United States District Court, W.D. New York
DECISION AND ORDER
B. SCOTT UNITED STATES MAGISTRATE JUDGE
INTRODUCTION AND BACKGROUND
Government commenced this case against defendant Marcellus
Overton (“Overton”) by filing a two-count
indictment on January 13, 2015. (Dkt. No. 1.) In Count One,
the Government accuses Overton of sex trafficking of a minor
in violation of 18 U.S.C. §§ 1591(a)(1) and
1591(b)(2). In Count Two, the Government accuses Overton of
interstate transportation of a minor for purposes of criminal
sexual activity, in violation of 18 U.S.C. § 2423(a).
filed pretrial motions on August 8, 2016 (Dkt. No. 63) and
September 23, 2016 (Dkt. No. 65). In short, Overton seeks
various pretrial disclosures under Rule 16 of the Federal
Rules of Criminal Procedure (“FRCP”) and under 18
U.S.C. § 3500 and associated cases. The Government
opposes Overton's motions beyond discovery that it has
provided already and will provide upon issuance of a trial
order from District Judge William M. Skretny.
Skretny has referred this case to this Court under 28 U.S.C.
§ 636(b). (Dkt. Entry Jan. 15, 2015.) The Court held
oral argument on February 13, 2017. (Dkt. No. 76.) Since
Overton does not seek dispositive relief or any other relief
that would require factual or credibility assessments, the
Court adjudicates his motions as explained below by way of a
Decision and Order without the need for any hearings.
Statements from Overton
FRCP 16 requires the Government, upon a defendant's
request, to furnish oral, written, or recorded statements
that the defendant made during an interrogation by a known
government agent. FRCP 16 (a)(1)(A-B). The rule “gives
a defendant virtually an absolute right to his own statements
in the absence of highly unusual circumstances of a sort that
would otherwise justify a protective order.” United
States v. Stevens, 985 F.2d 1175, 1180 (2d Cir. 1993)
(internal quotation marks and citations omitted). Here, the
Government has respected Overton's rights by searching
its file and disclosing a statement that he made to local law
enforcement on January 18, 2013. The Government asserts that
it has no other written or recorded statements from Overton,
and Overton has given the Court no reason to doubt the
assertion. The Court accordingly denies this portion of
Overton's motions as moot but without prejudice to renew
if additional information emerges.
Prior Criminal Record and Bad Acts
has two requests in this category. First, Overton seeks
disclosure of his criminal record under FRCP 16(a)(1)(D).
Disclosure of a criminal record covers the fact of a prior
conviction in itself, not facts underlying that conviction.
See United States v. Hourihan, 66 F.3d 458, 463 (2d
Cir. 1995) (citation omitted). The Government has produced
records of Overton's prior criminal history and cites to
the pretrial services report that Overton received early in
the case from the United States Probation Office. The
Government's disclosures are sufficient.
seeks further to receive information about prior bad acts
that the Government intends to introduce at trial. This
request falls under Rule 404(b) of the Federal Rules of
Evidence (“FRE”). FRE 404 requires that
defendants 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
purpose of the notice provision is to reduce surprise and
promote early resolution of any challenge to admissibility of
the proffered evidence. While notice is typically provided no
more than two to three weeks before trial, a longer period is
appropriate where there is an absence of any threat to the
safety of prospective witnesses and the Rule 404(b) evidence
is important to the action. Reasonable notice of Rule 404(b)
evidence does not, however, require the Government to provide
unduly early notice.” United States v. Solnin,
81 F.Supp.3d 193, 210 (E.D.N.Y. 2015) (internal quotation and
editorial marks and citations omitted). “Courts have
found ‘reasonable notice' to be anywhere from over
four months to two weeks.” United States v.
James, No. 02 CR 0778 (SJ), 2007 WL 914242, at *23
(E.D.N.Y. Mar. 21, 2007) (citations omitted).
extent that the Government intends to use any such evidence
of a prior bad act in its case in chief, the Government will
produce all FRE 404(b) evidence as directed by Judge Skretny
in the eventual trial order. Overton has not demonstrated
circumstances here that would warrant a more immediate
determination, especially considering that a trial date has
not been set yet. The Government nonetheless should remain
mindful of what “reasonable notice” might mean
for this case.
Court accordingly denies this portion of Overton's
motions without prejudice, deferring to Judge Skretny as to
how much FRE 404(b) notice Overton should receive.