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United States of America v. Trisha L. Baker

June 6, 2011

UNITED STATES OF AMERICA
v.
TRISHA L. BAKER
DEFENDANT.



The opinion of the court was delivered by: McVerry, J.

MEMORANDUM OPINION AND ORDER OF COURT

Pending now before the Court are nine (9) pre-trial motions in two separate filings by Defendant Trisha L. Baker. More specifically, Defendant's MOTION FOR DISCOVERY, MOTION FOR BILL OF PARTICULARS, MOTION FOR GOVERNMENT AGENTS AND STATE LOCAL LAW ENFORCEMENT OFFICERS TO RETAIN ROUGH NOTES AND WRITINGS, MOTION TO DISCLOSE AND EXCLUDE UNCHARGED MISCONDUCT EVIDENCE, MOTION FOR NOTICE BY THE GOVERNMENT OF INTENTION TO USE EVIDENCE ARGUABLE SUBJECT TO SUPPRESSION, was filed on April 8, 2011 at Doc. No. 144. Also, Defendant's MOTION FOR EARLY DISCLOSURE OF JENCKS MATERIALS, MOTION TO PRESERVE EVIDENCE, MOTION TO EXCLUDE EVIDENCE OF DEFENDANT'S PRIOR CONVICTIONS, MOTION FOR LEAVE TO FILE ADDITIONAL PRE-TRIAL MOTIONS, was filed on April 8, 2011 at Doc. No. 145. Also pending is GOVERNMENT'S OMNIBUS REPSONSE TO DEFENDANT'S PRETRIAL MOTIONS filed on April 22, 2011 at Doc. No. 150.

Defendant's motions are ripe for disposition. The Court will address each motion ad seriatim. For the reasons that follow, the motions will be granted in part and denied in part.

On June 29, 2010, Defendant was indicted on a one count criminal indictment in the mater sub judice. Doc. No. 1. Count one alleges that on or around March 2009 to in or around May 2009 in the Western District of Pennsylvania, Defendant did knowingly conspire with intent to commit offenses against the United States, specifically to make and pass counterfeit currency, in violation of Title 18, United States Code, section 371.

Motion for Discovery and Motion for Early Disclosure of Jencks Material Defendant files two motions that are evidentiary in nature. Defendant's motion for discovery, filed at Doc. No. 144, seeks disclosure of an itemized list of the following information:

a. Any and all statements by any witnesses or participants favorable to her;

b. The names and addresses of any and all witnesses favorable to the defense, whether they have provided statements or not, and whether the government intends to call them at trial or not;

c. Any and all specific evidence which detracts from the credibility or probative value of the testimony or evidence intended to be used by the prosecution, including, but not limited to, any documents, transcripts, motions or other materials alleging or evidencing that any prospective government witness is unreliable, including claims of illegality, misstatement, dishonesty or untruthfulness made by defendants or attorneys in other cases or by agents or law enforcement officers or attorneys who have worked with the witness on other cases;

d. Any and all promises or representations made to a government witness, including but not limited to immunity, preferential treatment, payments or promises of payments or leniency;

e. Any and all prior contradictory statements given by prosecution witnesses;

f. Any materials, documents or exhibits which contain exculpatory matter within the purview of Brady v. Maryland, 373 U.S. 83 (1963), and other cases, in the government's possession or may be by the exercise of due diligence be accessible to the government;

g. Any and all joint venturers and/or accomplices and/or persons otherwise considered to be coconspirators' statements, whether indicted or unindicted, which the government intends to introduce at trial where these statements would be attributable to Defendant under Federal Rule of Evidence 801(d)(2)(E);

h. A list of all government witnesses anticipated to be called at trial;

i. Any and all negative exculpatory statements, i.e., statements of informed witnesses that do not mention the Defendant;

j. Any and all evidence showing government witnesses' bias, psychiatric treatment, or other evidence showing lack of competency, impartiality or credibility under Giglio v. United States, 405 U.S. 150 (1972);

k. The criminal records, if any, of any prospective prosecution witnesses, informants, joint venturers, accomplices or unindicted co-conspirators.

Doc. No. 144 at pp. 2 -- 4. Defendant has also moved for an order to compel the government to disclose Jencks Act material "prior to trial." Doc. No. 145.

The Court begins by noting that discovery in a criminal case is far different from that in a civil case. As the parties well know, the government's obligation to make available pretrial discovery materials is governed primarily by Rule 16 of the Federal Rules of Criminal Procedure. The United States 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 doctrine articulated in the United States Supreme Court decision Brady v. Maryland.*fn1 Id. Beyond Rule 16, the Jencks Act, and Brady and its progeny*fn2 , however, a defendant has no general constitutional right to pretrial discovery. Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). The rights conferred by rule, statute, and case law cannot be used to compel the United States to disclose the minutia of its investigation, evidence, witnesses and/or trial strategy. United States v. Fiorvanti, 412 F.2d 407, 411 (3d Cir.), cert. denied, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969).

Local Criminal Rule 16(c) requires "subject to a continuing duty of disclosure, the government shall notify the defendant of the existence of exculpatory evidence ." "Exculpatory evidence" as referenced in Local Criminal Rule 16(c) is defined by the Court based on case law as follows: all material information favorable to the accused because it tends to: (1) cast doubt on the defendant's guilt as to any essential element in any count in the indictment or information; (2) cast doubt on the admissibility of evidence that the government anticipates offering in its case-in-chief, that might be subject to a motion to suppress or exclude, which would, if allowed, be appealable pursuant to 18 U.S.C. § 3731; (3) cast doubt on the credibility or accuracy of any evidence that the government anticipates offering in its case-in-chief; or (4) diminish the degree of the defendant's culpability or defendant's Offense Level under the United States Sentencing Guidelines.

Likewise, the Jencks Act, 18 U.S.C. § 3500(b), requires the government to disclose prior recorded statements of its witnesses, when related to the subject matter of their testimony, after each witness testifies on direct examination. United States v. Weaver, 267 F.3d 231, 245 (3d Cir.2001). According to 18 U.S.C. § 3500(a), "no statement or report in the possession of the United States which was made by a government witness or prospective government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case."

The government acknowledges its obligations under Brady and its progeny and Federal Rules of Criminal Procedure 12 and 16, as well as the Jencks Act. Doc. No. 150. The government also represents: (1) that it is willing to cooperate with any reasonable request by Defendant; (2) that it is unaware of any exculpatory Brady material pertaining to Defendant; and (3) that to the extent that the government is in possession of material covered by Giglio, those items will be turned over at least three (3) days prior to trial. Doc. No. 150. The government further represents that it will likewise voluntarily turn over Jencks Act materials in its possession at least three (3) days prior to trial, and that it will turn over "impeachment" materials regarding its witnesses at the same time it discloses Jencks Act materials. Doc. No. 150. Beyond that, the government objects to the early disclosure of its witnesses and generally objects to any expansion of its discovery obligations. Id. As the government notes in its response, there is no authority by which this court can compel the government to provide Jencks Act statements prior to the time the witness has testified on direct examination at trial. See Doc. No. 150 at pp. 6 -- 7.

Given the government's response, the Court is confident that the government is well aware of its due process continuing obligation to provide all exculpatory material in its files to Defendant, including Brady impeachment evidence, and that it takes that obligation seriously and will faithfully discharge its duty without "tacking too close to the wind." Kyles v. Whitley, 514 U.S. 419, 439 (1995). Accordingly, Defendant's discovery motions will be granted in part, and the government shall turn over all information falling within the purview of Rule 16(a) and the Brady doctrine to the extent that any such information exists and has not already been provided to Defendant. To the ...


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