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United States of America v. Ainsworth Kerr James Omar Romelo Tandrea Mitchell

September 7, 2012


The opinion of the court was delivered by: David Stewart Cercone United States District Judge

Electronic Filing


On August 18, 2011, a grand jury returned a two-count indictment against Tandrea Mitchel ("defendant") and two co-defendants charging each of them at count one with (1) conspiring to possess with intent to distribute 100 kilograms or more of marijuana, from in or around January 1, 2009, to on or about February 24, 2010, in violation of 21 U.S.C. § 846. A superseding indictment was filed on June 26, 2012, and charged that the conspiracy existed , from in or around January 1, 2009, to on or about August 30, 2010. Presently before the court are defendant's Motion to Produce Evidence the Government Intends to Use Under Rules 404(b) and 609, Motion for Bill of Particulars, Motion for Starks Hearing, Motion for Pretrial Hearing on Admissibility of Alleged Co-conspirator Statements and Motion to Exclude Evidence or Quash Subpoenas.*fn1 For the reasons set forth below, defendant's motions for notice under Rule 404(b), will be granted in part and denied in part, and her motions for a bill of particulars and a James hearing will be denied.

In the motion for a bill of particulars defendant seeks an order directing the government to disclose the "identities of the alleged known co-conspirators and the place or places where the conspiracy allegedly took place." In the motion for a Starks hearing, to produce material witness and to suppress audiotape recordings, defendant seeks identification of "the cooperating witness," the production of information regarding any threats, promises, and inducements given or promised to the witness, a hearing on the voluntariness of the witness' consent to the recorded conversations, and suppression of the conversations in the event the government fails to prove the consent was voluntary.*fn2 In the motion for a determination of the admissibility of co-conspirator statements defendant seeks the identification of all such statements and a evidentiary hearing to determine whether such statements were made by a co-conspirator during the course of the conspiracy and in furtherance thereof.

The government has filed a response acknowledging its discovery obligations under Fed. R. Crim. P. 16 and Brady v. Maryland, 386 U.S. 88 (1963). In this regard the government generally outlines the evidence it has and indicates that it has disclosed to defendant the affidavit pertaining to the search warrant used to obtain 540 pounds of marijuana, copies of all recorded conversations, and the Rule 16 material available at arraignment (including numerous case agent reports and copies of documents discovered during the search of a townhouse). It similarly has invited defense counsel to review the physical and documentary evidence in the government's possession. It thus asserts that it has already provided defendant with more information than it is required to disclose and objects to the disclosure of the additional information sought through the motion for a bill of particulars and/or the motion on the admissibility of co-conspirator statements. It avers that it is unaware of any "Brady material" (which apparently is intended to address only Brady exculpatory information and does not address the disclosure of Brady impeachment material other than to assert that a defendant's due process rights may be fully protected if disclosure is made "the day the witness testifies." It therefore appears to be implicitly requesting leeway to provide any such Brady impeachment and Giglio-type material with the disclosure of Jencks Act material, which it has agreed to disclose one week prior to trial.*fn3

To the extent defendant implicitly seeks discovery beyond what she is entitled to under Rule 16 through the two referenced motions, defendant's motions will be denied for a number of reasons. First, the government has complied with its obligations under Rule 16 to date, and has provided defendant with access to a substantial amount of information. Such disclosure is well beyond what is required to be disclosed.

Rule 16 was not designed to provide a defendant with a vehicle to discover the government's case in detail or the strategy it intends to pursue at trial. United States v. Fioravanti, 412 F.2d 407, 410 (3d Cir.), cert. denied, 396 U.S. 837 (1969). Nor is the rule designed to provide a defendant with verification that the use of anticipated evidence at trial by the defense is not vulnerable to attack by evidence within the government's possession. United States v. Randolph, 456 F.2d 132, 136 (3d Cir.), cert. denied, 408 U.S. 926 (1972). In fact, in sharp contrast with these propositions, the United States Court of Appeals for the Third Circuit has recognized that discovery in criminal cases is limited to those areas delineated in Rule 16, "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, 67-68 (3d Cir. 1994). As a general matter these other areas are limited to the Jencks Act and materials available pursuant to the so-called "Brady doctrine." Id. at 68.*fn4

Second, the government has no obligation to produce an outline of the evidence it will offer at trial. A defendant is not entitled to conduct a wholesale review of the government's investigation. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (there is no general constitutional right to discovery in a criminal case). Nor is a defendant entitled to obtain a list of the government's witnesses through discovery. See United States v. DePasquale, 740 F.2d 1282, 1294 (3d Cir. 1984), cert. denied, 469 U.S. 1228 (1985). Similarly, there is no authority to support a defendant's request for the specifics of each government witness' proposed testimony. See Fioravanti, 412 F.2d at 410 (a defendant has no right to discover the minutia of the government's evidence or the manner in which it will be used). And even assuming arguendo that this court has some residual discretion to order the pretrial disclosure of the government's evidence in appropriate circumstances, the current record falls woefully short of presenting sufficient grounds to justify such an extraordinary measure.

