does not intend to use. The Government indicates that it intends to use all the evidence.
Pursuant to Rule 16(a)(1)(E), defendant seeks a written summary of any expert testimony that the Government intends to use in its direct case, along with the expert's qualifications, and the basis for the expert's opinion, whether or not the expert files a report. The Government states that it will comply with this request as directed by this Court (Docket No. 18, Gov't Response at 5-6). This ...