The opinion of the court was delivered by: C. Clifford Shirley, Jr. United States Magistrate Judge
REPORT AND RECOMMENDATION
All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) and by the Order [Doc. 46] of the Honorable Thomas W. Phillips, United States District Judge, for disposition or report and recommendation regarding disposition by the District Court as may be appropriate. Defendant Brian Keith Jones's Motion to Exclude Evidence or Testimony Related to the Ammunition Allegedly Seized from Mr. Jones [Doc. 44] is currently before the Court. The government filed a response [Doc. 49], on October 27, 2007. The parties appeared before the Court on November 7, 2007 for an evidentiary hearing. Assistant United States Attorney Tracy Stone ("AUSA Stone") was present for the government. Attorney Wade Davies ("Attorney Davies") was present representing Defendant Brian Keith Jones, who was also present. At the November 7, evidentiary hearing, AUSA Stone requested a continuance of the hearing in order to provide defense counsel with recently obtained Giglio materials, which pertained to Defendant's motion. The parties reconvened before the Court on November 13, 2007 and November 15, 2007. At the conclusion of the hearing on November 15, the Court took the motion and related filings under advisement on November 16, 2007.
I. POSITION OF THE PARTIES
Defendant Brian Keith Jones moves the Court to exclude any testimony or evidence offered by the government regarding ammunition allegedly seized as a result of a search of his pants pocket on May 17, 2005. Pursuant to Fed. R.Crim.P. 16(a)(1)(E), Defendant contends he is entitled to inspect any tangible objects within the government's possession, custody, or control when (i) those items are material to preparing the defense; (ii) the government intends to use the items in its case-in-chief at trial, or (iii) the item was obtained from or belongs to the defendant. Defendant argues his attorney made a timely request that the government produce the bullets that were allegedly seized, but that the government advised his attorney that the bullets cannot be produced because they were mixed by the law enforcement agency with other bullets not in evidence in this case, and cannot be identified. Defendant contends he is significantly prejudiced by the government's inability to produce the evidence since he is now unable to independently examine the bullets as well as cannot effectively challenge conclusions reached by an expert that may testify about the bullets. Defendant further contends that the denial of the opportunity to challenge the government's proof violates his right to Due Process and his right to present a defense. Thus, Defendant argues the evidence and any proffered testimony regarding the bullets should be excluded.
The government, in response, argues Defendant's motion should be denied because even though the bullets recovered from the Defendant in this case were destroyed, Defendant has failed to show bad faith on the part of the Sweetwater Police Department in the destruction of the evidence. Further, the government contends the party truly prejudiced by the missing ammunition is the government, not the Defendant. The government argues the Defendant is not prejudiced because there is no potential exculpatory value to Defendant, whereas the government must now prove the interstate nexus element without being able to show the ammunition at issue to the jury.
II. SUPPRESSION HEARING TESTIMONY
At the suppression hearing, the government called three witnesses: Officer Pat Henry, formerly of the Sweetwater Police Department; Assistant Chief James Michael Jenkins, of the Sweetwater Police Department; and Special Agent Steven Parris, of the Bureau of Alcohol, Tobacco, Firearms and Explosives.
Officer Pat Henry ("Officer Henry") testified that on May 17, 2005, the night in question, he recovered a loaded Smith and Wesson pistol (with one round of ammunition in the chamber) from a Super 8 motel room in which Defendant was staying. Officer Henry further testified he conducted a search of Defendant Jones and seized a 9 mm pistol and five rounds of ammunition.*fn1 He then testified upon leaving the Super 8 motel room, he returned to the Sweetwater Police Department ("SPD") where he logged and stored the bullets and the pistol. He testified as to Ex. 1, the property receipt for the pistol and the bullets. He noted that the property receipt indicated a loaded magazine. He testified he placed the evidence in Locker #8 at the patrol station. Officer Henry explained to the Court that if the evidence locker at the station is available for storage, it is left open. Officer Henry then stated he placed the evidence at issue in this case in Locker #8 and locked it with the attached pad lock. Officer Henry then testified that the pad lock is one in which can only be unlocked with a key. He testified that his offense report (Ex. 2) documented recovery of the pistol only and that the arrest warrant (Ex. 3) only mentioned possession of a weapon. Officer Henry further testified that he charged Defendant with violation of Tennessee state law relative to possession of the pistol only, because possession of bullets/ammunition by a convicted felon is not a Tennessee state law violation, thus the charge only incorporated the pistol. Officer Henry also testified he recovered a razor blade, digital scales, and plastic bags. He stated he put the bullets and the pistol in one bag and the rest of the items in a second bag and both bags were placed in Locker #8. to which he did not have a key.
Officer Henry testified that he left the SPD in September 2006 and accepted employment with the Monroe County Sheriff's Office. Officer Henry testified that he heard the state charges against Defendant were dismissed, but was not told the evidence was to be disposed of. He first became aware that evidence was missing a month ago. At the hearing, Officer Henry testified that based on his memory, the bullets matched the gun found, but he could not recall the brand of bullets and did not document that information.
On cross-examination, Officer Henry testified the property receipt (Ex. 1) was filled out at the Super 8 motel, noted one "loaded magazine", seized from Room 608, and was signed by Defendant Jones. He confirmed the pistol and the bullets seized went into one evidence bag. Officer Henry stated that normal routine practice was followed, which means the evidence bags were sealed and he wrote on each bag what was inside. When asked about the keys to the evidence lockers, Officer Henry testified that he did not have a key, but that the evidence custodian maintains control of the key. He testified he never saw the gun or the bullets again after he put them in the locker. He also testified the evidence log was not in his writing and would have been created by the evidence custodian (Ex. 6). He also stated that the current evidence custodian is the same individual as was in 2005.
He then testified that he contacted Special Agent Steven Parris ("SA Parris") with ATF regarding this case. He stated he called SA Parris a few weeks after Defendant's arrest on state charges, but did not keep a record of the phone call. He stated the SPD is not a large police department and that members of the department discuss arrests with each other all the time. He further testified that after he contacted SA Parris, he sent SA Parris Defendant's file and met with SA Parris in person. He then testified that he followed up with SA Parris regarding the intent of the federal government in this case. He was then asked about video cameras in the police cruiser, to which he responded that the seizure occurred in May 2005 and at that time, there were not video cameras in the SPD cruisers. Finally, he testified he'd never seen the metal box with random bullets in it.
On re-direct, Officer Henry testified in response to the Exhibits not mentioning the bullets recovered, that this was because it is not illegal under Tennessee law for a convicted felon to be in possession of bullets, so the bullets were not listed. He also explained that his various references to the bullets being seized from the Super 8 motel room ...