United States District Court, W.D. Pennsylvania
JOY FLOWERS CONTI, Chief District Judge.
Before the court are numerous motions that affect further scheduling of these criminal matters. (ECF No. 827, 832.) For the reasons set forth below, the court will not reopen the record, and will strike Government Exhibits 29 and 30 from the record. (ECF No. 808-1 and -2.) There will be no further discovery in this case at this stage of the proceedings.
I. Procedural History
In these criminal prosecutions, defendant Erin House ("defendant"), now proceeding pro se, filed numerous motions to suppress evidence seized by the government, including recordings of conversations in which he participated using a cellular telephone. (ECF Nos. 313, 333 and 601.) The court held hearings on each of these motions, and the parties filed proposed findings of fact and conclusions of law. (ECF Nos. 779, 808, and 820.) This matter was to have been ripe for decision following the filing of defendant's reply proposed findings of fact and conclusions of law on March 10, 2015. (ECF No. 820.)
In its proposed findings of fact and conclusions of law, however, the government relied upon and attached three exhibits that had not been admitted into evidence at any of the hearings on the pending motions. Two exhibits were FBI linesheets for conversations that defendant alleged were illegally intercepted, (Gov. Ex. 29 and 30), and one exhibit was a portion of a pen register print out, with highlighting added by the government to identify certain communications, (Gov. Ex. 31). (ECF No. 808-1, -2, and -3.) The government explained that the additional exhibits were "self-explanatory and noncontroversial, " had been "provided previously to Defendant House, " and "clarify[ied] and explain[ed] documents and arguments made by House." (ECF No. 808 at 6 n.4.) Defendant, in his reply proposed findings of fact and conclusions of law, disputed those representations and objected to the government's submission of these three exhibits on the ground that they were not previously disclosed, and were, at this point in the proceedings, prejudicial. (ECF No. 820 at 1-4, 40-41.)
On the same day that defendant's reply proposed findings of fact and conclusions of law were docketed, the court ordered the government to respond to defendant's objection to the three new exhibits, and scheduled a hearing on the matter. (ECF No. 823.) In its response, the government argued that the evidence was not new because it corroborated the government's other evidence and only reflected a new "format" for information previously disclosed to defendant. (ECF No. 825 at 2-4.) The government also contended that defendant was not prejudiced because he has, to date, been unable to substantiate his claims or to show that the outcome of these proceedings would be different. (Id. at 4-5.)
Following the government's response, defendant filed a motion to compel and a reply brief in which he reiterated his prior arguments, and noted that additional discovery and testimony would now be required to authenticate how the linesheets were created, and to investigate the government's wiretap tapes and systems for inconsistencies and defects. (ECF Nos. 827 and 830 at 2-4.) In the motion to compel, defendant specifically requested that he be permitted to inspect and copy the original wiretap disks presented to the district court for sealing, the orders sealing those disks, and the logs of the individuals who monitored the wiretap. (ECF No. 827 at 1-2.) Defendant also requested that a computer expert be permitted to inspect the "hard drive and/or meta data from the system and/or systems that produced the information on the sealed disk." (Id.) The government opposed defendant's motion to compel, but indicated that it would voluntarily produce a disk containing all FBI linesheets and the orders sealing the wiretap disk. (ECF No. 833.)
On the same date that the government filed its opposition to defendant's motion to compel, the government filed a motion to reopen the record to admit Government Exhibits 29-31 into evidence. (ECF No. 832.) In support of that motion, the government argued that the record should be reopened because the exhibits were helpful to the court. (Id. at 1-2.) Defendant opposed that motion on the ground that reopening the record now would be unfair, untimely, and a cause of unnecessary and oppressive pretrial delay. (ECF Nos. 835 and 837.)
The court held a hearing on May 20, 2015, to address defendant's objection to Government Exhibits 29-31, defendant's motion to compel, and the government's motion to reopen the record. At the hearing, the parties agreed that Government Exhibit 31, by which the government added demonstrative highlighting to an exhibit already admitted into evidence by defendant, was properly before the court. (ECF No. 841 ("Trans.") at 10-11.) The remaining dispute, therefore, was whether the record should be reopened to permit the government to admit into evidence the two FBI linesheets, Government Exhibits 29 and 30, and if so, what further proceedings would be required with respect to that newly-admitted evidence.
The government reiterated the arguments made in its written submissions that the record should be reopened because the FBI linesheets were helpful to the court and were not "new" evidence. (Trans. at 6-8, 9-12.) The government described the linesheets elsewhere in the written record as combining the "call transcripts, start times, durations, and participating numbers in one document" and explained that "[t]his same information exists in multiple (and sometimes overlapping) places in the material previously given to House." (ECF No. 825 at 2.) Although the government did not make this argument in its written submissions in support of the motion to reopen the record, the government explained at the hearing, and elsewhere in the written record, that the linesheets had not been previously produced in this case because defendant's theories changed throughout these proceedings and the government could not have anticipated the manner in which the linesheets would be helpful to resolution of defendant's motions until after defendant filed his proposed findings of fact and conclusions of law. (Trans. at 7-8; see ECF No. 833 at 2 & n.1 (government making this argument in opposition to defendant's motion to compel).)
After reviewing the parties' submissions and considering the arguments made at the hearing, the court must conclude that the government failed to show that the facts and circumstances of this case satisfy the applicable legal standards. In reaching this conclusion, the court relies heavily on the prejudicial delay that would be caused by reopening the record at this stage of these proceedings, which have been pending for several years.
II. Legal Authorities
The decision whether to reopen the record at a suppression hearing falls within the discretion of the district court, but "courts should be extremely reluctant to grant reopenings." United States v. Coward, 296 F.3d 176, 180 (3d Cir. 2002). The party moving to reopen the record should provide an explanation for its failure to present the evidence earlier in the case. United States v. Kithcart, 218 F.3d 213, 220 (3d Cir. 2000). The court evaluates that explanation to determine whether it is both reasonable and adequate to explain the delay in producing the evidence. Id .; Coward, 296 F.3d at 181.
Although, in exercising its discretion, the court must consider the timeliness of the motion, the character of the evidence, and the effect of the granting of the motion, a district court's primary focus should be on whether the party opposing reopening would be prejudiced if reopening is permitted. United States v. Smith, 751 F.3d 107, 114 (3d Cir. 2014); United States v. Hugh, 236 F.Appx. 796, 802-03 (3d Cir. 2007) (Ambro, J., dissenting); Coward, 296 F.3d at 180; Kithcart, 218 F.3d at 220. In assessing prejudice, the court must consider the stage of the proceedings and whether the opposing party had notice of the new evidence, is able to rebut the evidence, or offer new evidence of its ...