United States v. Cutbank
| Decision Date | 17 June 2022 |
| Docket Number | 21-cr-268 (SRN/LIB) |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. Alexia Gah Gi Gay Mary Cutbank (1), Mia Faye Sumner (2), Defendants. |
| Court | U.S. District Court — District of Minnesota |
ORDER AND REPORT AND RECOMMENDATION
This matter comes before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636 and Local Rule 72.1, upon the parties' various Motions for the discovery and production of evidence, [Docket Nos. 53, 54 55, 56, 57, 76, 77, 78, 79, 80, 81, 82, 83, 84, 86, 89, 90 95, 96], Defendant Mia Faye Sumner's (“Defendant Sumner”) Motion to Suppress Statements, Admissions, and Answers, [Docket No. 58], as well as, Defendant Alexia Gah Gi Gay Mary Cutbank's (“Defendant Cutbank”) Motion to Suppress Evidence Obtained from Unlawful Search and Seizure. [Docket No. 87]. The Court held a Motions hearing on March 22, 2022, regarding the parties' pretrial motions.[1]
For the reasons discussed herein, Defendant Sumner's Motion for Disclosure of Rule 404 Evidence, [Docket No. 53]; Motion to Compel Attorney for the Government to Disclose Favorable Evidence, [Docket No. 54]; Motion for Discovery and Inspection, [Docket No. 55]; Motion to Retain Rough Notes [Docket No. 57], are GRANTED as set forth herein. Defendant Sumner's Motion for Disclosure of Early Jencks Act Material, [Docket No. 56]; Motion to Provide Grand Jury Testimony of Any Witness Who Will Testify at Suppression Hearing, [Docket No. 76], and Motion for Disclosure of Post Conspiracy Statements of Co-Defendants and Unindicted CoConspirators, [Docket No. 95], are DENIED as set forth herein.
Defendant Cutbank's Motion to Retain Rough Notes, [Docket No. 77]; Motion for Disclosure of 404(b) “Bad Acts” Evidence, [Docket No. 78]; Motion to Compel Production of Giglio Material, [Docket No. 79]; Motion for Release of Brady Materials, [Docket No. 80]; and Motion for Discovery and Inspection, [Docket No. 86], are GRANTED as set forth herein. Defendant Cutbank's Motion for Disclosure (Early) of Jencks Act Material, [Docket No. 81]; Motion to Sever, [Docket No. 82]; Motion for Disclosure of Grand Jury Transcripts, [Docket No. 83]; and Motion for Disclosure of Confidential Reliable Informant(s), [Docket No. 84] are DENIED as set forth herein.
Government's Motion for Discovery for Defendant Sumner, [Docket No. 89], and Government's Motion for Discovery for Defendant Cutbank, [Docket No. 90], are GRANTED as set forth herein.
Lastly, the Court recommends that Defendant Sumner's Motion to Suppress Statements, Admissions, and Answers, [Docket No. 58], be DENIED; and Defendant Cutbank's Motion to Suppress Evidence Obtained from Unlawful Search and Seizure, [Docket No. 87], be DENIED.
I. Background
Defendant Alexia Gah Gi Gay Mary Cutbank and Defendant Mia Faye Sumner are each charged with one (1) count of murder in the second degree in violation of 18 U.S.C. §§ 2, 1111, 1151, 1153(a), one (1) count of assault with a dangerous weapon in violation of 18 U.S.C. §§ 2, 113(a)(3), 1151, 1153(a), as well as, one count of assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 2, 113(a)(6), 1151, and 1153(a). (Indictment, [Docket No. 1]).
II. Defendant Sumner Motion for Disclosure of 404(b) Evidence, [Docket No. 53], and Defendant Cutbank's Motion for Disclosure of 404(b) “Bad Acts” Evidence. [Docket No. 78].
Defendant Sumner and Defendant Cutbank both seek disclosure of any “bad act” or “similar course of conduct” evidence that the Government intends to offer at trial pursuant to Federal Rule of Evidence 404(b). (See Def. Sumner's Mot. for Disclosure of 404(b) Evidence, [Docket No. 53]; Def. Cutbank's Mot. for Disclosure of 404(b) Evidence, [Docket No. 78]). Defendant Sumner seeks such disclosure “immediately,” while Defendant Cutbank seeks such disclosures at least four (4) weeks before trial. (Id.).
In its written response to both motions, acknowledging its obligation to comply with Rules 404(b), the Government has represented that it has previously disclosed Rule 404(b) evidence to the Defendants within its possession and will continue to comply with its obligations. (See Gov't's Consolidated Response to Defendants' Pretrial Motions, [Docket No. 93], at pp. 4-5). Although the Government noted that it was unaware of the extent of said evidence it would offer at trial, the Government has suggested that disclosures regarding Rule 404(b) evidence be made by no later than two (2) weeks before trial.
