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United States of America v. Harold Bacon

September 13, 2012


The opinion of the court was delivered by: Arthur J. Schwab United States District Judge



On February 15, 2011, the Government filed an Indictment against eleven Defendants charging them with various offenses related to an alleged conspiracy to distribute one kilogram or more of heroin.*fn1 Doc. No. 1. On June 7, 2011, a Superseding Indictment was filed adding eight more Co-Defendants. Doc. No. 143. Since that time, fourteen of nineteen Defendants have changed their plea and pled guilty to the offenses(s) charged or, pursuant to a plea agreement, a lesser included offense. Many of these Defendants have already been sentenced by this Court. The only Defendants who have not pled guilty are: Harold Bacon (1), Andre Allen (2), Clarence Thompson (9), Gregory Washington (11), and Duane Scott (18). On August 8, 2012, the Court entered a Pre-Trial Order setting deadlines for pre-trial matters and scheduling a jury trial for November 13, 2012. Doc. No. 869.

Defendants who will proceed to trial have filed thirty (30) pre-trial motions on various dates. Doc. Nos. 554, 555, 556, 557, 558, 559, 560, 562, 564, 565, 571, 572, 580, 582, 583, 584, 585, 586, 794, 828, 847, 854, 856, 857, 859, 861, 862, 863, 864, 865.*fn2 The Government filed an Omnibus Response on August 29, 2012. Doc. No. 901. Defendants' deadline to file their Replies was September 10, 2012. The only Reply was filed by Defendant Andre Allen in support of his Motion to Compel Expert Witness Information Under Fed. R. Crim. Pro. 16(a)(1)(G) (Doc. No. 847) and Motion to Suppress Wire and Electronic Communication (Doc. No. 828).

AND NOW, this 13th day of September 2012, after careful consideration of Defendants' Motions and the parties' briefs in support of and in opposition thereto, the Court rules as follows:

Motions for Disclosure/Discovery:

1. Motion for Discovery: Harold Bacon (Doc. No. 557)

2. Motion for Discovery . . . .: Gregory Washington (Doc. No. 580)*fn3

3. Motion for Discovery: Clarence Thompson (Doc. No. 582)

4. Proposed Motion for Discovery: Duane Scott (Doc. No. 854)

In these Motions, Defendants Bacon, Washington, Thompson, and Scott set forth categories of information that they would like the Government to be compelled to provide. Doc. Nos. 557, 580, 582, 854. Federal Rule of Criminal Procedure 16(a)(1) sets forth information that is subject to disclosure by the Government. The Government contends that it "has complied with its discovery obligations under Rule 16 and will continue to do so."*fn4 Doc. No. 901, 2. All parties must comply with their discovery obligations pursuant to Fed. R. Crim. Pro. 16 and the Court believes that the parties have done so. Furthermore, the Court finds that Defendants' requests for the categories of information are premature in light of the Court's Pre-trial Order setting forth dates for disclosure of Brady/Giglio and Jencks Act information (October 16, 2012, Doc. No. 869, ¶ 4). Therefore, Defendants' Motions for Disclosure (Doc. Nos. 557, 580, 582, and 854) are DENIED AS MOOT.

5. Motion for Release of Brady Materials: Harold Bacon (Doc. No. 556)

6. Motion for Disclosure of Impeachment Evidence: Clarence Thompson (Doc. No. 583)

7. Motion to Produce Favorable Evidence: Clarence Thompson (Doc. No. 585)

8. Motion for Disclosure of Plea Bargains, Preferential Treatment and Promises to Government Witnesses: Clarence Thompson (Doc. No. 586)

9. Proposed Motion for Request for Specific Kyles and Brady Information: Duane Scott (Doc. No. 864) Defendants Bacon, Thompson, and Scott seek exculpatory and/or impeachment information pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). These cases require that the Government produce any and all information and evidence that may be favorable to these Defendants. In their Motions, Defendants set forth categories of information which may contain such favorable material. Doc. Nos. 556, 583, 585, 586, 864. It appears to the Court that since the Motions have been filed (most were filed in February 2012), all parties have been co-operating to exchange information with each other. Doc. No. 556, 2, Doc. No. 901, 3 ("The prosecution welcomes the assistance of the [D]efendants in meeting this responsibility."). The Court's Pre-Trial Order sets forth that all remaining Brady/Giglio information be disclosed by October 16, 2012. Doc. No. 869, ¶ 4. The Court believes that this allows counsel for Defendants adequate time to review the materials and prepare for the November 13, 2012, trial date. Therefore, Defendants Motions for various Brady and Giglio materials (Doc. Nos. 556, 583, 585, 586, and 864) are DENIED AS MOOT.

10. Motion for Production of Jencks Material: Harold Bacon (Doc. No. 555)

11. . . . Motion for Production of Jencks Material: Gregory Washington (Doc. No. 580)

12. Proposed Motion for Early Disclosure of Jencks Act Material: Duane Scott (Doc. No. 859)

13. Proposed Motion to Prohibit Jencks Material in the Presence of the Jury: Duane Scott (Doc. No. 862)

The Government is obliged to provide Jencks Act material pursuant to 18 U.S.C. § 3500 and Fed. R. Crim. Pro. 26.2. Title 18 U.S.C. § 3500 provides that statements or reports of prospective Government witnesses shall not "be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case." The Court's Pre-Trial Order sets forth that the Government is encouraged to provide remaining Jencks Act material prior to the November 7, 2012, Pre-Trial Conference. Doc. No. 869, ¶ 4. Defendant Bacon notes that "the Jencks Act itself does not require the Government to produce these materials before a witness testifies at trial" but "the Court has the inherent power to require the production of such materials . . . ." Doc. No. 555, ¶ 7. The Court has encouraged the Government to provide Jencks Act material in advance of trial but, declines to order the Government to provide the material ...

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