Opinion
5:20-CR-281-FL
12-07-2021
UNITED STATES OF AMERICA v. TYRONE ROSWELL DAVIS, Defendant.
ORDER AND MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr., United States Magistrate Judge.
This matter comes before the court on Defendant Tyrone Roswell Davis's motion to suppress, [DE-53], motion for disclosure of 404(b) evidence, [DE-54], motion for early release of Jencks material, [DE-55], motion for leave to file further pretrial motions, [DE-56], motion for disclosure of witness statements without redaction of their identity, [DE-57], motion to disclose promises and inducements, [DE-58], motion to disclose prior records of Government witnesses, [DE-59], and motion to sequester witnesses, [DE-60]. The Government responded in opposition to the motion to suppress, [DE-64], and filed an omnibus response to the other motions, [DE-67]. For the reasons that follow, the motion for disclosure of 404(b) evidence is allowed in part and denied in part, the motion for early release of Jencks material is denied, the motion for leave to file further pretrial motions is denied without prejudice, motion for disclosure of witness statements without redaction of their identity is denied, the motion to disclose promises and inducements is allowed in part and denied in part, the motion to disclose prior records of Government witnesses is allowed in part and denied in part, the motion to sequester witnesses is allowed, and it is recommended that the motion to suppress be denied.
I. PROCEDURAL BACKGROUND
A Grand Jury sitting in the Eastern District of North Carolina returned a two-count 1 indictment charging Defendant with distribution of a quantity of cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1), and possession of a firearm by a convicted felon, in violation of 21 U.S.C. §§ 922(g)(1) and 924. [DE-1]. Defendant, represented by court-appointed counsel, filed the instant motions, [DE-53 through -60], and the court continued the arraignment until a date to be set no sooner than forty-five days after the court's ruling on the pending motions. The court, at Defendant's request, held a hearing on the suppression motion on November 2, 2021, at which no witnesses were presented, the parties agreed that the court's review on the issue of probable cause was limited to the four corners of the search warrant, and the court heard legal argument from counsel.
Defendant offered a police report as an exhibit, and the Government objected on the basis that the court's review was limited to the search warrant and application. The court sustained the objection where Defendant did not make a challenge under Franks v. Delaware, 438 U.S. 154 (1978), to the veracity of the probable cause statement in the search warrant application. See United States v. Wilhelm, 80 F.3d 116, 118 (4th Cir. 1996) ("When reviewing the probable cause supporting a warrant, a reviewing court must consider only the information presented to the magistrate who issued the warrant." (citing United States v. Blackwood, 913 F.2d 139, 142 (4th Cir. 1990))).
II. STATEMENT OF FACTS
On November 13, 2019, Detective D.C. Nance of the Raleigh Police Department applied for a search warrant in Wake County District Court for 318 Cheswick Place Apt. G, Cary, North Carolina, 27511, which Detective Nance believed to be the residence of Defendant Tyrone Davis. Search Warrant Appl. [DE-53-1] at 2-3. Davis was observed earlier that day leaving 318 Cheswick Place and was thereafter arrested during a traffic stop on state felony warrants for Assault With a Deadly Weapon Intent to Kill Inflicting Serious Bodily Injury ("AWDWIKISI") and Possession of Firearm by a Felon. Id. Among the items to be seized were firearms, ammunition, shell casings, bullets, and firearm accessories. Id. at 2. The Probable Cause Affidavit contained within the application for search warrant stated as follows:
I, Detective D.C. Nance, have been a Law Enforcement Officer with the Raleigh2
Police Department for 15 years. I am currently assigned to Aggravated Assault Unit. I have been involved in aggravated assault investigations in the past. I have received training in drug enforcement through the Raleigh Police Department's Academy and regularly scheduled in-service training sessions. I have also received training from other drug investigators in the field of investigation, detection, and identification of illegal controlled substances. Through my training and experience, I am familiar with the persons, practices, and with the appearance, packaging, manufacturing, sales, and distribution of illegal controlled substances. I have conducted numerous investigations that have led to the arrest and conviction of individuals for violations of the North Carolina Controlled Substance Act G.S. 90-95.1 am familiar with drug violations and the activity and evidence associated with drugs such as drug dealers using vehicles for transportation of their drugs, street drug transactions and drug houses. In August 2016 I completed a Clandestine Laboratory Safety Course through Midwest Counterdrug Training Center.
