The opinion of the court was delivered by: Varlan / Shirley
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 matter came before the Court for a motions hearing on November 1, 2007. At that time, the parties presented evidence and argument of counsel in support of their respective positions on twelve pretrial motions. Francisco Angeles was present at the hearing with his counsel, Tracy Smith. Jose Sanchez was present with his counsel, Mike Whalen. Assistant United States Attorney Tracy Stone represented the government. At the conclusion of the hearing, the parties requested time to submit post-hearing briefs incorporating the record at the hearing. The final of these briefs was filed December 10, 2007. The Court took these matters under advisement December 11, 2007.
The United States has charged that Francisco Angeles and Jose Sanchez committed a car jacking and kidnaping in Knoxville. On June 13, 2007, the two defendants are accused of overpowering Jose Garcia, taking control of his car using a knife and a semi-automatic gun. on him and took control of the car. They are alleged to have beat and bound victim, taking him to a motel room where they held him hostage until June 22, 2007. The government alleges that the two tortured Garcia and threatened to kill his family, for the purpose of extorting money from him, until he was able to make his escape. Complaint [Doc. 3]; Indictment [Doc. 7]; First Superseding Indictment [Doc. 49]. Jose Sanchez and Francisco Angeles were arrested in Houston, Texas and returned to this district to answer the charge. The government alleges that both defendants are illegal aliens, with Angeles having been previously deported on March 16, 2000. Both defendants have entered pleas of not guilty to all the allegations. At the time of their arrest, both defendants purportedly gave statements to police which they now seek to suppress. Issues of suppression are addressed in a separately-filed Report and Recommendation to the District Court; the following pretrial motions are addressed herein:
1. Motion to Compel Disclosure by Agents to Government [Doc. 24] (Sanchez)
2. Motion for Conspiracy Hearing [Doc. 26] (Sanchez)
3. Motion to Retain Rough Notes [Doc. 28] (Sanchez)
4. Motion for Release of Brady [Doc. 30] (Angeles)
5. Motion for Discovery [Doc. 31] (Angeles)
6. Motion for Disclosure Expert Testimony [Doc. 32] (Angeles)
7. Motion for 404(b) [Doc. 33] (Angeles)
8. Motion in Limine [Doc. 34] (Angeles)
9. Motion to Retain Rough Notes [Doc. 35] (Angeles)
10. Motion for Pretrial Notice of Evidence - Rule 12(b)(4)(B) [Doc. 37] (Angeles) The United States has responded in opposition to each pretrial motion as follows: Consolidated Response to [Angeles]*fn1 Motions [Doc. 30, 31, 32, 33, 35, 37] - [Doc. 41]; Response to [Angeles] Motion in Limine [Doc. 34] - [Doc. 42]; Consolidated Response to Sanchez Discovery-Related Motions [Doc. 24, 26, 28] - [Doc. 44].
1. Motion to Compel Disclosure by Agents to Gov't. [Doc. 24]
Sanchez moves the Court for an order requiring all participating agents and/or agencies cooperating in this investigation to disclose and provide to the prosecuting attorney in this case all materials in their possession, custody or control, regardless of relevancy or materiality. The defendant contends providing these files to the prosecutor will enable him to review all available information, so as to discharge his Rule 16(a)(1) and Brady-Kyles disclosure obligations.
The government responds at [Doc. 44] that Kyles v. Whitley, 514 U.S. 419 (1995), cannot be read as either imposing a duty on the prosecutor to learn of information by other government agencies that have no involvement in the prosecution at issue, or as requiring that all information and materials pertaining to a case be transferred from investigative agencies to the Office of the United States Attorney. Next, the government contends that an order of this magnitude would impermissibly interfere with its method for making such disclosures. It furthermore states that it is not equipped to be the repository of all the information and material compiled in a case. Finally, the government notes that the Defendant's motion extends to "all materials" and contends that it is not prepared or equipped to assume custody of all materials, like drugs, firearms, or contraband. The government states to the Court that it is well-aware of its obligations under Brady and will take the necessary steps to comply with its discovery obligations. Interestingly, the government says that the Office of the United States Attorney is not large enough to house this information for all the cases being prosecuted in EDTN.
