United States v. Kontz
| Decision Date | 13 September 2018 |
| Docket Number | Case No. 18-cr-125 (DSD/TNL) |
| Parties | United States of America, Plaintiff, v. Ronald Lee Kontz, Defendant. |
| Court | U.S. District Court — District of Minnesota |
Nathan Hoye Nelson, Assistant United States Attorney, United States Attorney's Office, 300 South Fourth Street, Suite 600, Minneapolis, MN 55415 (for the Government); and
Ryan M. Pacyga, Pacyga and Associates, PA, 333 South Seventh Street, Suite 2850, Minneapolis, MN 55402 (for Defendant).
This matter is before the Court, United States Magistrate Judge Tony N. Leung, on the following Motions:
A hearing was held on August 14, 2018. Assistant United States Attorney Nathan Hoye Nelson appeared on behalf of the United States of America (the "Government"). Attorney Ryan M. Pacyga appeared on behalf of Defendant.
Based upon the record, memoranda, and oral arguments of counsel, IT IS HEREBY ORDERED as follows:
1. The Government's Motion for Discovery Pursuant to Federal Rules of Criminal Procedure 16(b), 12.1, 12.2, 12.3, and 26.2 (ECF No. 30) is GRANTED. The motion seeks discovery available under Federal Rules of Criminal Procedure 12.1, 12.2, 12.3, 16(b), and 26.2. At the hearing, Defendant had no objection to the Government's motion. No later than three weeks prior to trial, the parties shall make their respective expert disclosures. See infra ¶ 9.
2. Defendant's Pretrial Motion for Disclosure of 404 Evidence (ECF No. 17) is GRANTED IN PART and DENIED IN PART. Defendant requests that the Government "immediately disclose any 'bad act' or 'similar course of conduct' evidenceit intends to offer at trial pursuant to Rule 404 of the Federal Rules of Evidence and . . . to identify the witnesses through whom such evidence will be presented at trial." Defendant also anticipates filing a motion in limine regarding Rule 404(b) evidence and asserts that immediate disclosure of such evidence would "facilitate an orderly trial and allow [D]efendant the opportunity to timely seek exclusion of such . . . evidence."
The Government states that it is aware of its obligations under Fed. R. Evid. 404, and intends to comply fully with those obligations. (Gov't's Consolidated Resp. at 1, ECF No. 32.) As reiterated at the hearing, the Government "does not know whether it will use any such evidence at trial." (Gov't's Consolidated Resp. at 2.) The Government objects, however, to Defendant's request that notice be given immediately and to the extent Defendant seeks disclosure of "acts that are 'intrinsic' to the charged offense[s]." (Gov't's Consolidated Resp. at 1-2.) The Government initially proposed notifying Defendant of any extrinsic Rule 404(b) evidence that it intends to use no later than two weeks before trial. At the hearing, the parties agreed to disclosure three weeks prior to trial.
Rule 404(b) requires the Government to provide reasonable notice before trial when evidence of a crime, wrong, or other act will be used to "prov[e] motive opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed. R. Evid. 404(b)(2). "Rule 404(b) . . . applies to the admission of wrongful-act evidence that is extrinsic to the charged offense." United States v. Ruiz-Chavez, 612 F.3d 983, 988 (8th Cir. 2010). It does not apply to intrinsic evidence. Id.; see also United States v. Beltz, 385 F.3d 1158, 1162 (8th Cir. 2004) (). "Evidence of other wrongful conduct is considered intrinsic when it is offered for the purpose of providing the context in which the charged crime occurred." Ruiz-Chavez, 612 F.3d at 988 (quotation omitted).
Moreover, Rule 404(b) does not require that the Government "disclose directly or indirectly the names and addresses of its witnesses, something it is currently not required to do under [Fed. R. Crim. P.] 16." Fed. R. Evid. 404(b) advisory committee's notes, 1991 Amendments; see United States v. Polk, 715 F.3d 238, 249 (8th Cir. 2013); United States v. Hamilton, 452 F.2d 472, 479 (8th Cir. 1971); see also United States v. Miller, 698 F.3d 699, 704 (8th Cir. 2012) ().