On October 25, 2019 Raleigh Police Officers responded to 503 Bragg Street Raleigh, N.C. in regards to a person who had been shot by a firearm. The victim suffered a gunshot wound to his abdomen and was transported to Wake Medical Center for treatment. Raleigh Police Officers observed .40 caliber shells casing at the crime scene which were collected by Raleigh/Wake City-County Bureau of Identification (CCBI). The suspect fled the scene before police arrived.
The victim, Rakeem Nowell stated he was walking down Bragg Street when he was shot in the abdomen. Witnesses described the suspect as a black male with long thick dreads. Raleigh Police Officer W. Lane spoke with a concerned citizen who observed a black male matching the same description running down Mangum St and then leaving in a blue SUV. The concerned citizen stated the suspect was wearing a cast on one arm. Officer W. Lane who is familiar with the area was able to develop a person of interest based on the suspect's physical description. Officer Lane has observed the suspect recently wearing a cast. Officer Lane has also observed the suspect driving a bluish grey 2013 Nissan Rouge SUV (North Carolina registration #PDB-1381). A search of a law enforcement databased revealed Tyrone Davis has also been stopped in this vehicle by Law Enforcement in the past. This vehicle is registered to a Latisha McLaughlin.
On November 13, 2019 RPD Officer J. Walls received information from a confidential source that Latisha Mclaughlin and Tyrone Davis would be moving into 318-G Cheswick PI. Cary NC. RPD Fugitive Officer J. Wall's conducted physical surveillance and observed Latisha Mclauglin and Tyrone Davis exit the 318 building and get into two separate vehicles. Tyrone Davis was driving the above mentioned Nissan rouge and Latisha Mclaughlin was operating a U-Haul Truck. Cary Police conducted a traffic stop and arrested Tyrone Davis for his outstanding warrants. RPD Officer Walls also spoke with also confirmed with the apartment manager and confirmed their address off 318-G Cheswick PI. Officers Walls also spoke with Latisha Mclauglin and she confirmed that she and her boyfriend were3
staying at 318-G Cheswick PI.
On the same day of the shooting a confidential informant contacted Officer Lane and informed him that the shooter on Bragg Street was "Turtle". Officer Lane also knows the suspect goes by the street name "Turtle" and is documented in KOPS reporting system as well with this street name. Detectives also located a recorded paytel phone call with the victim's uncle discussing what occurred and stated that "Turtle" was the person who shot his nephew. Based on additional information and the evidence collected in this case felony warrants were obtained on October 29, 2019 for Tyrone Davis for AWDWIKISI and Possession of Firearm by Felon.
Tyrone Davis was arrested for AWDW Intent to kill inflicting serious bodily injury and possession of firearm by felon, on November 13, 2019. Tyrone Davis was observed leaving 318 Cheswick PI, Cary NC 27511 and was arrested during a traffic stop.
Based on the above information, it is believed that the firearm used in this case, along with additional evidence is currently located at 318-G Cheswick PI Cary NC 27511.Id. at 2-3 (grammatical errors original).
III. DISCUSSION
1. Motion to Suppress [DE-53]
Defendant moves to suppress any evidence obtained pursuant to the search warrant issued by Wake County Magistrate Jeffrey L. Godwin on November 13, 2019 for the search of the premises located at 318 Cheswick Place, Apartment G in Cary, North Carolina. [DE-53]. Defendant contends that the facts alleged in Detective Nance's affidavit in support of the application for search warrant are inadequate because they involved an alleged crime that was too remote in time and location to establish probable cause to search the premises at 318 Cheswick Place. [DE-53] at 5-6. The Government argues that the search warrant is supported by probable cause and, in the alternative, the good faith exception applies. [DE-64] at 7-11.
