United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING REMAINDER OF DEFENDANT
EDWIN MILLS'S MOTION TO COMPEL DISCOVERY (DKT. 552) AND
DEFENDANT CARLO WILSON'S SEALED MOTION FOR DISCOVERY
PURSUANT TO FEDERAL RULE OF CRIMINAL PROCEDURE 16 (DKT.
564)
MARK
A. GOLDSMITH, UNITED STATES DISTRICT JUDGE
This
criminal case involves multiple defendants, all of whom have
been charged with violating the Racketeering Influenced and
Corrupt Organizations Act (the “RICO” Act), 18
U.S.C. § 1961 et seq. Defendant Edwin Mills
filed a motion to compel discovery (Dkt. 552), [1] and Defendant
Carlo Wilson filed a sealed motion for discovery pursuant to
Federal Rule of Criminal Procedure 16 (Dkt. 564). The
Government filed a single response in opposition to these
motions (Dkt. 593), to which Mills and Wilson replied (Dkt.
648, 608, respectively).
On
February 12, 2019, the Court issued an order directing the
parties to confer in good faith to resolve any discovery
disputes raised in Defendants' motions. See
2/12/2019 Order at 4 (Dkt. 763). If the parties were unable
to resolve certain issues, the Court further ordered
Defendants to file a memorandum, detailing which precise
discovery issue necessitated the Court's intervention.
Id. at 5. After various stipulated extensions, Mills
and Wilson each filed a memorandum (Dkts. 821, 865,
respectively), to which the Government responded (Dkt.
921).[2]
A
hearing on Defendants' discovery motions was held on July
24, 2019. At the conclusion of the hearing, the Court
afforded Defendants the opportunity to file a joint statement
on or before July 26, 2019, outlining each remaining
discovery dispute that had not yet been resolved. The
Government could then file a response to that statement on or
before August 7, 2019. Defendants timely filed their joint
statement (Dkt. 1005). Because several issues could be
resolved without the Government's response to the joint
statement, the Court issued an opinion on July 30, 2019,
granting in part and denying in part Defendants'
discovery motions. United States v. Mills, No.
16-cr-20460, 2019 WL 3423318 (E.D. Mich. July 30, 2019). The
Court reserved ruling on certain discovery issues raised in
the joint statement until the Government filed its
supplemental response. The Government has since filed its
response (Dkt. 1037). For the reasons stated below, the Court
denies the remainder of Defendants' discovery motions.
I.
BACKGROUND
Because
the Court has previously described the factual and procedural
background of this case in greater detail in other opinions,
it need not do so again for purposes of the present motion.
See, e.g., United States v. Mills, 378
F.Supp.3d 563 (E.D. Mich. 2019) (denying motions to dismiss);
United States v. Mills, No. 16-cr-20460, 2019 WL
1915762 (E.D. Mich. Apr. 30, 2019) (denying motions for bills
of particulars); United States v. Mills, 367
F.Supp.3d 664 (E.D. Mich. 2019) (granting in part and denying
in part motion to preclude rap lyrics and videos).
II.
STANDARDS OF DECISION
In
contrast to the broad scope of discovery in civil cases, the
discovery available to a criminal defendant is relatively
constricted. For most criminal prosecutions, there are three
governing rules that “‘exhaust the universe of
discovery to which [a] defendant is entitled.'”
United States v. Watson, 787 F.Supp.2d 667, 672
(E.D. Mich. 2011) (quoting United States v. Presser,
844 F.2d 1275, 1285 n.12 (6th Cir. 1988)).
The
first is the Brady doctrine, derived from Brady
v. Maryland, 373 U.S. 83 (1962), which requires the
Government to disclose evidence that is favorable to the
accused and material to guilt or sentencing, as well as
evidence that could be used to impeach the credibility of a
government witness. Watson, 787 F.Supp.2d at 672
& n.5.
The
second is Federal Rule of Criminal Procedure 16(a), which
“requires the government to disclose, upon a
defendant's request, any oral or written statements of
the defendant, the defendant's prior record, any
documents or tangible evidence within the government's
possession, custody or control [that are material to the
defense or to be used in the Government's case-in-chief],
reports of examinations or tests, and a summary of any expert
witness testimony.” Watson, 787 F.Supp.2d at
672 (citation and quotation marks omitted); Presser,
844 F.2d at 1285 (“[D]iscovery afforded by Rule 16 is
limited to the evidence referred to in its express
provisions.”).
The
third is the Jencks Act, 18 U.S.C. § 3500, which
“‘generally requires the government, on motion of
a defendant, to produce statements in its possession of
witnesses who testify at trial.'” Watson,
787 F.Supp.2d at 672 (quoting United States v.
Short, 671 F.2d 178, 185 (6th Cir. 1982)); 18 U.S.C.
§ 3500(b);[3] see also United States v. Davis,
306 F.3d 398, 421 (6th Cir. 2002) (“When Brady
material sought by a defendant is covered by the Jencks Act .
. . the terms of that Act govern the timing of the
government's disclosure.”); Presser, 844
F.2d at 1282-1285 (holding that neither Brady,
Giglio v. United States, 405 U.S. 150 (1972), nor
Rule 16 gives a defendant the right to broad pretrial
discovery of impeachment evidence, the disclosure of which is
instead controlled by the Jencks Act).
III.