Therefore, no later than three weeks prior to trial, the Government shall provide "reasonable notice" of all "extrinsic" evidence then known to the Government that the Government intends to offer within the purview of Fed. R. Evid. 404(b), but need not identify the witnesses through whom it will present any such evidence. If the Government subsequently discovers additional extrinsic evidence, it shall provide reasonable notice of such evidence as soon as practicable after such discovery.
3. Defendant's Motion for Government Agents to Retain Rough Notes (ECF No. 19) is GRANTED. Defendant requests "an order requiring any law enforcement agent . . . to retain and preserve all rough notes taken as part of their investigation, whether or not the contents of such rough notes are incorporated into official records." The Government has no objection to the retention of rough notes. (Gov't's ConsolidatedResp. at 3.) To the extent it has not already done so, the Government shall direct its agents to preserve any rough notes pertaining to this matter.
4. Defendant's Motion to Compel Attorney for the Government to Disclose Evidence Favorable to Defendant (ECF No. 21) and Motion for Discovery of Impeaching Information and Exculpatory Evidence (ECF No. 25) are GRANTED IN PART and DENIED IN PART. Defendant seeks disclosure of evidence favorable to him under Brady v. Maryland, 373 U.S. 83 (1963); Miller v. Pate, 386 U.S. 1 (1967); Giles v. Maryland, 386 U.S. 66 (1967); Giglio v. United States, 405 U.S. 150 (1972); Moore v. Illinois, 408 U.S. 786 (1972); and their progeny. Defendant also seeks information regarding Government witnesses, both testifying and non-testifying.
The Government acknowledges its obligations under Brady, Giglio, and their progeny and objects to Defendant's motion to the extent the materials sought go beyond the requirements of these authorities.
"The [Supreme] Court has extended Brady protection to witness-credibility evidence when the reliability of the witness 'may well be determinative of guilt or innocence.'" United States v. Sigillito, 759 F.3d 913, 930 (8th Cir. 2014) (quoting Giglio, 405 U.S. at 154); see also United States v. Whitehill, 532 F.3d 746, 753 (8th Cir. 2008) . "One reason for this extension to witness-credibility evidence is because exposure of a witness's motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Sigillito, 759 F.3d at 930 (quotation omitted). TheEighth Circuit Court of Appeals "ha[s] determined that witness motivations, like the payment of money as an incentive to change testimony, fall within the Brady disclosure requirement." Id. (citing United States v. Librach, 520 F.2d 550, 554 (8th Cir. 1975)). "Furthermore, the prosecutor must disclose the possibility of a reward that gives the witness a personal stake in the defendant's conviction." Id. (citing United States v. Bagley, 473 U.S. 667, 683 (1985)).
Nevertheless, "[a] federal criminal defendant generally has no right to know about government witnesses prior to trial." Polk, 715 F.3d at 249 (quotation omitted); see Hamilton, 452 F.2d at 479 ; United States v. Wisman, No. 4:06CR0036 DJS/TCM, 2006 WL 587601, at *2 (E.D. Mo. March 9, 2006) (). To the extent that Defendant seeks the statements of testifying witnesses, the production of any such statements fall within the purview of the Jencks Act, which the Government has agreed to produce no later than three days prior to trial. See infra ¶ 6.
Defendant's motions are granted in part to the extent that the Government shall comply fully with its obligations under Brady, Giglio, and their progeny and disclose all exculpatory and impeachment evidence as well as Jencks Act materials. To the extent that Defendant's motions seek discovery and disclosures outside the Government's obligations under these authorities or seek materials that have already been produced,they are denied. See United States v. Johnson, 228 F.3d 920, 924 (8th Cir. 2000) (). To the extent Defendant seeks the statements...
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