A. Probable Cause
The Fourth Amendment provides that "[t]he right of the people to be secure in their 4 persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." U.S. Const, amend. IV. The Supreme Court has interpreted the Fourth Amendment to establish three requirements for warrants: they must (1) be issued by neutral, disinterested magistrates; (2) be supported by probable cause; and (3) particularly describe the place to be searched and the things to be seized. United States v. Dalia, 441 U.S. 238, 256 (1979) (citations and quotations omitted). Probable cause is "not defined by bright lines and rigid boundaries[, ]" but instead "allows a magistrate to review the facts and circumstances as a whole and make a common sense determination of whether 'there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Williams, 974 F.2d 480, 481 (4th Cir. 1992) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). "[P]robable cause is a flexible, common-sense standard .... [that] merely requires that the facts available to the officer would 'warrant a man of reasonable caution'" to believe that evidence of a crime may be discovered and does not require "any showing that such a belief be correct or more likely true than false." Texas v. Brown, 460 U.S. 730, 742 (1983) (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)); see also Williams, 974 F.2d at 481. Sufficient information must be presented to the magistrate to allow for the exercise of independent judgment; the magistrate cannot simply ratify the bare conclusions of others. Gates, 462 U.S. at 239.
"When reviewing the probable cause supporting a warrant, a reviewing court must consider only the information presented to the magistrate who issued the warrant." United States v. Wilhelm, 80 F.3d at 118 (citing Blackwood, 913 F.2d at 142). Since probable cause is evaluated through a "totality of circumstances" analysis and based on a person's common sense, great deference is accorded to a magistrate's assessment of the facts before him. United States v. Montieth, 662 F.3d 660, 664 (4th Cir. 2011) (citing Gates, 462 U.S. at 230; Blackwood, 913 F.2d at 142). The court's 5 review is therefore limited to whether there was a "substantial basis for determining the existence of probable cause." Id. (quoting Gates, 462 U.S. at 239).
"There is no question that time is a crucial element of probable cause." United States v. McCall, 740 F.2d 1331, 1335 (4th Cir. 1984). "A valid search warrant may issue only upon allegations of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.'" Id. at 1335-36 (quoting Sgro v. United States, 287 U.S. 206, 210-11 (1932)). However, "[t]he vitality of probable cause cannot be quantified by simply counting the number of days between the occurrence of the facts supplied and the issuance of the affidavit.... Rather, [the court] must look at all the facts and circumstances of the case, including the nature of the unlawful activity alleged, the length of the activity, and the nature of the property to be seized." McCall, 740 F.2d at 1336. "The information in the warrant is not stale if the evidence sought is 'intrinsically likely to remain at the location where it was originally observed.'" Id. at 1337. The ultimate concern of the court when confronted with an issue of staleness is whether "the facts alleged in the warrant furnish probable cause to believe, at the time the search was actually conducted, that evidence of criminal activity was located at the premises searched." Id. at 1336.
First, Defendant argues that the information from October 25, 2019 in the warrant was too remote in time to support probable cause that a firearm would be found nineteen days later when the warrant issued. According to the Probable Cause Affidavit, on October 25, the Raleigh Police responded to a shooting on Bragg St. in Raleigh, the victim was taken to the hospital, and the shooter had fled the scene but .40 caliber shell casings were left behind. Witnesses described a black male with long, thick dreads as the suspect, and a concerned citizen saw a person matching that description, with a cast on one arm, running down Mangum St. in Raleigh and leaving in a 6 blue SUV. Officer Lane, who was familiar with the area and with Defendant, had recently seen Defendant wearing a cast and driving a bluish grey Nissan SUV and identified Defendant as a person of interest. A search of law enforcement databases revealed Defendant had been previously stopped by law enforcement in the Nissan SUV and that it was registered to Latisha McLaughlin. [DE-53-1] at 3.
Considering the totality of the circumstance, including the nature of the unlawful activity alleged, the length of the activity, and the nature of the property to be seized, the information in the affidavit related to the October 25 shooting was not stale when the warrant issued nineteen days later on November 13. See United States v. Comstock, 412 Fed.Appx. 619, 623 (4th Cir. 2011) ("Information that someone is suspected of possessing firearms illegally is not stale, even several months later, because individuals who possess firearms tend to keep them for long periods of time." (quoting United States v. Neal, 528 F.3d 1069, 1074 (8th Cir. 2008))). The Fourth Circuit in Comstock found that information regarding possession of a firearm was not stale despite an even longer passage of time than the nineteen days at issue in this case. See Id. (eleven weeks). Here, the nature of the unlawful activity alleged was possession of a firearm and an assault with a deadly weapon, i.e., a firearm, and the nature of the items to be seized were a firearm, ammunition, and other evidence related to the assault with a firearm. This court has previously recognized that because the possession of a firearm is "of a continuous nature," the passage of time between the allegations and issuance of the warrant is "of minimal significance." United States v. Covington, No. 5:18-CV-7-FL-1, 2019 WL 6826013, at *5 (E.D. N.C. Dec. 13, 2019) (citing United States v. Farmer, 370 F.2d 435 (4th Cir. 2004); United States v. Maxim, 55 F.3d 394, 397 (8th Cir. 1995) ("[People] tend[ ] to hold onto their firearms for long periods of time-often as long as ten or twenty years.")). Therefore, the information in the probable cause affidavit indicating that 7 Defendant was the suspect in a shooting on October 25 was not stale when the warrant issued on November 13.
