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 case came before the Court for a Motion Hearing on February 13, 2008. Assistant United States Attorney Tracee Plowell ("AUSA Plowell") appeared on behalf of the government. Attorney Norman McKellar ("Attorney McKellar") appeared on behalf of Defendant Bennett, who was also present. Since neither party requested the opportunity to file post-hearing briefs, the Court took this matter under advisement on February 13, 2008.
The Court will address the pending pretrial motions in the order in which they were taken up at the February 13, 2008 Motion Hearing.
1. Motion for Disclosure of Exculpatory Evidence
Defendant Bennett requests the disclosure of certain evidence within the possession, custody, or control of the government which may be described as exculpatory or favorable to his defense, including any information that may be used for the impeachment of government witnesses called to testify at trial [Doc. 43]. Defendant acknowledges this request is mainly covered by the Court's Order on Discovery and Scheduling. However, Defendant filed the motion arguing that the language of the Order on Discovery and Scheduling may not be sufficient due to the Supreme Court's narrowing the scope of Brady v. Maryland, 373 U.S. 83 (1963) in United States v. Agurs, 247 U.S. 97 (1976).
The government opposes Defendant's motion, contending the Order on Discovery and Scheduling provides the government with guidance as to what information it must provide to Defendant and the time line it must adhere to as well [Doc. 77]. The government further argues that the Sixth Circuit has stated that Brady does not create a constitutional right to discovery in a criminal case. As to Defendant's request for impeachment evidence, the government contends that under Sixth Circuit precedent, if the impeachment evidence is within in the ambit of the Jencks Act, then the express provisions of the Jencks Act control and the government may not be compelled to disclose that information before trial. See United States v. Presser, 844 F.2d 1275 (6th Cir. 1988).
The Court finds the information sought by Defendant has largely been previously addressed in the Court's Order on Discovery and Scheduling [Doc. 4]. As to Defendant's request for the criminal records of government witnesses, see Order on Discovery and Scheduling ¶ F. As to material to be used in impeachment of government witnesses, the Court's Order at paragraph E provides:
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 (1965), United States v. Agurs, 427 U.S. 97 (1976) (exculpatory evidence), and United States v. Bagley, 473 U.S. 6676 (1985) (impeachment evidence). Timing of such disclosure is governed by United States v. Presser, 844 F.2d 1275 (6th Cir. 1988).
The Court finds that it has already ordered the government to turn over materials within the scope of Brady, with the timing of such disclosures governed by Presser. Should Defendant become aware of specific material that may be subject to this provision, he may make a specific Brady request of the government, then bring the matter to the attention of the Court if necessary. Accordingly, Defendant's Motion for Disclosure of Exculpatory Evidence [Doc. 43] is DENIED.
2. Motion for Notice of Any Rule 404(b) Evidence
This motion [Doc. 49] requests any and all Rule 404(b) material the government intends to use as evidence during its case-in-chief at trial. In response, the government argues the substance of this motion is addressed in the Court's Order on Discovery and Scheduling, which the government will comply with at the appropriate time, being seven calendar days before trial [Doc. 72].
Rule 404(b) provides that upon 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 at paragraph I states that "reasonable notice" under Rule 404(b) is deemed to be seven calendar days before trial unless the Court notes otherwise. Accordingly, Defendant Bennett's Motion for Notice of Any Rule 404(b) Evidence [Doc. 49] is DENIED.
3. Motion For Evidence Arguably Subject to Suppression under Rule 12(b)(4)(B)
Defendant Bennett's motion, pursuant to Fed.R.Crim.P. 12(b)(4)(B), requests the Court to compel the government to "timely disclose evidence" it intends to use in its case-in-chief as trial or that would otherwise be subject to suppression under Fed.R.Crim.P. 12(b)(3)(C) [Doc. 45]. Defendant contends he filed this motion in anticipation of discovery and to put the government on notice that if any discoverable information is received by the government after the discovery deadline, he is still entitled to receive it.