In relevant part, Rule 404(b)(3) provides that the Government must “provide reasonable notice of any” Rule 404(b) “evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it.” Fed.R.Evid. 404(b)(3)(A). In that notice, the Government must also “articulate . . . the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose.” Fed.R.Evid. 404(b)(3)(B).
Defendant Sumner and Defendant Cutbank's Motions for Disclosure of Rule 404(b) Evidence, [Docket Nos. 53, 78], are granted, as set forth herein. The Court orders the Government to disclose to the Defense as soon as practicable, and in no event later than twenty-one (21) days before trial, formal notice of any specific 404(b) evidence it intends to offer, as well as, the purpose for which it intends to offer it into evidence at trial.[2]
III. Defendant Sumner's Motion to Compel Attorney for the Government to Disclose Favorable Evidence, [Docket No. 54], Defendant Cutbank's Motion to Compel Production of Giglio Material, [Docket No. 79], and Defendant Cutbank's Motion for Release of Brady Materials. [Docket No. 80].
Defendant Sumner and Defendant Cutbank both seek disclosure of evidence favorable to them which would fall within the authority of Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and their progeny. (Def. Sumner's Mot. for Disclosure of Evid. Favorable to Def., [Docket No. 54]; Def. Cutbank's Mot. to Compel Production of Giglio Material, [Docket No. 79]; Def. Cutbank's Mot. to Compel Production of Brady Material, [Docket No. 80]). At the Motions Hearing regarding the present Motions, both Defendant Sumner and Defendant Cutbank requested that the Government's disclosure of favorable evidence be made by no later than fifteen (15) business days before trial.
The Government, acknowledging its duty to disclose responsive materials and information, represented that it has previously disclosed evidence favorable to Defendant Sumner and Defendant Cutbank within its possession and will continue to comply with its obligations under Brady, Giglio, and their progeny. (See Gov't's Consolidated Response to Defendants' Pretrial Motions, [Docket No. 93], at pp. 5-6). The Government suggested that disclosures regarding prior criminal records of the Government's witnesses or any promises or agreements between the Government and its witnesses be made seven (7) business days before trial. At the Motions Hearing, the Government suggested disclosure of materials responsive to Giglio and related to the impeachment of the Government's witnesses to be called at trial no later than seven (7) business days before trial.
The Government will disclose any and all remaining and/or subsequently discovered, obtained, or obtainable material responsive to Brady to the Defense as soon as said responsive materials are discovered by the Government.[3]
The Government will disclose materials which are responsive to Giglio and related to the impeachment of the Government's witnesses to be called at trial no later than seven (7) business days before trial, or when ordered by the trial judge to disclose trial witnesses, whichever is earlier.
IV. Defendant Sumner's Motion for Discovery and Inspection, [Docket No. 55], and Defendant Cutbank's Motion for Discovery and Inspection. [Docket No. 86].
Defendants Sumner and Cutbank seek disclosure of any written, recorded, or oral statements made by Defendants or copies thereof in the possession, custody, or control of the Government; the substance of any oral statements made by Defendants or co-defendants, whether before or after arrest, which the Government intends to offer in evidence at the trial; as well as, a copy of their criminal history. (Def. Sumner's Mot. for Discovery and Inspection, [Docket No. 55]; Def. Cutbank's Mot. for Discovery and Inspection, [Docket No. 86]).
Furthermore, Defendants both request permission to inspect and/or copy books, papers, documents, photographs, and tangible objects in the possession, custody, or control of the Government and which are material to the preparation of the defense or are intended for use by the Government as evidence in chief at the trial or were obtained from or belonged to Defendants. (Id.).
Defendants both also request permission to inspect and copy the results of any physical or mental examinations or scientific tests or experiments. Pursuant to Rule 16(a)(1)(G), Defendants request written summaries of any expert opinion the Government intends to use in its case-in-chief, including expert witnesses' qualifications and opinions, as well as, the basis for those opinions. Defendants do not suggest a proposed deadline by which the Government must produce disclosure regarding Rule 16(a)(1)(G), but at the Motions Hearing, Defendant Sumner and Defendant Cutbank requested that said expert disclosures be made by no later than forty-five (45) days before trial, and any rebuttal expert be disclosed fifteen (15) days before trial.
In its written response to Defendant Sumner and Defendant Cutbank's Motions, the Government asserted that it had already disclosed...
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