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United States v. Melgar

August 8, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MARIO MELGAR AND JOSE ALBERTO AGUIRRE, DEFENDANTS.



The opinion of the court was delivered by: C. Clifford Shirley, Jr. United States Magistrate Judge

(VARLAN/SHIRLEY)

MEMORANDUM AND ORDER

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 criminal action is before the Court on defendant Jose Alberto Aguirre's Request for Pretrial Disclosure of Rule 404(b) Evidence [Doc. 33], Motion for Pretrial Production of Witness Statements [Doc. 34], Motion for Disclosure of Impeaching Information [Doc. 35], Request for Notice of Electronic Surveillance [Doc. 36], and Motion for Bill of Particulars [Doc. 39], and the government's Motion to Quash Rule 17 Subpoena. [Doc. 43] On July 30, 2008, the parties appeared before the Court for a hearing on the instant motions.*fn1 Attorney Craig P. Fickling appeared on behalf of defendant Melgar, and attorneys John Passanante, Randall E. Reagan, and Richard L. Gaines appeared on behalf of defendant Aguirre. Assistant United States Attorney Hugh B. Ward, Jr. appeared on behalf of the government. During the hearing, the Court heard argument as to the government's motion to quash [Doc. 43], and the parties stated that they relied on their briefs for the remainder of the motions. [Docs. 33, 34, 35, 36, 39] After the hearing, the Court took the motions under advisement and they are now ripe for adjudication. The Court will address each of the motions in turn.

I. Request for Pretrial Disclosure of Rule 404(b) Evidence [Doc. 33]

Defendant Aguirre moves the Court to require the government to disclose sixty days in advance of trial any evidence the government will seek to introduce at trial pursuant to Rule 404(b) of the Federal Rules of Evidence. The defendant contends that "[t]he disclosure of this information is necessary so that Mr. Jordan [sic] can meaningfully review the evidence and properly prepare to meet such evidence or seek its exclusion if justice so requires."*fn2 [Doc. 33 at p. 2]

The Court notes that its Order on Discovery and Scheduling states that:

Upon request, the government shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any Rule 404(b)-type evidence it intends to introduce at trial. Unless otherwise ordered by the Court "reasonable notice" shall be deemed to be seven (7) calendar days before trial. [Doc. 11 at ¶ I] The defendant's motion provides no specific reason why the Court should alter the deadline established in the Order on Discovery and Scheduling, nor did the defendant seek to offer such a reason during the hearing. Accordingly, the defendant's motion [Doc. 33]is hereby DENIED. The deadline for the disclosure of Rule 404(b) shall remain as stated in the Court's Order on Discovery and Scheduling.

II. Motion for Pretrial Production of Witness Statements [Doc. 34] and Motion for Disclosure of Impeaching Information [Doc. 35]

Defendant Aguirre next moves the Court to compel the government to produce before trial the statements of any witnesses the government will call at trial, as well as any evidence which might impeach such witnesses. The Court notes that the Court's Order on Discovery and Scheduling directs the government to make any disclosures required under Brady v. Maryland, 373 U.S. 83 (1963). [Doc. 11 at ¶ E] The Order also states that "[t]he government is strongly encouraged to reveal Jencks Act materials to defense counsel as soon as possible and well before the testimony of government witnesses in order to avoid undue interruptions of trials." [Doc. 11 at ¶ O] The Court further notes that the Sixth Circuit has held that the disclosure of Jencks Act material that is also arguably Brady material is governed by the Jencks Act. See United States v. Bencs, 28 F.3d 555, 561 (6th Cir. 1994). In other words, when a witness' statement could qualify as either Brady material or Jencks Act material, the government is under no obligation to disclose that statement until after the witness has completed direct examination. And while there is some tension in the case law regarding whether the Court has the discretion to order the government to produce a witness list even though the Federal Rules of Criminal Procedure do not require it, compare United States v. Kendricks, 623 F.2d 1165, 1168 (6th Cir. 1980) (holding that the district court has the discretion to order the prosecution to produce a witness list), with United States v. Presser, 844 F.2d 1275, 1285 (6th Cir. 1988) (holding that Rule 16 provides no authority for compelling the government to disclose Brady material or any other evidence not required by the rule pretrial), the Court does not find this case so unusual as to require such early disclosure. Accordingly, given the hierarchy of Jencks and Brady, the defendant's motions [Docs. 34, 35] are hereby DENIED.

III. Request for Notice of Electronic Surveillance [Doc. 36]

Defendant Aguirre next moves the Court to compel the government to produce copies of any electronic surveillance of the defendant by law enforcement. The Court notes that its Order on Discovery and Scheduling requires the government to "state whether the defendant was an aggrieved person as defined in 18 U.S.C. § 2510(11), of any electronic surveillance, and if so, shall set forth in detail the circumstances thereof." [Doc. 11 at ¶ J] In addition, the government states in its response to the motion that no such surveillance was conducted as to the defendant. [Doc. 40 at p. 5] Accordingly, given that the Court has already Ordered the government to disclose such information, and the government has stated that no such information exists, the defendant's motion [Doc. 36] is DENIED.

IV. Motion for Bill of Particulars [Doc. 39]

Defendant Aguirre next moves the Court to require the government to furnish a bill of particulars describing: all persons with whom defendant acted in concert during the course of the alleged offense, and persons otherwise present at all relevant conversations or transactions; the specifics of the role played by defendant Aguirre in the offense; and the exact date and location of the offense. The government opposes the motion, arguing that it has provided the defendant with the reports and the video camera ...


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