The government, in response, argues that the scope of Fed. R. Crim. P 12(b)(4)(B) is limited and only requires the government give notice to the defendant of its intent to use certain evidence [Doc. 73]. The government contends the rule limits disclosure to evidence which it intends to use in its case-in-chief and further argues, in this case, discovery is not voluminous and the offense charged is straight-forward. However, the government advises the Court and Defendant that "it intends to use the evidence provided during discovery in its case-in-chief" [Doc. 73]. Moreover, at the motion hearing, AUSA Plowell advised Defendant that informant testimony will be "heavily used"; any statements to law enforcement officers will be provided with plenty of time for preparation for trial; and in accordance with an agreement made between the government and Defendant's former counsel, she will provide Jenkcs Act materials at least one month before trial.*fn1
Rule 12(b)(4)(B) requires the government, upon request of a defendant, to give notice to the defendant of the government's intent to use certain evidence at trial. The rule is limited in scope. By its own terms, it is limited to evidence the defendant would be entitled to discover under Rule 16 of the Federal Rules of Criminal Procedure. It also explicitly limits disclosure to evidence the government intends to use in its case-in-chief. Furthermore, this "provision contemplates motions filed in preparation for actual or potential motions to suppress evidence." United States v. Lanier, 578 F.2d 1246, 1254 (8th Cir. 1978). Rule 12(b)(4)(B) is not designed, nor intended, to be used to obtain more specific discovery than that provided by Rule 16. Rather, Rule 12(b)(4)(B) is intended to facilitate the making of pretrial suppression motions by allowing the defendant to avoid filing a motion to suppress when the government does not intend to use the evidence.
In this case, the Court finds no basis to alter an agreement between the government and former defense counsel to provide Jencks material one month prior to the start of trial. The Court finds this agreement is sufficient and fair to Defendant in his trial preparation. Furthermore, based on the government's representation that it has complied with the requirements of the Rule by providing defense counsel with the required information and will continue to comply with its discovery obligations, Defendant Bennett's Motion for Evidence Arguably Subject to Suppression Under Rule 12(b)(4) [Doc. 45] is DENIED.
4. Motion to Compel Discovery
Defendant Bennett's Motion to Compel Discovery constitutes his formal request for Rule 16 discovery [Doc. 54]. In particular, Defendant requests: (1) the results or reports of any scientific tests which are material to the preparation of his defense or intended for use by the government as evidence in their case-in-chief; (2) copies of all latent fingerprint or palm prints which have been identified by a government expert witness relating to this matter; (3) all rough notes of any government agents and officers; (4) an inventory of items confiscated from Defendant on July 16, 2007, including an inventory of the U.S. currency seized; and (5) any documents or tangible items to the preparation of his defense.
As to Defendant's requests for any results or laboratory reports, the government contends [Doc. 76] the Court has already directed the government to produce such results in its Order on Discovery and Scheduling. Furthermore, the government states it has already been in communication with defense counsel regarding the tests conducted on the narcotics at issue and the backlog at the DEA lab in Florida. As to Defendant's request for copies of all latent fingerprints or palm prints, the government states no such prints exist. As to Defendant's request for a copy of the rough notes of any government agents or officers, the government contends Defendant is not entitled to these notes in discovery as they are considered Jencks Act materials and the government will provide them to Defendant at the appropriate time. As to Defendant's request for an inventory of the items confiscated from him on or about July 16, 2007, the government contends such an inventory was provided in the affidavit of Special Agent Nocera, which accompanied the search warrant. As to Defendant's request for a list of all document or tangible items that are material to his defense, the government contends it intends to use all items seized from Defendant as set forth in the discovery, already received by Defendant.
At the February 13 hearing, AUSA Plowell advised the Court due to a backlog and a processing error, the laboratory analysis of the narcotics took longer than expected, but that defense counsel recently received a copy. AUSA Plowell further advised the Court the "processing error" was not an error in the actual analysis of the narcotics, but a filing error: when the report was sent back to the FBI, it was placed in the wrong file, which SA Nocera could testify to if the Court wished. AUSA Plowell also stated that while officers conducted surveillance of Defendant, no video surveillance was conducted, thus any surveillance by the officers is considered Jencks Act materials and not subject to discovery under Rule 16.
