United States District Court, W.D. Pennsylvania
GUSTAVE DIAMOND, District Judge.
On October 8, 2013, a grand jury returned a fourteen-count indictment against Steven Mensah Yawson ("defendant") charging him at count one with conspiracy to commit access device fraud, identity theft and money laundering; at counts 2-4 with aggravated identity theft; and, at counts 5-14 with money laundering.
Presently before the court are the following pretrial motions filed by defendant: (1) motion to compel production of Brady material (Document No. 22); (2) motion for timely disclosure of Jencks material (Document No. 23); (3) motion to compel the government to designate recordings it intends to use at trial (Document No. 24); and, (4) motion to compel the government to disclose evidence it intends to use under F.R.E. 404(b) and 609 (Document No. 25).
The government has filed an omnibus response to all of the pre-trial motions. In addition, the government has filed a motion for reciprocal discovery. (Document No. 30).
Motion to Compel Production of Brady Material
Defendant has filed a motion to compel production of exculpatory and impeachment material as required under Brady v. Maryland , 373 U.S. 83 (1963), and its progeny, including United States v. Giglio , 405 U.S. 150 (1972). This motion will be granted in part and denied in part.
Generally, governmental disclosure of evidence in criminal cases is governed by Federal Rule of Criminal Procedure 16(a). 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(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). As a general matter, these other areas are limited to the Jencks Act and materials available pursuant to the "Brady doctrine." Id.
In Brady, the Supreme Court held that the prosecution violates due process when it suppresses evidence favorable to the defendant that is material either to guilt or punishment. 373 U.S. at 87. Accordingly, the government has an obligation to disclose such evidence, United States v. Moreno , 727 F.3d 255, 262 (3d. Cir. 2013), and "[t]his includes both directly exculpatory evidence and impeachment evidence." United States v. Walker , 657 F.3d 160, 184-85 (3d Cir. 2011)(citing United States v. Bagley , 473 U.S. 667 (1985)(impeachment as well as exculpatory evidence falls within Brady rule). In Giglio, the Supreme Court held that a promise made to a government witness that he would not be prosecuted if he cooperated was relevant to the credibility of that witness and that non-disclosure of that evidence violated due process. Accordingly, under Giglio, "the government must disclose materials that go to the question of guilt or innocence as well as materials that might affect the jury's judgment of the credibility of a crucial prosecution witness." United States v. Friedman , 658 F.3d 342, 357 (3d Cir. 2011).
In response, the government has acknowledged its obligations under Brady and its progeny, as well as Fed.R.Crim.P. 16(a). As to Brady exculpatory evidence, the government indicates that it is unaware of the existence of any exculpatory Brady material pertaining to defendant but recognizes its continuing obligation to disclose should any such evidence come to light. As to any potential impeachment information regarding any prosecution witness, the government states that it will disclose any witness' criminal history and any other evidence, such as bias, cooperation agreements, plea agreements but requests that it not be required to do so until 3 days prior to trial. Defendant, however, asks that this information be disclosed at least 10 days and no later than 30 days before trial.
While the failure to timely disclose exculpatory evidence is not ipso facto reversible error so long as the defendant is not "prevented by lack of time to make needed investigation, " United States v. Vella , 414 Fed.Appx. 400, 409 (3d Cir. 2011), exculpatory evidence nevertheless should be disclosed without undue delay. United States v. Kaplan. 554 F.2d 577 , 580-81 (3d Cir. 1977)(delayed disclosure of exculpatory evidence is "not desirable and we do not encourage it"). Therefore, while the government indicates it currently is unaware of any exculpatory evidence, should any such evidence be discovered, the court will require the government to disclose it immediately upon becoming aware of it. United States v. Starusko , 729 F.2d 256, 261 (3d Cir. 1984) ("Whe district court may dictate by court order when Brady material must be disclosed"). While Brady impeachment material ordinarily need be disclosed only "in time for its effective use at trial, " United States v. Higgs , 713 F.2d 39, 44 (3d Cir. 1983), the Third Circuit Court of Appeals also encourages adherence to a long-standing policy of promoting early production of all types of Brady material "to ensure the effective administration of the criminal justice system." Starusko , 729 F.2d at 261 (quoting Higgs , 713 F.2d at 44, n.6). Given the nature of this case, the court believes that disclosure of Brady impeachment material no later than two weeks prior to trial will be sufficient to protect the due process rights of the defendant and to ensure that trial delay is avoided.
As the government is cognizant of its discovery obligations, and has stated its intent to fulfill those obligations if it already has not done so, defendant's Brady motion will be granted in part and denied in part, and the following order will be entered:
1) The government shall disclose all Brady exculpatory material forthwith or immediately upon its discovery;
2) The government shall disclose all Brady impeachment material and Rule 16(a) material no later than two weeks prior to trial;
3) The government shall disclose all Jencks material in accordance with 18 U.S.C. §3500(b), but with encouragement to disclose such material at least two weeks ...