U.S. v. Jacobs
| Decision Date | 31 August 2009 |
| Docket Number | No. 3:08-cr-211-(1)(CSH).,3:08-cr-211-(1)(CSH). |
| Citation | 650 F.Supp.2d 160 |
| Court | U.S. District Court — District of Connecticut |
| Parties | UNITED STATES of America v. Dwayne JACOBS, a.k.a. "Stretch,", Defendant. |
Christopher M. Mattei, Robert M. Spector, U.S. Attorney's Office, New Haven, CT, Nora R. Dannehy, U.S. Attorney's Office, Hartford, CT, for Plaintiff.
This case comes before the Court upon eleven pretrial motions filed by defendant Dwayne Jacobs ("Jacobs"), all of which relate to the preservation, discovery, or disclosure of materials sought for the purpose of assisting in Jacobs's defense. The Court has examined those motions and the government's response and determined that these motions do not require oral argument.
Jacobs is charged with two drug-related criminal counts. Count One charges him with conspiracy to possess with intent to distribute and to distribute five grams or more of a mixture or substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), & 846. Count Two charges him with possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(C).
Jacobs was arrested and presented on these charges on November 4, 2008. On March 18, 2009, the government filed notice of its intent to rely on a prior conviction that subjects the defendant to the enhanced sentencing provisions of 21 U.S.C. § 841(b).
Jacobs originally had a co-defendant, Keisha Rhodes. On June 4, 2009, defendant Rhodes entered guilty pleas on four counts, including Count One (the conspiracy count) and three separate counts that did not name Jacobs as a defendant.
In a Scheduling Order dated May 1, 2009 [doc. # 51], this Court set jury selection to begin on September 22, 2009, with trial to commence immediately thereafter.
In criminal prosecutions, the government must produce "evidence favorable to an accused ... where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This obligation also includes evidence that can be used to impeach a government witness. Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). "Brady does not, however, require the prosecution to disclose all exculpatory and impeachment material; it need disclose only material `that, if suppressed, would deprive the defendant of a fair trial.'" United States v. Coppa, 267 F.3d 132, 135 (2d Cir.2001) (emphasis in Coppa) (quoting United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). The prosecutor's disclosure obligations "extend[] only to material evidence ... that is known to the prosecutor." United States v. Avellino, 136 F.3d 249, 255 (2d Cir.1998).
A prosecutor is presumed to know all information gathered by his office in connection with an investigation of the case. Id. Further, a prosecutor "has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case." Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).1
The prosecutor has a duty to discover Brady material because "the prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of `reasonable probability' [of materiality] is reached." Kyles, 514 U.S. at 437, 115 S.Ct. 1555. It follows that "[a]lthough the Court retains discretion to order additional pre-trial disclosures," as a general principle "the responsibility for assessing whether evidence must be disclosed under Brady and Giglio rests with the government." United States v. Stora Enso N. Am. Corp., No. 3:06-cr-323(CFD), 2007 WL 1630366, *2 (D.Conn. June 5, 2007) (Droney, J.); see also United States v. Ferguson, 478 F.Supp.2d 220, 242 (D.Conn.2007) (Droney, J.) ().
As for the timing of the disclosures required by Brady, "material" exculpatory and impeachment information must be disclosed "no later than the point at which a reasonable probability will exist that the outcome would have been different if an earlier disclosure had been made." Coppa, 267 F.3d at 142 (citing Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir.2001)). "[W]e have never interpreted due process of law as requiring more than that Brady material must be disclosed in time for its effective use at trial...." 267 F.3d at 142. However, this District's local rules create a more urgent disclosure obligation. See Standing Order on Discovery, D. Conn. Local R.Crim. P. app. ¶ (A)(11) (). As Judge Arterton explained several years ago, United States v. Perez, 222 F.Supp.2d 164, 171 (D.Conn. 2002) (footnote omitted).
Jacobs's motions under Brady and Giglio appear to be standardized and formulaic requests for every possible type of information that might assist in his defense. Neither of the two motions nor their supporting memoranda describe any special circumstances in this case triggering Brady and Giglio obligations, with the possible exception that both motions contemplate the existence of a cooperating witness.
In his motion captioned under Brady, Jacobs asks the Court to order disclosure of twenty-two categories of materials that he argues should fall under the Brady disclosure obligations.
The government has represented that it has made the following disclosures:
In compliance with the Standing Order, the Government made five different discovery disclosures to the defendant in this case on November 4, 2008, November 12, 2008, December 2, 2008, April 24, 2009 and June 23, 2009. Included in this discovery material was a full set of the audio and video surveillance recorded in connection with the investigation of the defendant, all of the investigative reports created to date in the investigation, all of the laboratory reports received to date related to the seized narcotics in the case, and all of the affidavits related to the arrest and search warrants issued in this case. Also included in these packets were detailed discovery letters summarizing the discovery material provided and responding to each of the items enumerated in the Standing Order.
Further, as of the date of this pleading, the Government has informed the defendant of the name and identifying information of a cooperating defendant/witness who is going to testify against the defendant. Further, upon the filing of this pleading, the Government will provide the defendant with the witness's plea agreement, cooperation agreement and criminal history.
Government's Omnibus Resp. to Def. Dwayne Jacobs's Pretrial Motions [doc. # 97] at 1-2 (footnote omitted) [hereinafter "Gov't Resp."].
The defense motion captioned under Giglio requests four broad categories of disclosures, including one broad request for a "list of all `bad acts' allegedly committed by the actual/potential Government witnesses, their families or friends, involving the following subject matter(s), or in exchange for which the actual/potential Government witnesses, their families or friends received the following...." Def.'s Mot. [doc. # 74] at 1. The motion then lists seventeen subcategories of "subject matter" or things of value that the government might theoretically have conveyed to its potential witnesses or their family or friends, such as "[i]mmunity from prosecution," "[a] new identity," or "[a] promise of help or favorable recommendation to probation or parole authorities." Id. at 2. In response to that motion, the government made the following representation:
The Government has fully and completely complied with the Standing Order, which explicitly requires the disclosure of [materials subject to Brady requirements].... As with Brady, the Government is well aware of its duties and responsibilities with respect to the disclosure of Giglio material and has fulfilled its obligations in that regard. If, at any time, the Government learns of any additional Giglio material not already disclosed, it will disclose such material immediately. At present, there is one cooperating defendant/witness who will testify against the defendant at trial. As to that witness, upon the filing of this pleading, the Government will provide the defendant with the witness's plea agreement, cooperation agreement and criminal history. Further, the materials already disclosed to the defendant contain statements made by the cooperating witness concerning her role in the conspiracy. Finally, as soon as a report of the Government's interview with the cooperating witness is prepared, it will be disclosed to the defendant.
Gov't Resp. [doc. # 97] at 2-3 (emphasis added).
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