The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
Presently before the Court for disposition are the following pretrial motions that have been filed by Defendant: MOTION TO COMPEL DISCLOSURE OF IMPEACHMENT MATERIAL AND EXCULPATORY EVIDENCE (Doc. No. 29); MOTION REQUESTING NOTICE PURSUANT TO RULE 404(b) (Doc. No. 30); and MOTION TO RETAIN AND PROVIDE ROUGH NOTES (Doc. No. 31). On August 24, 2011, a one count indictment was returned by the Grand Jury which charged Defendant with being a felon in possession of a firearm or ammunition on or about June 24, 2010, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The Government has responded to each motion (Doc. Nos. 32, 33, and 34). The motions are ripe for disposition.
1. Motion to Compel Disclosure of Impeachment Material and Exculpatory Evidence (Doc. No. 29)
Defendant seeks a host of items under Rule 16 and Brady v. Maryland, 373 U.S. 83 (1963). The government's obligation to make available pretrial discovery materials in criminal cases is governed primarily by Rule 16 of the Federal Rules of Criminal Procedure. Outside of Rule 16, the Jencks Act (18 U.S.C. § 3500), 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). 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). Those rights conferred by rule, statute, and case law, however, 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 notes that it interprets relevant case law of the Court of Appeals for the Third Circuit as encouraging the early disclosure of all exculpatory evidence, including strictly impeachment evidence. See United States v. Starusko, 729 F.2d 256, 261 (3d Cir. 1984) (re-affirming appellate court's longstanding policy which encourages early production of Brady material); United States v. Kaplan, 554 F.2d 577, 578 (3d Cir. 1977) ("we disapprove and discourage a practice of delayed production"); Government of the Virgin Islands v. Ruiz, 495 F.2d 1175, 1179 (3d Cir. 1974) (encouraging "an affirmative policy of prompt compliance"). 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, ." For the purpose of compliance with this Memorandum Order, "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.
At the outset, the Court notes that with its responses to the pre-trial motions, the government has acknowledged its discovery obligations under Brady and its progeny, Federal Rules of Criminal Procedure 12 and 16, and the Jencks Act. 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 / Giglio 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).
Defendant requests that all Brady material be disclosed forthwith, and the balance of the requested evidence ten (10) days prior to trial. Doc. No. 29. The government has represented that it has complied with its Brady obligation in this case, and, in fact, is unaware of any Brady material. Doc. No. 33. Nevertheless, it acknowledges its continuing duty to make Brady disclosures, and further notes the timing of any potential future Brady material. The government represents that "[t]o the extent that the government has not already voluntarily done so as of that point, the government agrees to exchange with the defense any remaining required Rule 16, Brady or Giglio material at the time it that Jencks material is disclosed." Doc. No. 33.
Accordingly, Defendant's request for Brady material is DENIED WITHOUT PREJUDICE. The Court further ORDERS that the Government shall provide to defense counsel copies of any Brady / Giglio impeachment information not previously disclosed at least ten (10) days in advance of the commencement of trial. The government is reminded of the mandate from our appellate court that "prosecutors have an obligation to make a thorough inquiry of all enforcement agencies that ha[ve] a potential connection with the[ir] witnesses." United States v. Risha, 445 F.3d 298, 304 (3d Cir. 2006) (citing United States v. Thornton, 1 F.3d 149, 158 (3d Cir. 1993)). See also United States v. Reyeros, 537 F.3d 270, 281 (3d Cir. 2008).
Beyond that which would be considered Brady material, Defendant seeks "immediate" disclosure of impeachment material pertaining to the government's anticipated trial witnesses and/or non-witness declarants whose statements are to be offered into evidence. Generally, the statements of third parties, whether alleged co-conspirators, prospective government witnesses, or individuals whose statements can be attributed to a defendant for evidentiary purposes, are not automatically subject to pretrial disclosure under Federal Rule of Criminal Procedure 16(a)(1)A) as "statements of defendant."
The statements made by co-conspirators who will testify at trial are governed by the Jencks Act. The government acknowledges its responsibilities under the Jencks Act, and has represented that to the extent it has not already done so, it will "voluntarily turn over Jencks Act materials during the week prior to trial to ensure that unnecessary interruptions or delays are avoided if the defense agrees to reciprocate at the same time."
Because the Jencks Act does not allow the Court to order the disclosure of statements of prospective government witnesses prior to trial, the Court cannot order the government to produce to Defendant at this time statements of co-conspirators who will testify at trial. Accordingly, the Defendant's request for statements of testifying co-conspirators is DENIED WITHOUT PREJUDICE. However, the Court strongly ...