United States v. Eddings

• Decision Date: 12 November 2021
• Docket Number: 2:21-CR-141-CCW
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. KWAME EDDINGS, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

UNITED STATES OF AMERICA, Plaintiff,
v.
KWAME EDDINGS, Defendant.

No. 2:21-CR-141-CCW

United States District Court, W.D. Pennsylvania

November 12, 2021

MEMORANDUM ORDER ON DEFENDANT'S PRETRIAL MOTIONS

CHRISTY CRISWELL WIEGAND, UNITED STATES DISTRICT JUDGE

Defendant Kwame Eddings is charged by Superseding Indictment with possession with intent to distribute quantities of cocaine base, cocaine and a mixture containing heroin and fentanyl in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).

On October 4, 2021, Mr. Eddings filed multiple pretrial motions (the “Pretrial Motions”), which are now pending before the Court.^[1] See ECF Nos. 42, 44, 48, 50, 53, 55, 57 & 59. On October 19, 2021, the United States filed an Omnibus Response to Mr. Eddings' motions. ECF No. 62. On October 26, 2021, Mr. Eddings filed a Reply to the United States' Omnibus Response. See ECF No. 68. The Court held an evidentiary hearing on Mr. Eddings' Motion to Dismiss Fruits of Search - Warrant Illegally Executed, ECF No. 44, on November 9, 2021. ECF No. 74. Accordingly, Mr. Eddings' motions are now ripe for adjudication.

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I. Pretrial Motions Regarding Discovery

a. Mr. Eddings' Motion for Disclosure of Brady Materials (ECF Nos. 42 & 43)

Mr. Eddings' Motion for Disclosure of Brady Materials asserts that the United States possesses material impeachment, exculpatory, or otherwise favorable evidence that has not been disclosed to Mr. Eddings, and he therefore requests disclosure of specific listed information with respect to “any and all witnesses who will testify at trial.” ECF No. 42 ¶ 3.^[2]

The United States responds that this motion is premature because the United States is aware of its obligations and responsibilities under Brady v. Maryland, 373 U.S. 83 (1963), and intends to provide any Brady information that may exist (and has not already disclosed) at a time consistent with any pretrial order that this Court may impose. ECF No. 62 at 1.

In Brady, the Supreme Court held that due process requires the disclosure of “evidence favorable to an accused upon request . . . where the evidence is material either to guilt or to

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punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963). “Evidence which may be used to impeach the testimony of a government witness falls within the ambit of Brady when the credibility of the witness may have an effect on the jury's determination of guilt or innocence.” United States v. Beech, 307 F.R.D. 437, 441 (W.D. Pa. 2015) (Cercone, J.); see Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); see also United States v. Starusko, 729 F.2d 256, 260 (3d Cir. 1984). The prosecution has an obligation to disclose Brady material “in time for its effective use at trial.” Beech, 307 F.R.D. at 441-42 (citing United States v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983)). In this case, the prosecution has acknowledged its obligations and responsibilities with respect to Brady and its progeny and has agreed to comply with any pretrial order that this Court may impose. ECF No. 62 at 1. The Court has not yet set this case for trial, but will set a deadline for the disclosure of Brady/Giglio material in its pretrial order.

Accordingly, Mr. Eddings' Motion for Disclosure of Brady Materials is DENIED without prejudice as premature.

b. Mr. Eddings' Motion for Early Disclosure of Jencks Material (ECF Nos. 51 & 52)

Mr. Eddings' Motion for Early Disclosure of Jencks Material seeks an order requiring the United States to provide him, “not less than 14 days before trial of this case, [with] all written or oral statements commonly referred to as ‘Jencks' material.” ECF No. 52 ¶ 2. Mr. Eddings asserts that the Court in “its inherent supervisory powers[, ] has the authority to override the time provisions set forth in the [Jencks] Act and in Rule 26.2.” ECF No. 51 at 1-2.

The United States responds that this motion is premature, because disclosure of material pursuant to Rule 26.2 of the Federal Rules of Criminal Procedure and 18 U.S.C. § 3500, the Jencks Act, is required only after direct testimony is provided. However, the United States indicated that

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it “will voluntarily provide, disclosure of Jencks Act materials, as well as the witness criminal histories, sufficiently in advance of trial to ensure that unnecessary interruptions or delays are avoided.” ECF No. 62 at 3.

Under the Jencks Act, after a government witness has testified, and upon motion by the defendant, see 18 U.S.C. § 3500(a), the government must produce “any statement ... of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.” 18 U.S.C. § 3500(b); United States v. Weaver, 267 F.3d 231, 245 (3d Cir. 2001). “A plain reading of the [Jencks Act] demonstrates that there is no basis upon which the court can order the government to provide investigative statements as Jencks material prior to the time a witness has testified on direct examination at trial.” United States v. Portis, Crim. No. 2:19-1337, 2020 U.S. Dist. LEXIS 226975, at *5-6 (W.D. Pa. Dec. 3, 2020) (Horan, J.) (emphasis added); United States v. Maury, 695 F.3d 227, 248 (3d Cir. 2012).