Third, the statements of co-conspirators, whether indicted or not, are not available to the defendant under Rule 16. 8 J. Moore, MOORE'S FEDERAL PRACTICE, 16.04[1], 16-64. Every circuit court to address the issue has held that such statements are not discoverable under Rule 16 and that disclosure of such statements is governed by the Jencks Act, regardless of whether the co-conspirator will be called as a witness. See United States v. Tarantino, 846 F.2d 1384, 1418 (D.C. Cir.), cert. denied, 488 U.S. 840 (1988); United States v. Roberts, 811 F.2d 257, 258 (4th Cir. 1987) (en banc); United States v. Diaz, 834 F.2d 287 (2d Cir. 1987), cert. denied, 488 U.S. 817 (1988). These courts have reasoned that disclosure of such statements is governed by the Jencks Act because the government must present some witness who will testify to the unavailable co-conspirator's statements. Accordingly, to the extent defendant requests pretrial disclosure of the actual co-conspirator statements through the identification of records and information bearing on any non-witness declarants whose statements are to be offered at trial, the request must be denied.*fn5

Another area for potential dispute concerns the disclosure of impeachment material. This includes the timing of any such materials and the production of any "criminal convictions," promises of leniency or similar sources of impeachment evidence concerning any government witness. As a general matter, a defendant's requests for impeachment material such as the criminal records of and promises or inducements made to prospective government witnesses raise issues under Brady and the Jencks Act. In Brady v. Maryland, the Supreme Court held that due process requires the disclosure of "evidence favorable to an accused upon request . . . where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87 (1963). The Supreme Court subsequently held that evidence which may be used to impeach the testimony of a government witness falls within the ambit of Brady when the credibility of the witness may have an effect on the jury's determination of guilt or innocence. See Giglio v. United States, 405 U.S. 150, 154 (1972); see also United States v. Starusko, 729 F.2d 256, 260 (3d Cir. 1984); Ramos, 27 F.3d at 68 (Brady material includes "materials that might affect the jury's judgment of the credibility of a crucial prosecution witness") (quoting United States v. Hill, 976 F.2d 132, 134-35 (3d Cir. 1992)). In United States v. Agurs, 427 U.S. 97, 107 (1976), the Supreme Court modified the Brady rule to require the government to disclose exculpatory evidence even when the defendant has not requested the information. Id. at 107; see also United States v. Perdomo, 929 F.2d 967, 970 (3d Cir. 1991).

The so-called Brady doctrine generally is understood as a rule of minimum fairness. United States v. Higgs, 713 F.2d 39, 42 (3d Cir. 1983), cert. denied, 464 U.S. 1048 (1984). It establishes a prosecutorial obligation rather than a general rule of pretrial discovery. The government thus has an obligation to produce favorable material bearing on a defendant's culpability or punishment as well as material bearing on the credibility of any witness who will be used to establish material matters at trial. This obligation is not to be used, however, to permit a defendant to obtain wholesale discovery of the government's principal case. See Higgs, 713 F.2d at 42; United States v. Bocra, 623 F.2d 281, 285 (3d Cir. 1980).

It is well-settled that the government's obligations under Brady require it to disclose actual exculpatory evidence without undue delay. Brady impeachment material ordinarily must be disclosed "in time for its effective use at trial." Higgs, 713 F.3d at 44; United States v. Blackwell, 954 F. Supp. 944, 968 (D.N.J. 1997). A district court has general discretionary authority to order the pretrial disclosure of Brady impeachment material and that discretion is to be exercised in a manner which "ensure[s] the effective administration of the criminal justice system." Government of Virgin Islands v. Martinez, 847 F.2d 125, 127 (3d Cir. 1988); Blackwell, 954 F. Supp. at 968. The government indicates it has disclosed and will continue to disclose all such requested material when it becomes available, and in any event it will make all such information available when it makes its Jencks Act disclosures, which it has committed to do one week prior to trial.

While the court recognized in Higgs that a defendant's due process rights to a fair trial are not violated where the disclosure of Brady impeachment material occurs in time to be used effectively, subsequent cases by the Third Circuit have reiterated and encouraged adherence to the long-standing policy of promoting the early production of all types of Brady material, including impeachment and so-called Higgs materials. See Starusko, 729 F.2d at 261 (citing United States ex rel. Marzeno v. Gengler, 574 F.2d 730, 739 (3d Cir. 1978); United States v. Kaplan, 554 F.2d 577, 578 (3d Cir. 1977)); see also United States v. Giampa, 904 F. Supp. 235, 281 (D.N.J. 1995); Blackwell, 954 F. Supp. at 968. The government's early production of Higgs-type impeachment material may well overlap with its subsequent production under the Jencks Act and provide defendant with "advanced" notice of certain witnesses the government intends to use at trial. Nevertheless, the court notes that after disclosure is made defense counsel can more fully advise her client regarding the appropriate development of the case, including consideration of any plea agreement offered by the government, and prepare for the orderly and effective presentation of evidence at trial. In light of all of the circumstances, the government is encouraged to disclose all Brady impeachment material without further delay, and in any event it will be ordered to produce all such material no later than ten business days prior to trial.*fn6

Defendant requests timely notice of any prior bad acts the government intends to introduce pursuant to Fed. R. Evid. 404(b). The government acknowledges its obligations under Fed. R. Evid. 404(b), and states that it has not determined what evidence, if any, it will sekk to offer under Rule 404(b).

The government is required to give notice of its intention to use Fed. R. Evid. 404(b) evidence prior to trial. Rule 404(b) specifically provides "that upon request by the accused the prosecution in a criminal case shall provide reasonable notice in advance of trial . . . of the general nature of any evidence it intends to introduce at trial."

The rule requires only the disclosure of the general nature of the evidence the government intends to introduce. A demand for specific evidentiary detail, such as dates, times, places and persons involved is overly broad. See United States v. Alex, 791 F. Supp. 723 (N.D. Ill. 1992). Thus the disclosure of "the general nature" of such evidence is that which is sufficient to put a defendant ...

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