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United States v. Beavers

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

August 28, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
D - 1 DAMARLIN MARKEEL BEAVERS, D - 6 MICHAEL ALLEN PRATT, JR., D - 10 TERENCE JAEMAR JOHNSON, D - 11 LAMAR TERRELL SIMON, D - 14 KENDRELL STEPHENS, D - 15 CALVIN EARL MCREYNOLDS, JR., D - 17 DEMAYNE JAMES MCKINNEY, Defendants.

          ORDER DENYING MOTIONS TO COMPEL ADDITIONAL DISCOVERY, MOTION TO EXCLUDE EXPERT TESTIMONY, AND MOTION TO PRESERVE RIGHT TO FILE MOTIONS IN LIMINE

          Honorable Thomas L. Ludington, Judge

         On October 12, 2016, an indictment was returned which charged thirteen Defendants with participating in a large-scale conspiracy to possess and distribute controlled substances. ECF No. 16. On April 12, 2017, a first superseding indictment was returned which named five additional Defendants. ECF No. 183. In the First Superseding Indictment, the Government alleges that the eighteen individuals “knowingly conspired and agreed together . . . to possess with intent to distribute and to distribute controlled substances.” Sup. Indict. at 2-3, ECF No.

         183. Specifically, the Government contends that the Defendants possessed and distributed cocaine and heroin. Id. at 3. In total, the Government has charged thirty specific counts, all related to the possession or distribution of controlled substances. Of the eighteen Defendants, eleven have pleaded guilty or have begun the process of doing so. Charges are currently pending against the remaining seven Defendants.

         Currently, trial is set for September 26, 2017, at 8:30 a.m. At the motion deadline, Defendant Beavers filed a motion to suppress the wiretap evidence, and Defendant McReynolds, Jr., filed a motion for a separate trial and a motion for discovery. ECF Nos. 303, 304, 305. Two days after the motion deadline, Defendant Simon filed seven motions. ECF Nos. 307, 308, 309, 310, 311, 312, 313.[1] Most of Simon's motions request pretrial disclosures from the Government, especially of the Government's witnesses and of information that Simon may use to impeach witnesses at trial. Simon is also requesting a separate trial. ECF No. 311. A motion hearing on all pending motions is currently scheduled for September 11, 2017, at 2:00 p.m. However, several of the motions, especially those framing discovery and evidentiary issues, are either meritless or premature. It would be inefficient to devote time to those motions at the hearing. For the following reasons, several of the pending motions will be denied.

         I.

         Most of Defendant Simon's motions (and Defendant McReynolds's request for additional discovery) seek information and documents which the Government does not yet (and may never) have an obligation to produce. Defendant Simon also makes several attempts to either prospectively limit the Government from introducing certain evidence or “preserve” his right to make such challenges in the future. Most of the relief Simon seeks in his motions is independently protected by law and thus a supplemental order from this Court confirming the Government's discovery obligations would be redundant. Simon has not identified any instances where the Government did not comply with its extant obligations. And, to the extent Simon may wish to challenge evidence that the Governments intends to submit at trial, the proper time for the challenge is when the evidence in question has been specifically identified. Simon's motions will be addressed in turn.

         A.

         McReynolds's request for additional discovery, Simon's motion for production of impeachment evidence, and Simon's motion for the Government's witness list are all either premature or meritless. McReynolds requests the following: all information the Government is required to produce under Federal Rule of Civil Procedure 16(a)(1), all exculpatory evidence in the Government's possession, all documents that Government may use to refresh the memory of a witness during trial, all relevant statements by persons with knowledge of the case, all Jencks Act materials, all information regarding chain of custody of Government exhibits, Federal Rule of Evidence 404(b) evidence, all evidence that could be used to impeach Government witnesses, the identity of all confidential informants the Government utilized during its investigation, and other similarly broad requests. ECF No. 304.

         McReynolds's request for additional discovery will be denied in full, but without prejudice. To the extent McReynolds seeks discovery that the Government is obligated to provide under Rule 16, Brady, Giglio, or the Jencks Act, he has not indicated that the Government has failed to meet its discovery obligations. Importantly, many of the discovery obligations which McReynolds identifies are not triggered until after a witness testifies at trial. See Federal Rule of Criminal Procedure 26.2(a) (“After a witness . . . has testified on direct examination, the court . . . must order an attorney for the government . . . to produce . . . any statement of the witness that is in their possession.”); Jencks Act, 18 U.S.C § 3500(e)(3) (“After a witness called by the United States has testified on direct examination, the court shall . . . order the United States to produce any statement . . . of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.”).

         The Government contends that it has already provided all discovery which it is obligated to produce at this time. McReynolds does not contest that assertion. Absent some indication that the Government has not complied with its discovery obligations, no intervention by the Court is necessary. And, likewise, the Court declines to impose new and additional discovery obligations on the Government beyond those which already exist. McReynolds's request for additional discovery will be denied. If, at any point in the future, McReynolds believes that the Government has not disclosed discovery which it is required to, he may renew his motion.

         Defendant Simon requests the Court order the Government to provide its witness list and additionally requests that the Government produce “all evidence that would be admissible to attack the credibility of non-testifying co-conspirator declarants.” Mot. Imp. Evid. At 1, ECF No. 309. For similar reasons, these motions will also be denied.

         First, Simon seeks disclosure of the Government's witness list, relying upon the Court's “inherent power . . . to promote proper administration of criminal justice.” Mot. Witness List at 1, ECF No. 313. But courts have uniformly held that neither Brady, the Jencks Act, nor Rule 16 require the Government to produce its witness list in advance of trial. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (“It does not follow from the prohibition against concealing evidence favorable to the accused that the prosecution must reveal before trial the names of all witnesses who will testify unfavorably.”); 18 U.S.C § 3500(e)(3); United States v. Perkins, 994 F.2d 1184, 1190 (6th Cir. 1993). Undoubtedly, pretrial disclosure of the witness list would promote a speedy resolution of the trial. But such disclosure is not required. At this stage, several weeks before trial, the Government may not yet have finalized the witness list. Certain witnesses may be called only if specific Defendants proceed to trial. The Government's desire to protect potential witnesses from having their identity unnecessarily disclosed is reasonable. Further, the Scheduling Order in this matter directs both parties to submit their witness list and exhibit list one week before trial. That deadline is sufficient to ensure adequate time for counsel to prepare while also protecting against unnecessary disclosures. Simon's motion for the witness list will be denied.

         Likewise, Simon's request for “all evidence that would be admissible to attack the credibility of non-testifying co-conspirator declarants” will be denied. Mot. Imp. Evid. at. 1. Simon premises his request on Federal Rule of Evidence 806 and the Government's obligations under Brady. Rule 806 governs the admissibility of impeachment evidence a party wishes to use to undermine a hearsay statement. As such, Rule 806 provides no authority for Simon's request for pretrial disclosure of this impeachment evidence. Simon references Brady, but Brady material need only be disclosed “in time for effective use at trial.” United States v. Presser, 844 F.2d 1275, 1286 (6th Cir. 1988). More importantly, Brady does not require disclosure of “‘any and all impeachment evidence'” because there is no “constitutional right to know the tactical strengths and weaknesses of the government's case.” Id.

         In short, Simon has not established his entitlement to the information sought. To the extent the information sought might fall under one of the Government's other discovery obligations, Simon has provided no indication that the Government has not complied with those obligations. ...


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