The opinion of the court was delivered by: C. Clifford Shirley, Jr. United States Magistrate Judge
All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for disposition or report and recommendation regarding disposition by the District Court as may be appropriate. This cause came before the undersigned on November 13, 2006, for a hearing on Defendants' Motion For Discovery [Doc. 39] and Defendants' Motion For Order Requiring Advanced Disclosure Of 404(b) Evidence [Doc. 42], both filed on October 20, 2006. Assistant United States Attorneys Cynthia Davidson and Greg Wheddle appeared on behalf of the government. Attorney Thomas Dillard and Wade Davies were present representing Defendant Lawanna Brock and Attorney Dan Warlick was present representing Defendant Rondal Brock. Both Defendants were present at the hearing.
1. Motion For Order Requiring Advanced Disclosure Of 404(b) Evidence [Doc. 42]
Defendants' move [Doc. 42] for an Order requiring the government to provide notice twenty-one (21) days in advance of trial of the general nature of any Rule 404(b) evidence it intends to introduce at trial. Defendants contends [Doc. 43] that meaningful advance notice and disclosure of 404(b) evidence prior to trial will avoid undue surprise at trial and provide the opportunity for the Court to make its evidentiary ruling in a fair and informed manner.
The government objects [Doc. 46] to Defendants' request for twenty-one days pretrial notice, noting that the Court's Order on Discovery and Scheduling [Doc. 3] directs the government to give any notice pursuant to F.R.E. Rule 404(b) at least seven days before trial. Arguing that the Defendants have offered no circumstance whatsoever to support their need for such early disclosure, the government contends that seven days notice is adequate time for Defendants to challenge the admissibility of such evidence in limine.
Rule 404(b) provides that upon the defendant's request, the government "shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice for good cause shown, of the general nature of any such evidence it intends to introduce at trial." Fed. R. Evid. 404(b). This Court's Order on Discovery and Scheduling [Doc. 3, para. I] states that "reasonable notice" under Rule 404(b) is deemed to be seven calendar days before trial unless the Court notes otherwise. At the November 13, 2006 hearing in this case, defense counsel gave no compelling need for an earlier disclosure, and the Court finds no reason to disturb the seven-day time frame provided in the Order on Discovery and Scheduling. Accordingly, Defendants' Motion For Order Requiring Advanced Disclosure Of 404(b) Evidence [Doc. 42] is DENIED in light of the fact that the Order on Scheduling and Discovery already adequately provides for pretrial notice of the government's intention to introduce 404(b) evidence.
2. Defendants' Motion For Discovery [Doc. 39]
Defendants' move [Doc. 48] the Court for an order requiring the government to provide certain items of discovery. Defendants have made six (6) specific discovery requests, as well as seven (7) additional requests. In their motion, Defendants also acknowledge that the government has "provided certain items of discovery already."
The government, in its written response [Doc. 48], has individually addressed each request. The Court would note that Defendants' motion contains several broad discovery requests, to which Defendants have acknowledged that at least some of the discovery items requested have already been provided by the government. The Court further notes that Defendants made no specific argument at the November 13, 2006, hearing with regard to any specific or additional discovery request contained within said motion.
The Court will address each discovery request in turn.
With regard to Specific Request One, Defendants request any and all recordings, reports, and other items pertaining to undercover activity by law enforcement or agents of law enforcement, to include confidential informants, concerning the defendants or that are intended to be offered against them by the government in it's case in chief. Defendants also specifically request any reports, not already provided, by Agent Battle or anyone else involved in the investigation. The government responds that it is aware of its discovery obligations under Rule 16(a)(1)(E) and it has complied with those obligations. It also contends that various reports and memoranda demanded by the defense are not properly discoverable under Rule 16.
The Court's Order on Discovery and Scheduling [Doc. 3, para. B(3)]addresses the government's obligation in this regard:
The government shall permit the defendant to inspect and copy the following items or copies or portions thereof, or supply copies or portions thereof, which are within the possession, custody or control of the government, or the existence of which is known or by the exercise of due diligence may become known to the government:
(3) Books, papers, documents, photographs, tangible objects, buildings or places which are material to the preparation of the defendant's defense or which the government intends to use as evidence at trial to prove its case-in-chief, or were obtained from or belong to each defendant. See fn. 1 Fn 1. The United States Supreme Court has held that the phrase "material to the preparation of the defendant's defense" as used in Rule 16(a)(1)(E)(i), Fed.R.Cr.P. (formerly Rule 16(a)(1)(C), means material to the defendant's direct response to the government's case-in-chief. In other words, "the defendant's defense" encompasses only that part of the defendant's defense which refutes the government's arguments that defendant committed the crime charged. United States v. Armstrong, 517 U.S. 456 (1996).
Thus, the Court finds that it has already ordered the government to turn over materials which are material to the preparation of the defendant's defense as used in Rule 16(a)(1)(E). To the extent that Defendants request additional discovery, the Court finds that Defendants have not made the requisite showing under the Court's Order [Doc. 3] or Rule 16 to allow the Court to require the government to provide discovery beyond that which it has already ordered. Furthermore, the government has indicated that it is aware of its discovery obligations under Rule 16 and it has complied with those obligations. Accordingly, Defendants' Specific Request One is DENIED.
With regard to Specific Request Two, Defendants request any and all Explanation of Benefits ("EOB") forms relating to allegations contained in Counts Two through Seven of the Superceding Indictment. The government responds that it has provided all EOB's to which it currently has, but will continue to provide whatever it receives. Based on the government's representation, the Court finds that the government has agreed to provide all EOB forms that it currently has and/or receives in the future. Accordingly, Defendants' Specific Request Two is GRANTED.
With regard to Specific Request Three, Defendants request the identity of confidential informants or others providing information to state or federal law enforcement relating to the charges against them, as well as any impeachment material concerning the informants. The government responds that Defendants' request is simply a request for a witness list ...