Although Mr. Eddings asserts that Rule 26.2 does not contain “language explicitly precluding the disclosure of witness statements prior to trial, ” see ECF No. 51 at 2, Rule 26.2 does not alter “the delivery schedule of the Jencks Act.” See United States v. Litman, 547 F.Supp. 645 (W.D. Pa. 1982) (Cohill, J.) (stating that defendant's argument that Rule 26.2 altered the delivery schedule by “effectively repealing” the Jencks Act is “clearly erroneous”).

Nevertheless, the Third Circuit has recognized that “[d]espite [§ 3500(a)], many federal prosecutors routinely turn over Jencks material a few days before the witness testifies.” Maury, 695 F.3d at 248 n. 18. Because “[t]he government has no obligation to produce Jencks material until the witness has testified, ” Maury, 695 F.3d at 248, Mr. Eddings' Motion for Early Disclosure of Jencks Material is DENIED. However, the Court encourages, but does not compel, the United States to provide any material that falls within the ambit of the Jencks Act to Mr. Eddings

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sufficiently in advance of trial. Specifically, pursuant to the Court's typical pretrial order in criminal cases, the United States is encouraged to provide all Jencks Act materials prior to the final pretrial conference.

c. Mr. Eddings' Motion to Preserve Rough Notes (ECF Nos. 53 & 54)

Mr. Eddings' Motion to Preserve Rough Notes seeks an order that all rough notes by federal and state investigative/enforcement officers be preserved pending a determination as to whether they are discoverable. ECF No. 53 ¶ 2.

The United States responds that it has advised its agents regarding the preservation of the notes and writings of investigating agents and that such material will be disclosed to the extent it constitutes Brady/Giglio and/or Jencks material. ECF No. 62 at 3-4.

Independent of the United States' direction to its agents regarding the preservation of such material, the United States Court of Appeals for the Third Circuit requires the United States to retain rough notes and writings. United States v. Hanner, Crim No. 2:05-cr-385-2, 2007 U.S. Dist. LEXIS 11805, at *4 (W.D. Pa. Feb. 20, 2007) (McVerry, J.). In United States v. Vella, the Third Circuit held that “rough interview notes of [law enforcement officers] should be kept and produced so that the trial court can determine whether the notes should be made available to the defendant” under Brady v. Maryland or the Jencks Act. 562 F.2d 275, 276 (1977). In United States v. Ammar, the Third Circuit expanded the category of what must be retained to include draft reports. 714 F.2d 238, 259 (3d Cir. 1983). As such, “the government must retain ... both the rough notes and the drafts of reports of its agents to facilitate the district court's determination whether they should be produced.” Id.; United States v. Harris, Crim No. 2:19-cr-313, 2021 U.S. Dist. LEXIS 87629, at *3-6 (W.D. Pa. May 7, 2021) (Horan, J.).

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Mr. Eddings' Motion to Preserve Rough Notes is GRANTED. It is hereby ORDERED that all law enforcement officers and agents who investigated the charges contained in this case are to retain and preserve all rough notes and drafts of reports which are arguably discoverable by Mr. Eddings or subject to disclosure.

d. Mr. Eddings' Motion to Compel Government to Provide Mr. Eddings with Written Statement of Uncharged Misconduct Evidence and/or Federal Rule of Evidence 404(b) Evidence and For Pretrial Production of Such Evidence (ECF Nos. 59 & 60)

Mr. Eddings' Motion to Compel seeks an order requiring the United States to produce “a written statement of any uncharged misconduct evidence and/or Federal Rule of Evidence 404(b) evidence and [an] order [requiring] the Government to produce such evidence for inspection” by Mr. Eddings' counsel. ECF No. 59 at 2. Mr. Eddings contends that “waiting for trial for disclosure of [uncharged misconduct and/or evidence described in Rule 404(b)] will materially delay the trial” and the Court “should exercise its discretion and require the Government to disclose its intention to use any such evidence prior to trial.” ECF No. 60 at 1.

The United States responds that Mr. Eddings' Motion to Compel should be denied as premature and moot because the United States “intends to comply with Rule 404(b) by giving reasonable notice of its intent to use such evidence, ” and that the “the timing of such notice [will] be relative to an actual trial date in this case.” ECF No. 62 at 4. The United States also asserts that to the extent any prior conviction would be relevant, the United States “intends to comply with the written notice requirement within a reasonable time period” under Rule 609 and notes that Mr. Eddings has a...