DISCUSSION
Defendants'
motions fall predominantly within the second category above,
as they each make numerous requests for discovery under Rule
16. The Court will address each of the 50 discovery items
Defendants have requested, which are outlined in a table
attached to their most recent joint statement. See
Discovery Table, Ex. A to Defs. Joint Statement (Dkt.
1005-1).
1.
Disclose all photographs taken by the Government's agents
during the defense's view of the evidence on June 7,
2017
The
Government claims to have already produced these photographs
on June 6, 2018. Gov't Supp. Resp. at 7. Based on the
Government's representation, this discovery request is
denied.
2.
Disclose any transcripts of any statements by Defendants to
be offered at any evidentiary hearing or at trial
The
Government claims that no such transcripts exist. Gov't
Supp. Resp. at 22. Based on the Government's
representation, this discovery request is denied.
3.
Disclose all records, including bench notes, of forensic
witnesses who have performed testing of any kind in this
case
The
Government argues that Defendants are not entitled to these
records under Federal Rules of Criminal Procedure 16(a)(1)(F)
and (G). Moreover, the Court already addressed the extent to
which Defendants are entitled to discovery under Rule
16(a)(1)(G), see Mills, 2019 WL 3423318, at *4
(ordering the Government to provide written summaries of any
expert testimony it intends to offer during its case-in-chief
on or before September 3, 2019), and the Government states
that it will comply with this Court's July 30, 2019,
opinion regarding expert witness testimony summaries,
Gov't Supp. Resp. at 20. Based on the Court's prior
opinion and the Government's representations, this
discovery request is denied.
4.
Disclose all notes or other memoranda reflecting any
conversation or communication with representatives of the
United States Attorney's Office, including but not
limited to city, county, state and federal law enforcement;
or any other representative from the federal government
concerning this case
The
Government argues that these internal government notes and
memoranda are not authorized for discovery or inspection
under Rule 16(a)(2). Gov't Supp. Resp. at 20. Defendants
have provided no authority to the contrary. Therefore, this
discovery request is denied.
5.
Produce copies of unredacted discovery
For the
reasons stated in the Court's July 30, 2019, opinion,
Mills, 2019 WL 3423318, at *5, this discovery
request is denied.
6.
Obtain and produce all Detroit Police Department records
related to the Troester Market homicide on December 1,
2015
The
Government claims to have already produced the requested
information, and it provided corresponding Bates Stamped
numbers and ranges associated with that discovery. Gov't
Supp. Resp. at 7. Based on the Government's
representations, this discovery request is denied.
7.
Either disclose Bate Stamp pages 85431 (missing from
85431-91601) and 93228 (missing from 93228-93238) or confirm
in writing that the pages do not exist
According
to the Government, Bates numbers 085431 and 093228 “ do
not exist as stated in a prior discovery index provided by
the government to defendants.” Gov't Supp. Resp. at
22.
Because
the Government has confirmed in writing that these pages do
not exist, an order requiring the same is no longer
necessary. This discovery request is denied.
8.
Disclose names and contact information for all persons who
called into the tip line, whether it was through Crime
Stoppers or any other tip line set up by federal, county, or
city police agencies, related to the Troester Market homicide
and all information provided as part of the tip
According
to the Government, all persons who contacted the tip line
remained anonymous. Gov't Supp. Resp. at 22.
Nevertheless, the Government states that its paralegal will
work with Defendants on reviewing Bates number 002455.
Id. Based on the Government's representations,
this discovery request is denied.
9.
Disclose mirror images of cell phones and tablets
For the
reasons stated in the Court's July 30, 2019, opinion,
Mills, 2019 WL 3423318, at *4, this discovery
request is denied.
10.
Disclose the names of any special employees or informants
that it has used with regard to the defendants and any
statements made by the informant or reports of interviews of
the informant
As the
Government correctly notes, the Court previously denied a
request to disclose informants' identities. United
States v. Mills, No. 16-cr-20460, 2019 WL 77034, at *3-5
(E.D. Mich. Jan. 2, 2019). Moreover, if any informants are
government witnesses, the Court has recognized that the
Government will disclose Jencks Act materials 30 days before
trial absent specific and concrete safety concerns for
particular witnesses. United States v. Mills, No.
16-cr-20460, 2019 WL 76868, at *2 n.6 (E.D. Mich. Jan. 2,
2019). Therefore, this discovery request is denied.
11.
Disclose the names and statements made by any unnamed or
uncharged co-conspirators not expected to be called at
trial
The
Government claims that it will finalize and disclose its
witness list on or before December 6, 2019, pursuant to the
Court's scheduling order. Gov't Supp. Resp. at 16
(citing 8/31/2018 Order at 3 (Dkt. 475)). The Government
further states that it has already disclosed the names and
information of co-conspirators pursuant to Rule 16(a)(1)(E).
Id. at 16-17. And if any non-witness possesses
Brady information, the Government avows to disclose
the names and statements 60 days before trial pursuant to the
Court's opinion regarding disclosure of Brady
information. Id. at 16; see also United States
v. Mills, No. 16-cr-20460, 2019 WL 549171, at *3-4 (E.D.
Mich. Feb. 12, 2019). Based on the Court's prior opinion
and the Government's representations, this discovery
request is denied.
12.
State with specificity which “302” is connected
to Digital 1A and identify ...