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United States v. Cyr

United States District Court, E.D. Michigan, Northern Division

March 1, 2017



          THOMAS L. LUDINGTON United States District Judge

         On September 14, 2016 an indictment was issued charging Defendant Norman Jaoquin Cyr, an Indian, with eight counts. See ECF No. 1. Three of the counts charge Defendant with child abuse in the second degree arising out of incidents with G.C., a minor, in violation of M.C.L. 750.136b(3) and 18 U.S.C. §§ 1151, 1153, and 13. Three additional counts charge Defendant with child abuse in the third degree arising out of incidents with G.C. in violation of M.C.L. 750.136b(5) and 18 U.S.C. §§ 1151, 1153, and 13. Defendant has also been charged with one count of domestic assault by an habitual offender in violation of 18 U.S.C. §§ 117 and 1151, and one count of assaulting an intimate or dating partner by strangulation or attempted strangulation in violation of 18 U.S.C. §§ 113(a)(8), 1151, and 1153. These latter two charges arise out of conduct with A.D., Defendant's spouse. On December 14, 2016 a superseding indictment was issued charging Defendant with three additional counts of domestic assault by an habitual offender for allegedly assaulting G.C. See ECF No. 15.

         On January 18, 2017 Defendant filed four motions. See ECF Nos. 18-21. His first motion, a motion for bond, was denied by Magistrate Judge Patricia T. Morris on January 23, 2017. His remaining three motions are now ready for decision.


         Defendant Cyr first requests that “the Government obtain and disclose to Defense Counsel any and all psychological or psychiatric reports, school records, juvenile records, or any juvenile convictions or drug reports or rehab information” of G.C. See ECF No. 19. In support of his request, Defendant argues that G.C. has a history of suspensions, expulsions, use of marijuana, fighting, and curfew violations. He also alleges that she has been convicted of multiple juvenile offenses, including domestic violence and automobile theft, and speculates that she has a history of mental illness and drug use. He alleges that he requires the information in order to prepare for cross examination at trial. In response, the Government notes that it does not possess the records sought by Defendant, and argues that Defendant has not established a need to discover privileged and inadmissible information. Defendant did not file a reply.

         In contrast to the broad scope of discovery in civil cases, the discovery available to a criminal defendant is relatively constricted, and is generally circumscribed by the following three rules: (1) Federal Rule of Criminal Procedure 16, controlling discovery of materials within the government's possession, custody, or control regarding the defendant, see United States v. Llanez-Garcia, 735 F.3d 483, 493 (6th Cir. 2013); (2) The Jencks Act, 18 U.S.C. § 3500, which holds that the Government must provide statements or reports in its possession of witnesses who testify at trial; and (3) the doctrine set forth in Brady. See United States v. Presser, 844 F.2d 1275, 1285, fn. 12 (6th Cir.1988) (stating that in most criminal prosecutions, these three rules “exhaust the universe of discovery to which the defendant is entitled”).


         Defendant claims that the information he seeks falls within the meaning of Brady, and is necessary to preserve his rights to cross-examine G.C. under the Confrontation Clause. Under Brady, the government violates due process when it fails to disclose evidence related to guilt or sentencing in a criminal case that is favorable to the defendant. Brady, 373 U.S. at 87.[1] The Brady rule extends to material that could be used to impeach the credibility of a government witness. Giglio v. United States, 405 U.S. 150, 154-55, (1972) (impeachment evidence falls within Brady “[w]hen the reliability of a given witness may well be determinative of guilt or innocence”). However, “[t]here is no general constitutional right to discovery in a criminal case, and Brady did not create one.” Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Instead, Brady only applies to “the discovery, after trial of information which had been known to the prosecution but unknown to the defense.” United States v. Agurs, 427 U.S. 97, 103 (1976). The purpose of Brady is not “to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur.” United States v. Bagley, 473 U.S. 667, 675 (1985).

         A primary interest secured by the Sixth Amendment's Confrontation Clause is a defendant's right of cross-examination. See Douglas v. Alabama, 380 U.S. 415, 418 (1965). However, “the Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, that the defendant might wish.” United States v. Owens, 484 U.S. 554, 559 (1988) (internal quotations omitted). This is because the Confrontation Clause is not a constitutionally compelled rule of pretrial discovery but a “trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination.” Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) (holding that the confrontation clause was not violated by preventing the defendant from discovering the victim's State of Pennsylvania Children and Youth Services file, where the judge allowed defense counsel to fully cross-examine trial witnesses on the subject). “The ability to question adverse witnesses ... does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony” and “[n]ormally the right to confront one's accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses.” Id. at 53-54.

         In the present case, Defendant seeks to invoke Brady and the Confrontation Clause in order to obtain privileged psychological records and records that may pertain to substance abuse. He also seeks G.C.'s juvenile records. Each of these categories of evidence will be addressed in turn.


         With regard to G.C.'s psychological and medical records, courts must consider the privacy interest of a patient in the confidentiality of her medical records and the societal interest in encouraging the free flow of information between patient and psychotherapist. However, those interests are not absolute and, in the context of criminal matters, must “yield to the paramount right of the defense to cross-examine effectively the witness in a criminal case.” United States v. Society of Independent Gasoline Marketers of America, 624 F.2d 461, 469 (4th Cir. 1979) (holding that the district court committed reversible error in denying the defendant access to a witness's hospital records for use in cross examination). A desire to spare a witness embarrassment which disclosure of medical records might entail is insufficient justification for withholding such records from criminal defendants on trial for their liberty. See Society of Independent Gasoline Marketers, 624 F.2d at 469, Batey v. Haas, No. 2013 WL 1810762, at *10 (E.D. Mich. Apr. 30, 2013).

         Courts have routinely found that certain forms of mental disorder have high probative value on the issue of credibility. United States v. Lindstrom, 698 F.2d 1154, 1160 (11th Cir. 1983) (finding reversible error where the district court denied defendant access to a witness's psychiatric materials where the witness was suffering from ongoing mental illness for which she had been confined, and which could seriously affect her ability to know, comprehend, and relate to the truth). “While mental illness can indeed be relevant to a witness's credibility, courts hold that the decision of whether or not to allow in evidence of a witness's mental illness falls within the broad discretion of trial courts as they balance possible prejudice versus probative value.” Boggs v. Collins, 226 F.3d 728, 742 (6th Cir. 2000) (quotations and citations omitted). Factors a court should consider in allowing evidence of witness's mental illness are the nature of the psychological problem, the temporal recency or remoteness of the condition, and whether the witness suffered from the condition at the time of the events to which she is to testify. Id.

         Here, Defendant broadly requests G.C.'s psychological, medical, hypothetical drug reports and rehab records. In support of this request Defendant speculates that the witness struggles with mental health and substance abuse. However, Defendant has not demonstrated that G.C. has any condition that would affect her ability to know, comprehend, or relate to the truth. Defendant also has not established that G.C.'s purported mental health issues are relevant to the question of whether she can testify truthfully as to whether Defendant assaulted her as charged. Instead, Defendant's request appears to be an impermissible “fishing expedition.” Importantly, Defendant has the ability at trial to cross-examine G.C. and to call witnesses to provide opinion testimony regarding G.C.'s character for truthfulness or ...

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