United States v. Newman
| Decision Date | 10 December 2020 |
| Docket Number | No. 3:19-CR-59-TAV-DCP,3:19-CR-59-TAV-DCP |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. DAVID NEWMAN, Defendants. |
| Court | U.S. District Court — Eastern District of Tennessee |
All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for disposition or report and recommendation regarding disposition by the District Court as may be appropriate. The parties appeared for a motion hearing on July 13, 2020, on the following motions by Defendant, all filed on January 17, 2020:
Assistant United States Attorneys Anne-Marie Svolto and Louis Manzo appeared on behalf of the Government. Attorneys Robert R. Kurtz and Wesley D. Stone represented Defendant David Newman, who was also present. After hearing the arguments of counsel, the Court took the motions under advisement. The Court requested supplemental briefing on the motion for disclosure of confidential informants [Doc. 22]. The parties filed supplemental briefs [Docs. 83 & 84] on October 16, 2020.
Defendant requests that the Court order the Government to provide, at least thirty (30) days prior to trial, a written notice of all evidence of other crimes, wrongs, or acts, falling under Rule 404(b) of the Federal Rules of Evidence, that the Government intends to introduce at trial. Defendant asserts such an order is necessary to give time to object to this evidence's admissibility, as well as to adequately prepare to defend against it. Along with this request, Defendant further moves for a hearing on the admissibility of this evidence to be conducted, outside the presence of the jury, before it is introduced by the Government.
The Government's response [Doc. 29] points out that the Court's Order on Discovery and Scheduling [Doc. 6] directs the Government to provide notice of the general nature of the 404(b) evidence seven (7) days prior to trial. At the time responses to this motion were filed on January 31, 2020, the Government was unaware of any 404(b) evidence it would use at trial [Doc. 6]. While the Government objects to giving earlier notice [Doc. 29], it states that it will comply with the Court's Order on Discovery and Scheduling [Doc. 6].
Rule 404(b) of the Federal Rules of Evidence provides that upon a defendant's request, the Government must "provide reasonable notice of any such 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). The notice must be in writing and must state the purpose for which the Government intends to use this evidence and the reason the evidence is permitted under the Rule. Fed. R. Evid. 404(b)(3)(B)-(C). The Court's Order on Discovery and Scheduling, filed on April 17, 2019 [Doc. 6 at ¶ I]1, explains "reasonable notice" under Rule 404(b) is to be seven (7) calendar days before trial unless the Court orders otherwise. Here, Defendant has failed to provide a compelling need for earlier disclosure. Therefore, the Court finds no reason to disturb the seven-day time frame, as previously provided in the Order on Discovery and Scheduling [Doc. 6] exists.
Defendant also requests an off-the-record, jury-out hearing before the introduction of any Rule 404(b) evidence to determine whether the probative value of this evidence substantially outweighs its prejudicial effect. The Government submits that it is not aware of any 404(b) evidence at this time. If the Government learns of any 404(b) evidence, it will be required to provide notice before trial. Defendant's request for a pretrial hearing is more properly made to the District Judge, if any 404(b) evidence will be at issue in this case.
Accordingly, Defendant's Motion for Pretrial Notice of Government's Intent to Use Rule 404(b) Evidence [Doc. 15] is DENIED, with the issue of the need for a jury-out hearing being subject to renewal with the District Judge at or before trial.
Defendant further requests the Government provide a witness list at least thirty (30) days prior to Defendant's trial date, which is set for May 4, 2021 [Doc.16]. Defendant argues that because the Government has hundreds of potential witnesses, the charges cover a time period of forty (40) months, and the law and facts of the case are abnormally complex, additional time is needed to adequately prepare a defense [Doc.16]. Defendant points out that, if granted, the provision of a witness list will not prejudice either the Government, or its witnesses, because Defendant has no history of violent behavior and does not pose a threat to any potential witness.
Conversely, the Government strongly opposes granting this motion, because such disclosure is not required by Rule 16 of the Federal Rules of Criminal Procedure, which lays out the extent of the discovery that the Government must provide [Doc. 32]. The Government cites the United States Congress's rejection of attempts to amend Rule 16 to compel disclosure of witnesses [Doc. 32]. The Government asserts that Defendant must establish a particular need for pretrial notice of its witnesses and that the need to prepare for cross-examination is not a sufficient basis to require a witness list. The Government argues that the Powell factors weigh against disclosure. See United States v. Powell, No. 12-20246, 2012 WL 6096600, *6 (E.D. Mich. Dec. 7, 2012). These factors include: (1) whether disclosure of a witness list would expedite the trial and facilitate docket control, (2) whether disclosure would cause a security issue for the witnesses, and (3) the amount of time a defendant has already had to research potential witnesses and prepare for investigation. Another consideration is whether the Government previously turned over information with the identities of the Government's witnesses. Finally, while the Government agrees to provide the required Jencks Act material the Friday before trial, it argues that Defendanthas possessed the discovery for long enough to identify witnesses, because the discovery is clearly organized.2
Generally, the Court will not require the government to disclose the names of its witnesses before trial. See United States v. Perkins, 994 F.2d 1184, 1190 (6th Cir.), cert. denied, 510 U.S. 903 (1993); United States v. McCullah, 745 F.2d 350, 353 (6th Cir. 1984); see also United States v. Turner, 91 F. App'x 489, 491 (6th Cir. 2004) (). But see Roviaro v. United States, 353 U.S. 53, 60-64 (1957) (). Nonetheless, this general rule is limited by the Government's Brady obligations to provide Defendant with information that is favorable to his defense and material to either guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). If it fails to provide Brady materials in a timely fashion, the Government "acts at its own peril." United States v. Presser, 844 F.2d 1275, 1281 (6th Cir. 1988).
Even so, the Court has discretion to order the Government to produce a witness list, pursuant to its inherent powers. United States v. Kendricks, 623 F.2d 1165, 1168 (6th Cir. 1980); Presser, 844 F.2d at 1285 n.12 (); see also Powell, 2012 WL 6096600, at *6 ().
As a general matter, courts weigh the interests of a defendant in receiving the witness list against the government's countervailing interest in keeping the witness information undisclosed. In balancing these interests, courts have considered the following factors: (i) whether disclosure of the witness list would expedite trial and facilitate docket control, see United States v. Jackson, 508 F.2d1001, 1007 (7th Cir. 1975); (ii) whether disclosure would cause a security issue for the government witnesses, see United States v. Watson, 787 F.Supp.2d 667, 674-675 (E.D. Mich. 2011); (iii) the amount of time the defendant already had to research potential witnesses and prepare for investigation, see United States v. Williams, No. 06-CR-20411, 2010 WL 272082, at *2 (E.D. Mich. Jan. 15, 2010); and (iv) whether the government previously turned over information with the identities of government witnesses. See Watson, 787 F. Supp. 2d at 674.
Powell, 2012 WL 6096600, at *6. When considering the present matter, the Court finds that it should exercise its discretion to order parties to disclose their witnesses significantly in advance of trial only in the rare and unusual case. Here, we have no such case. Instead, the Court finds the factors enumerated in Powell do not weigh in favor of disclosure, even under the somewhat unique circumstances of this case.
Powell's first factor examines whether disclosure of the Government's witnesses would expedite the trial. The Court's Order on Discovery and Scheduling [Doc. 6, ¶O] encourages the Government to disclose Jencks Act materials pretrial in...
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