Defendant also argues that the location of the shooting on Bragg St. in Raleigh was too geographically remote from the location to be searched-approximately twelve miles away in Cary-to support probable cause. The Probable Cause Affidavit stated that Officer Walls received information from a confidential source ("CS") that Defendant would be moving into 318-G Cheswick Place with Latisha McLaughlin, Officer Walls surveilled that location and observed Defendant and McLaughlin exit building 318, McLaughlin was driving a U-Haul truck, the officer manager confirmed Defendant and McLaughlin's address was 318-G Cheswick Place, and McLaughlin confirmed she and her boyfriend were staying at that address. "There is no constitutional requirement that an affidavit must attest to a personal observation of criminal activity at the premises to be searched." McCall, 740 F.2d at 1337; United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993) ("[P]robable cause can be inferred from the circumstances, and a warrant is not invalid for failure to produce direct evidence that the items to be seized will be found at a particular location."). The Fourth Circuit has recognized the usual places to keep a gun are in one's car or home, see United States v. Washington, 139 Fed.Appx. 479, 482 (4th Cir. 2005), and there was sufficient evidence to support the belief that Defendant resided at 318-G Cheswick PL Accordingly, Bragg St. was not too remote from the location to be searched for the information related to the shooting on Bragg St. to support probable cause.
Finally, at the hearing Defendant argued that the Probable Cause Affidavit lacked any information regarding the trustworthiness and reliability of the confidential informant who contacted Officer Lane on the day of the shooting and informed him the shooter on Bragg St. was "Turtle" or of the confidential source who stated Defendant and McLaughlin would be moving 8 into 318-G Cheswick Place. While the inference from the use of the terms "confidential informant" and "confidential source" is that these individuals were known to law enforcement, Defendant correctly observed that there is no information regarding their trustworthiness and reliability. However, "corroboration can confirm the reliability of an informant who is known (rather than anonymous) but whose credibility is unknown to the officer." United States v. Gondres-Medrano, 3 F.4th 708, 716 (4th Cir. 2021) (citing United States v. Harris, 403 U.S. 573, 579-84 (1971); United States v. White, 549 F.3d 946, 952 (4th Cir. 2008)). And, even if these individuals were anonymous tipsters, the information they provided may be used in making a probable cause determination where corroborating aspects of the tip can establish the anonymous informant's reliability. See United States v. Strange, No. 5:20-CR-217-FL-4, 2021 WL 3193179, at *6 (E.D. N.C. July 28, 2021) (citing Gates, 462 U.S. at 244-46).
On the day of the shooting, a confidential source contacted Officer Lane and informed him that the shooter on Bragg St. was "Turtle." The Probable Cause Affidavit states that Officer Lane developed a suspect based on the physical description given by witnesses who described a black man with long thick dreads and that a concerned citizen observed an individual meeting that description with a cast on one arm running down Mangum St. and then leaving in a blue SUV. Officer Lane was familiar with the area and with Defendant, who he believed to be the suspect 9 based on the physical description, including the cast he had recently observed Defendant wearing and the bluish grey Nissan SUV he had observed Defendant driving. This additional information developed by Officer Lane corroborated the information he later learned from the confidential source that the shooter was "Turtle," which Officer Lane knew was Defendant's street name and was documented in a law enforcement database. Similarly, the information provided by the confidential source-that Defendant would be moving into 318-G Cheswick Place with McLaughlin-was corroborated by Officer Walls's personal surveillance of Defendant and McLaughlin leaving building 318 and McLaughlin driving a U-Haul, the apartment manager's statement confirming Defendant and McLaughlin's address of 318-G Cheswick Place, and McLaughlin's statement that she and her boyfriend were staying at 318-G Cheswick Place. Accordingly, the information provided by the confidential informant and confidential source was sufficiently corroborated to establish the reliability of the sources.