According to Brady v. Maryland, "the suppression by the prosecution of evidence favorable to an accused...violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87 (1963). In order to comply with Brady, the "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in this case, including the police." Kyles v. Whitley, 514 U.S. 419, 437 (1995). Supreme Court precedent does not, however, require possession to trigger the prosecutor's duty to disclose, and in fact, holds quite the opposite. In Kyles the Court expressly rejected the state's argument that it had no duty to disclose materials known only to the police and not to the prosecution. Id. at 438. Therefore, the Brady rule extends to evidence "known only to police investigators and not to the prosecutor." Strickler v. Greene, 527 U.S. 263, 280-81 (1999) (quoting Kyles, 514 U.S. at 438).
The Court's Order on Discovery and Scheduling [Doc. 10] states the government "shall comply with Rule 16(a)(1)(A)-(F)" of the Federal Rules of Criminal Procedure and in paragraph E, specifically states that:
The government shall reveal to the defendant and permit inspection and copying of all information and material known to the government which may be favorable to the defendant on the issues of guilt or punishment within the scope of Brady v. Maryland, 373 U.S. 83 (1963), United States v. Agurs, 427 U.S. 97 (1976) (exculpatory evidence), and United States v. Bagley, 473 U.S. 667 (1985) (impeachment evidence).
The Court finds that it has already ordered the government to turn over materials within the scope of Brady. Furthermore, the government has acknowledged its duty under Brady and Kyles, and has stated that it is taking the necessary steps to comply with its discovery obligations. Thus, the Court takes this as an acknowledgment that the prosecuting attorney has met, or will meet, his duty to learn of favorable evidence known to government agents acting on the government's behalf. To the extent that the defendant relies on its motion, the Court finds it overly broad in that the request appears to impose a greater duty on the prosecutor in this case than that required by Kyles. Accordingly, Mr. Sanchez' Motion for Agents, Officers and Employees to Disclose and Provide Evidence in Their Possession, Custody or Control to the Prosecuting Attorney [Doc. 24] is DENIED.
3. Motion for Conspiracy Hearing [Doc. 26]
Sanchez moves the Court to conduct a hearing pursuant to United States v. Enright, 579 F.2d 980 (6th Cir. 1978) in order to determine whether or not the government can satisfy its burden of proof on the existence of a conspiracy before any co-conspirator statements may be admitted in the government's case-in-chief at trial. He argues that before the government can take advantage of the co-conspirator exception of the hearsay rule, it must show by a preponderance of the evidence that a conspiracy existed, that the defendant against whom the hearsay is offered was a member of the conspiracy and that the hearsay statement was made in the course and in the furtherance of the conspiracy. United States v. Vinson, 606 F.2d 144, 152 (6th Cir. 1979). Defendant accurately states that the Sixth Circuit has outlined three alternative methods by which the district court can make a determination as to the admissibility of hearsay statements under the coconspirator exception to the hearsay rule: (1) conduct a pretrial mini-hearing outside the presence of the jury and listen to the proof of the conspiracy, (2) require the government to produce non-hearsay evidence during the course of trial before making the necessary finding, and (3) admit the hearsay statements subject to a later demonstration of their admissibility. Vinson, 606 F.2d at 152-53. The defendants urge the Court to proceed with the first option, conduct a pretrial hearing as to the evidence of the conspiracy before considering admission of the alleged statements. The defendant argues that this is the most cautious and preferred order of proof, citing authority from other circuits in support. He asserts that such a pretrial hearing would not be burdensome to the government, and not unduly so when compared to the potential harm averted.
The government opposes a pretrial determination on this issue as burdensome and unnecessary [Doc. 44]. The United States argues that the Sixth Circuit has ...