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United States v. Ferguson

United States District Court, E.D. Tennessee, Greeneville Division

January 30, 2018



          Clifton L. Corker United States Magistrate Judge.

         All pretrial motions have been referred to the undersigned pursuant to 28 U.S.C. 636(b) for disposition or a report and recommendation regarding disposition by the District Court as appropriate. Defendant, Matthew Martland, has filed a Motion for Notice Pursuant to Rule 12(b)(4)(B) of Government's Intention to Use Evidence Arguably Subject to Suppression and Evidence Government Intends to Introduce in its Case In Chief at Trial [Doc. 87]. The other Defendants moved to join in this motion, [Docs. 93-95, 97, 100], and such motions were granted. [Docs. 96 & 101]. The Government filed a response [Doc. 115]; Martland replied [Doc. 123]. The motion is now ripe for resolution.

         I. Background and Parties' Positions

         Defendants are former employees of Wellco Enterprises, Inc., a now defunct manufacturer and supplier of military and rugged footwear that sold such footwear to the United States and the public [Docs. 36, 81]. The Superseding Indictment alleges Defendants conspired to commit and committed wire fraud, defrauded the United States, and smuggled goods into the United States by importing military-style boots that were made in China. It alleges deceptive marketing and sale of the boots as “Made in the USA” and compliant with the Trade Agreements Act of 1979, 19 U.S.C. § 2501 et seq. and the Berry Amendment, 10 U.S.C. § 2533a[1] [Id.].

         Defendants, relying upon Fed.R.Crim.Pro. 12(b)(4)(B), move the Court to order the Government to provide notice and designation of three categories of information. Defendants first seek designation of any and all information subject to Rule 16, including information in the possession custody and control of the Government or information which is known to the Government or could become known to the Government by exercise of reasonable diligence and that the Government now or at any time “contemplates or considers” using in its case in chief. Defendants next list topics about which they desire written notice. The third category of information effectively reiterates the first category. There is no indication from the record that Defendants sought a Rule 12(b)(4)(B) notice prior to filing the October 26, 2017, motion.

         The Government responds [Doc. 115] that Rule 12(b)(4)(B) is limited in scope in that it only relates to evidence the Government intends to use in its case in chief and is not a mechanism to be used to obtain more specific discovery than contemplated by Fed.R.Crim.Pro. 16. Further, the rule is intended to facilitate the making of suppression motions and avoid unnecessary motions if the Government does not intend to use the evidence. The Government, by its observation that Defendants filed their motion on the day of the pretrial motion deadline, suggests the present motion is untimely and further motions to suppress, which would necessarily be filed after the expiration of the motion deadline, would be barred. At the hearing, the Government advised that it does not possess information responsive to items 2(b) through (f) of Defendant's motion and that information responsive to 2(g), which seeks statements by Defendants and others “intended to be offered as a statement of the Defendant or a vicarious admission” was previously produced.

         Defendants replied urging the Court to require the Government to disclose the requested information and arguing that the motion deadline is not an absolute bar to filing additional motions if good cause exists for filing a motion past the motion deadline. Defendants ostensibly believe that if information is disclosed, such disclosure would constitute good cause.

         II. Analysis

         Fed.R.Crim.Pro. 12(b)(4)(B) provides as follows:

At the arraignment or as soon thereafter as practicable, the defendant may, in order to have an opportunity to suppress evidence under Rule 12(b)(3)(C), request notice of the government's intent to use (in its evidence-in-chief at trial) any evidence that the defendant may be entitled to discover under Rule 16.

         Fed.R.Crim.Pro. 12(b)(4)(B). The 1974 Advisory Committee note clarifies the rule's purpose:

In cases in which defendant wishes to know what types of evidence the government intends to use so that he can make his motion to suppress prior to trial, he can request the government give notice of its intention to use specified evidence….”

Fed.R.Crim.Pro. 12 Advisory Committee Notes (emphasis added).

         Rule 12(b)(4)(B) is substantively limited in two key respects. See United States v. Ishak, 277 F.R.D. 156, 158 (E.D. Va. 2011). The first limitation restricts the purpose for which a request may be made. The Rule entitles defendants to “notice of evidence that the government intends to use insofar as that notice would ‘provide the defendant with sufficient information to file the necessary suppression motions.'” Ishak, 277 F.R.D. at 158 (quoting United States v. Lujan, 530 F.Supp.2d 1224, 1246 (D. N.M. 2008)). In other words, disclosures should allow defendants to make informed decisions regarding whether to pursue suppression motions. Id. Rule 12(b)(4)(B) is not a mechanism to extract an exhibit or witness list from the ...

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