United States v. Mills

          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 ...