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United States v. Heitzenrater

February 1, 2010

UNITED STATES OF AMERICA
v.
RICHARD HEITZENRATER AND ROBERT KUZMA



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

ORDER OF COURT

Presently before the Court for disposition is the OMNIBUS PRETRIAL MOTIONS, in which Defendant Richard Heitzenrater seeks production of a wide array of information (Document No. 28). Co-Defendant Robert Kuzma has joined in the motions (Document No. 38). The government has timely responded to each motion and, thus, same are ripe for disposition.

MOTION FOR DISCOVERY (Document 28-1)

At the outset, the Court notes that the government has acknowledged its obligations under Brady and its progeny, Federal Rules of Criminal Procedure 12 and 16, and the Jencks Act.

The government also asserts that it "will voluntarily turn over Jencks Act material at least three business days prior to trial to ensure that unnecessary interruptions or delays are avoided." Resp. at 6. The Court is cognizant of the fact that such information, to the extent it exists, is clearly discoverable and should be voluntarily disclosed to the defendant "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) (holding that with respect to impeachment-type Brady material the defendant's "right to a fair trial will be fully protected if disclosure is made the day that the witness testifies"). A district court cannot compel early disclosure of Jencks material. See United States v. Murphy, 569 F.2d 771, 773 (3d Cir.), cert. denied, 435 U.S. 955 (1978). However, the Court strongly encourages the government to produce all Jencks Act material in sufficient time to avoid delays at trial. The government has agreed to provide notice of any Rule 404(b) evidence at least ten (10) days before trial and has agreed to provide Defendants with a written summary of any expert testimony that may be introduced in the government's case at least two weeks prior to trial. A similar time frame for the production of all Jencks Act material is highly encouraged.

The government's obligation to make available pretrial discovery materials is governed primarily by Rule 16 of the Federal Rules of Criminal Procedure. Outside of Rule 16, the Jencks Act, and Brady, and its progeny, however, a defendant has no general constitutional right to pretrial discovery. Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Those rights conferred by rule, statute, and case law cannot be used to compel the United States to disclose the minutia of its evidence, trial strategy, or investigation. United States v. Fiorvanti, 412 F.2d 407, 411 (3d Cir.), cert. denied, 396 U.S. 837 (1969).

The Court also observes that the government has made a request for reciprocal discovery subject to disclosure pursuant to Federal Rule of Criminal Procedure 16(b)(1). See Response at 33.

A number of Defendants' requests pertain to information about the government's anticipated trial witnesses. The government represents that the majority of this information - to the extent that it exists - will be disclosed at the time that the government discloses any Jencks Act materials. See Resp. at 6. Additionally, the government represents that it will provide impeachment material which relates to its trial witnesses at the time it discloses its Jencks Act materials for the witnesses. Id. at 11.

The Court of Appeals for the Third Circuit has recognized that discovery in criminal cases is limited to those areas listed in Federal Rule of Criminal Procedure 16(a)(1), "with some additional material being discoverable in accordance with statutory pronouncements and the due process clause of the Constitution." United States v. Ramos, 27 F.3d 65, 68 (3d Cir. 1994). Generally, these other areas are limited to the Jencks Act and materials available pursuant to the Brady doctrine. Id. Keeping these principles in mind, the individual requests of Defendants will be addressed seriatim.

a. Written or Recorded Statements by Defendant

The government responds that the Defendants' statements which fall within the purview of Fed. R. Crim. P. 16(a)(1)(A) and (B) have already been disclosed with the materials provided pursuant to Local Criminal Rule 16.1. With that said, however, the government represents that there were no written or recorded statements by the Defendants that were provided. Accordingly, this request is DENIED AS MOOT WITHOUT PREJUDICE. To the extent that Defendants seek discovery of statements that fall beyond the purview of Fed. R. Crim. P. 16(a)(1)(A) & (B), this request is DENIED.

b. Any Oral Statement Made by the Defendants that the Government Intends to Introduce at Trial

The government's response appears to be non-responsive as it objects to producing statements by third parties. Pursuant to Federal Rule of Criminal Procedure 16(a)(1)(A), the government must disclose to the Defendants "the substance of any relevant oral statement made by the defendant[s], before or after arrest, in response to interrogation by a person the defendant knew was a government agent if the government intends to use the statement at trial." Therefore, to the extent that the government has any such oral statements of Defendants which fall within the purview of 16(a)(1)(A), this request is GRANTED.

c. Any and All Statements of Alleged Co-Conspirators

The government objects to this request as beyond the scope of discovery. The Court agrees. The law is well-settled that statements by third parties, whether alleged co-conspirators, prospective government witnesses, or individuals whose statements can be attributed to a defendant for evidentiary purposes, do not come with the ambit of Rule 16(a)(1)(A) and are not required to be disclosed in pretrial discovery. Rather, the Jencks Act controls production of statements of government witnesses. Accordingly, this request is DENIED.

d. Co-Conspirator Statements Made by Defendant

The government responds that Defendants' statements that fall within the purview of Fed. R. Crim. P. 16(a)(1)(A) & B have already been disclosed with the materials provided pursuant to Local Criminal Rule 16.1. Accordingly, this request is DENIED AS MOOT WITHOUT PREJUDICE. To the extent that Defendants seek discovery of statements that fall beyond the purview of Fed. R. Crim. P. 16(a)(1)(A) & (B), this request is DENIED.

e. Copy of Defendants' Prior Record

The government responds that no criminal records were located for these Defendants. Accordingly, this request is DENIED AS MOOT WITHOUT PREJUDICE.

f. Books, Papers and Tangible Objects

The government represents that on October 8, 2009, Attorney Ross viewed the data recovered from the Ambridge Police Department digital video recording system, and that the forensic examiner also responded telephonically to questions posed by Mr. Ross. The government further asserts that "[a]ny reasonable request for discovery will be accommodated." Accordingly, this request is DENIED AS MOOT WITHOUT PREJUDICE.

g. Written or Recorded Statements of Witnesses

The government objects to pretrial discovery of these materials. The Court agrees. To require disclosure at this time of the requested information is tantamount to having the government identify its witnesses. Under the law, the government is not obliged to provide a witness list in a non-capital case, except in conformity with the Jencks Act, which requires the government to provide the defense with statements of witnesses that the government intends to call at trial.

The government has acknowledged its responsibilities under the Jencks Act. Accordingly, Defendants' request ...


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