To the extent that the parties may resolve issues related to this information among themselves, all counsel are encouraged to resolve this issue without intervention of the Court. Should a dispute continue and counsel for Defendant is unable to view the requested information, to the extent it is in the possession of the government, Attorney McKellar is invited to seek judicial relief at the appropriate time. As to the retention of agents' rough notes, the Court has already ordered, in its Order on Discovery and Scheduling [Doc. 4 ¶ H], the relief requested by Defendant: "The government shall advise its agents and officers involved in this case to preserve all rough notes." Furthermore, the Court finds the government is well aware of its Jencks obligations and will provide material which falls under its scope one month prior to trial. Accordingly, Defendant's Motion to Compel Discovery [Doc. 54] is DENIED.
5. Motion for Disclosure of Identity and Location of Informants, Informers, and Cooperating Individuals and Motion for Disclosure of Identity of Persons Who Were Present or Participated
Citing Roviaro v. United States, 353 U.S. 53 (1957), Defendant Bennett moves the Court to order the government to inform defense counsel, in writing, of the identities and addresses of any confidential informants, informants, witnesses, confidential sources, cooperating witnesses, or any other sources of information [Doc. 38] as well as all persons known to the government to have been present at the time of the offenses alleged in the indictment [Doc. 40]. The government opposes Defendant's motions, arguing that Defendant's requests are beyond the scope of Rule 16 discovery and that he will be informed of the identity of testifying witnesses in accordance with the timeline set forth in the Court's Order on Discovery and Scheduling [Doc. 83]. The government also contends Defendant Bennett is simply trying to learn the identity of government witnesses, information which Defendant is not entitled to discover [Doc. 81]. Furthermore, at the hearing, the government took the position that in light of certain discovery already provided, Defendant should now be able to determine who some of their potential witnesses are.
With regard to the identities of confidential informants, the Supreme Court has recognized what has become known as the informer's privilege:
What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and by preserving their anonymity, encourages them to perform that obligation.
Roviaro, 353 U.S. at 59 (internal citations omitted).
This privilege is limited by the requirement that criminal trials be fundamentally fair. Id. at 60. The informer's privilege must yield when the informant's identity is "relevant and helpful to the defense of an accused" or "essential to a fair determination of a cause." Id. at 60-61. This determination is subject to a case-by-case balancing of "the public interest in protecting the flow of information against the individual's right to prepare his own defense." Id. at 62. In performing this balancing, the Court should consider, among other factors, the charges, the potential defenses, and the significance of the informer's testimony. Id. The Sixth Circuit has held that danger to life of the informant is entitled to significant weight in the balance. United States v. Jackson, 990 F.2d 251, 255 (6th Cir. 1993).
To compel the disclosure of the identity of confidential informants, a defendant must do more than speculate that knowing that person's identity would be helpful to his or her defense. See United States v. Trejo-Zambrano, 582 F.2d 460, 466 (9th Cir.), cert. denied, 439 U.S. 1005 (1978); see also United States v. Moore, 954 F.2d 379, 381 (6th Cir. 1992) (holding that "[m]ere invocation of [one's due process rights] does not automatically outweigh the public interest in protecting confidential informants"). However, the Sixth Circuit has held that an informer's "identity cannot be concealed from the defendant when it is critical to his case." United States v. Eddings, 478 F.2d 67, 70 (6th Cir. 1973) (quoting Branzburg v. Hays, 408 U.S. 665, 698 (1972)). As such,
[N]o fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. ... depend[ing] on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.
Eddings, 478 F.2d at 70. Furthermore, "disclosure has usually been required when, as in Roviaro, the informer was an active participant in the events underlying the defendant's potential liability." United States v. Sharp, 778 F.2d 1182, 1186 n.2 (6th Cir. 1985) (citing United States v. Eddings, 478 F.2d 67 (6th Cir. 1973)). However, "disclosure has usually been denied when the informer was not a participant, ...