The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
Defendant Jelani Solomon has filed a series of pre-trial motions, to which the government has filed an Omnibus Response. The issues have been fully briefed and are ripe for decision. The Court will address and rule on the motions seriatim.
Motion for Disclosure of Brady Materials*fn1
Defendants request that the government provide him any exculpatory, impeachment, or otherwise favorable evidence. The government responds that "all known exculpatory evidence, . . . , has been provided. To the extent that additional material becomes known to the government, it will be provided to the Defendant." The Court notes that the government has acknowledged its duties under the Jencks Act, Brady, Giglio, and Rule 16 of the Federal Rules of Criminal Procedure. The Court has ordered that the government shall disclose all Brady exculpatory and Rule 16(a)(1) material forthwith.
Defendants also request production of specific groups of information. Those requests will be address seriatim.
a. Defendants request the military history of government witnesses and confidential informants. The government objects on the basis that this information is not discoverable as it constitutes neither favorable nor impeachment evidence. It does not appear to the Court that the requested information falls within one of the categories of information subject to disclosure under Rule 16. Therefore, this request is DENIED.
b. In subparagraphs (b) - (j), Defendants seek various information about the government's witnesses and/or informants, the substance of which is a request for impeachment-type Brady material covered by the rule of Giglio v. United States, 405 U.S. 150 (1972). The government responds that, to the extent any such information exists pertaining to its witnesses, such information will be provided, prior to trial with Jencks / impeachment material. As reflected in Pre-trial Scheduling Order No. 1, the government has agreed to provide Defendants with all Jencks/ impeachment material, along with its witness list, on or before August 31, 2007.
The Court notes that it has not ordered the government to reveal the identities of its witnesses and/or informants, and to compel disclosure of this requested information would, in all likelihood, reveal the identities of said witnesses and informants. Therefore, the request for an order which compels the disclosure of said information at this time is DENIED.
However, the Court is cognizant of the fact that such information, to the extent that it exists, is clearly discoverable and should be voluntarily disclosed to the Defendants "in sufficient time for its effective use at trial." United States v. Higgs, 713 F.2d 39, 44 (3d Cir.), cert. denied, 464 U.S. 1048 (1984).
c. Last, Defendants request information pertaining to any recorded conversations that do not contain any incriminating information or contain denials of illegal conduct by Jelani Solomon. The government responds that to the extent that such conversations involved Jelani Solomon, they have been provided. "To the extent that such conversations involved others, they are not discoverable, since the fact that an individual indicates no knowledge of criminal activity by a defendant does not constitute exculpatory evidence."
While the broad generalization that the fact that an individual indicates no knowledge of criminal activity by a defendant is not within the scope of Brady may be true, the Court can certainly envision situations in which such material would be exculpatory. However, because the identification of Brady material is preliminarily a matter for the prosecutor's judgment and because the government has represented that it has disclosed all exculpatory material, this request is DENIED WITHOUT PREJUDICE. See Kyles v. Whitley, 514 U.S. 419, 436 (1995) (finding that "the prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of 'reasonable probability' is reached. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence to the others acting on the government's behalf in the case . . . .").
Motion for Additional Discovery*fn2
Defendants' motion for additional discovery requests that the Court order the government to disclose a broad range of information. Again, the government has acknowledged its duties under the Jencks Act, Brady, Giglio, and Rules 12 and 16 of the Federal Rules of Criminal Procedure. The Court will address the requests seriatim, ...