United States v. Strong

• Decision Date: 21 July 2021
• Docket Number: 21-cr-80 (SRN/LIB)
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. George Roy Strong, Defendant.
• Court: U.S. District Court — District of Minnesota

UNITED STATES OF AMERICA, Plaintiff,
v.
George Roy Strong, Defendant.

No. 21-cr-80 (SRN/LIB)

United States District Court, D. Minnesota

July 21, 2021

ORDER AND REPORT AND RECOMMENDATION

HON. LEO I. BRISBOIS, U.S. MAGISTRATE JUDGE

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 Defendant George Roy Strong's (“Defendant”) various Motions for the discovery and production of evidence, [Docket Nos. 24, 25, 26, 27], as well as, Defendant's Motion to Dismiss Indictment, [Docket No. 28]; his Motion to Suppress Statements, [Docket No. 29]; and his Motion to Suppress Searches and Seizures. [Docket No. 30]. The Court held a Motions Hearing on June 22, 2021, regarding the parties' pretrial motions.^[1]

For the reasons discussed herein, Defendant's Motion for Discovery and Inspection, [Docket No. 24]; his Motion to Compel Attorney for the Government to Disclose Favorable Evidence, [Docket No. 25]; and his Motion for Government Agents to Retain Rough Notes, [Docket No. 27], are GRANTED. Defendant's Motion for Pretrial Disclosure of Jencks Act Materials, [Docket No. 26], is DENIED.

Further, it is recommended that Defendant's Motion to Dismiss, [Docket No. 28], be DENIED; Defendant's Motion to Suppress Statements, [Docket No. 29], be GRANTED; and

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Defendant's Motion to Suppress Searches and Seizures, [Docket No. 30], be DENIED without prejudice.

I. Background

Defendant is charged with two (2) counts of assault resulting in serious bodily injury in violation of 18 U.S.C. § 113(a)(6), 1151, and 1153(a). (Indictment [Docket No. 1]).

II. Defendant's Motion for Discovery and Inspection. [Docket No. 24].

Defendant seeks disclosure of any written, recorded, or oral statements made by Defendant or copies thereof in the possession, custody, or control of the Government, including the body camera video of Defendant's arrest; the substance of any oral statements made by the Defendant, whether before or after arrest, which the Government intends to offer into evidence at the trial; and a copy of Defendant's prior criminal record which is known, or by the exercise of due diligence may become known, to the Government. (See, Def.'s Mot. for Discovery and Inspection [Docket No. 24]). Furthermore, Defendant requests 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 the Defendant.

Defendant also requests permission to inspect and copy the results of any physical or mental examinations or scientific tests or experiments, or computer forensic examinations. Pursuant to Rule 16(a)(1)(G), Defendant requests 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.

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Defendant's Motion for Discovery and Inspection, [Docket No. 24], is granted as to any subsequently acquired materials or information which are specifically responsive to Rule 16, which shall be disclosed to the Defense as soon as said responsive materials are discovered by the Government and in any event no later than fourteen (14) days before trial, except with respect to expert disclosures and forensic reports which shall be made as soon as practicable and in any event no later than thirty (30) days before trial.^[2]

III. Defendant's Motion to Compel Attorney for the Government to Disclose Favorable Evidence. [Docket No. 25].

Defendant seeks disclosure of evidence favorable to him 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. (See, Def.'s Mot. to Compel Attorney for the Gov't to Disclose Evid. Favorable to the Def. [Docket No. 25]).

In its written response, the Government acknowledged its duty to disclose responsive materials and information under Brady, Giglio, and their progeny. The Government objects to Defendant's Motion to the extent it seeks materials beyond the requirements of Brady, Giglio, and their progeny.

To the extent it seeks materials responsive to Brady, Giglio, and their progeny, Defendant's Motion to Compel Attorney for the Government to Disclose Evidence Favorable to the Defendant, [Docket No. 25], is granted, as set forth herein.^[3] 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

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Government.^[4] 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 by no later than seven (7) days before trial or when the presiding trial judge requires disclosure of trial witnesses, whichever is earlier.^[5]

IV. Defendant's Motion for Pretrial Disclosure of Jencks Act Material. [Docket No. 26].

Defendant moves the Court for an Order requiring the Government to disclose Jencks Act materials at least two weeks before trial. (See, Def.'s Mot. for Early Disclosure of Jencks Act Material [Docket No. 26]).

