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United States v. Overton

United States District Court, W.D. New York

February 16, 2017

United States of America
v.
Marcellus Overton, Defendant.

          DECISION AND ORDER

          HUGH B. SCOTT UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION AND BACKGROUND

         The 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).

         Overton 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.

         Judge 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.

         II. DISCUSSION

         A. Statements from Overton

         Generally, 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.

         B. Prior Criminal Record and Bad Acts

         Overton 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.

         Overton 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).

         To the 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.

         The 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.

         C. ...


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