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