The Government objects to Defendant's motion arguing that it cannot be required to make pretrial disclosure of Jencks Act materials.

The Court recognizes the practical effect that disclosing Jencks Act materials only after a witness has actually testified in the Government's case-in-chief creates the prospect for unnecessary continuances and delays in the trial while the Defense is permitted a reasonable time to review the late disclosures. However, Defendant provides no citation to authority which would allow the Court to require early disclosure of Jencks Act material. Generally, the case law provides that the Court may not require the Government to make early disclosure of Jencks Act material. See, e.g., United States v. Alexander, 736 F.Supp. 968, 981 (D. Minn. 1990); United

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States v. White, 750 F.2d 726, 727 (8th Cir. 1984); United States v. Wilson, 102 F.3d 968, 971- 72 (8th Cir. 1996).

Accordingly, Defendant's Motion for Early Disclosure of Jencks Act Material, [Docket No. 26], is denied.^[6]

V. Defendant's Motion to Retain Rough Notes. [Docket No. 27].

Defendant requests an Order from the Court requiring any law enforcement agent, to retain and preserve all rough notes taken as part of their investigations, whether or not the contents of such rough notes are incorporated in official records. (See, Def's Mot. for Gov't Agents to Retain Rough Notes [Docket No. 27]).

Defendant's Motion is granted regarding rough notes as to retention only at this time. If Defendant seeks production or disclosure of rough notes, he will need to bring a separate motion for such production.

VI. Defendant's Motion to Dismiss. [Docket No. 28].

Defendant is charged with two (2) counts of assault resulting in serious bodily injury in violation of 18 U.S.C. § 113(a)(6), 1151, and 1153(a). (Indictment [Docket No. 1]). The Indictment alleges that Defendant assaulted two separate victims during the same incident on February 1, 2021. (Id.).

Defendant's Motion to Dismiss, [Docket No. 28], seeks to dismiss the Indictment based on Defendant's assertion that “the harms alleged [in the Indictment] are not serious bodily injuries.” (Mot. to Dismiss [Docket No. 28]). Specifically, Defendant contends that neither the Indictment nor the discovery produced to date establishes that the two victims suffered any “serious bodily injury” as that phrase is statutorily defined. (Id.).

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“[T]o be valid, an indictment must allege that the defendant performed acts which, if proven, constitute the violation of law for which he is charged.” United States v. Polychron, 841 F.2d 833, 834 (8th Cir. 1988). An indictment properly states an offense if:

It contains all of the essential elements of the offense charges, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution. An indictment will ordinarily be held sufficient unless it is so defective that it cannot be said, by any reasonable construction, to charge the offense for which the defendant was convicted.

United States v. Sewell, 513 F.3d 820, 821 (8th Cir. 2008) (citations omitted). “An indictment is normally sufficient if its language tracks the statutory language.” Id. (citing Hamling v. United States, 418 U.S. 87, 117 (1974)).

In the present case, Defendant is charged with two (2) counts of assault resulting in serious bodily injury in violation of 18 U.S.C § 113(a). (Indictment [Docket No. 1]). Count 1 of the Indictment alleges that “[o]n or about February 1, 2021, ” Defendant “did assault victim W.A.T.L. resulting in serious bodily injury, all in violation of Title 18, United States Code, Sections 113(a)(6), 1151, and 1153.” (Indictment [Docket No. 1]). Similarly, Count 2 of the Indictment alleges that “[o]n or about February 1, 2021, ” Defendant “did assault victim T.S. resulting in serious bodily injury, all in violation of Title 18, United States Code, Sections 113(a)(6), 1151, and 1153.” (Indictment [Docket No. 1]).

In relevant part, 18 U.S.C. § 1153 provides that “[a]ny Indian who commits against the person or property of another Indian . . . a felony assault under section 113 . . . within Indian country, shall be subject to the same law and penalties as all other persons committing” the same

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offense, “within the exclusive jurisdiction of the United States.” 18 U.S.C. § 1153(a).^[7] Title 18 U.S.C....