Defendant argued at the hearing that the Probable Cause Affidavit lacks information regarding the proximity of Bragg St. to Mangum St. It is reasonable to assume that the magistrate in Raleigh would be familiar with the proximity of Bragg St. and Mangum St., and the Fourth Circuit has recognized that a magistrate could properly take judicial notice of geographical information in determining whether probable cause supported the issuance of a search warrant. See United States v. Johnson, 726 F.2d 1018, 1021 (4th Cir. 1984) (concluding that "the magistrate could simply take judicial notice of the distances involved and conclude that Johnson probably used his automobile. A magistrate sitting in Baltimore, familiar with these distances, could properly take cognizance of them. Geographical information of this type would be 'generally known within the territorial jurisdiction of the trial courtf, ]' See Fed.R.Evid. 201 [, and]... geographical information is especially appropriate for judicial notice.")
In sum, the court finds that the information provided in the search warrant application was not stale or too remote in geographic proximity to the place to be searched, the statements from the confidential source and confidential informant were sufficiently reliable because they were corroborated by law enforcement, and there was a substantial basis for the magistrate's finding of probable cause that contraband or evidence of a crime would be found at 318-G Cheswick Place.
B. Good Faith Exception
The Government argues, alternatively, that even if the evidence presented to the magistrate was lacking, the good faith exception should apply and the evidence should not be suppressed. [DE-64] at 9-11.
Evidence obtained in violation of the Fourth Amendment is generally precluded from use in a criminal proceeding against the individual whose rights were violated. 10 United States v. Thomas, 908 F.3d 68, 72 (4th Cir. 2018) (citing United States v. Kimble, 855 F.3d 604, 610 (4th Cir. 2017)). In United States v. Leon, 468 U.S. 897, 921 (1984), the Court recognized a "good faith exception" to the exclusionary rule, whereby "evidence obtained by an officer who acts in objectively reasonable reliance on a search warrant will not be suppressed, even if the warrant is later deemed invalid." Thomas, 908 F.3d at 72 (citing Leon, 468 U.S. at 922). The Fourth Circuit has recognized four "limited instances" where the exception will not apply:
(1) when the affiant based his application on knowing or reckless falsity; (2) when the judicial officer wholly abandoned his role as a neutral and detached decision maker and served merely as a 'rubber stamp' for the police; (3) when the affidavit supporting the warrant was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) when the warrant was so facially deficient that the executing officers could not reasonably have presumed that the warrant was valid.United States v. Burton, 756 Fed.Appx. 295, 301 (4th Cir. 2018) (quoting United States v. Wellman, 663 F.3d 224, 228-29 (4th Cir. 2011)), cert, denied, 139 S.Ct. 1636 (2019).
Here, there is no indication, and Defendant does not argue, that Detective Nance's application was based on knowing or reckless falsity, that the state magistrate abandoned his neutrality and acted as a rubber stamp, or that the warrant was so facially deficient that the executing officers could not reasonably presume its validity. Defendant argued at the hearing for application of the third exception-that the affidavit was so lacking in indicia of probable cause that it would have been unreasonable to rely on it-based on the time lapse between the crime and the issuance of the warrant, the difference in locations of the shooting and the place to be searched, and the lack of credible evidence supporting the search warrant. However, as discussed above, the information was not stale, the location of the shooting was not too remote from the place to be searched for the magistrate to determine there was probable cause that a firearm would be found there, and law enforcement corroborated the information obtained from confidential sources. 11
Defendant has failed to demonstrate that the affidavit was so lacking in indicia of probable cause that it would have been unreasonable to rely on it, and the good faith exception applies such that suppression is not warranted. Accordingly, it is recommended that Defendant's motion to suppress be denied.
2. Motion for Disclosure of All 404(b) Evidence [DE-54]
Defendant requests that the Government advise him of any evidence it intends to offer at trial pursuant to Rule 404(b) of the Federal Rules of Evidence. [DE-54]. The Government responded that it is aware of its obligations and will comply with the requirements to provide notice.
In a criminal case, Rule 404(b) requires that upon request by the accused, the prosecution must "provide reasonable notice of the general nature of any [Rule 404(b)] evidence" it intends to introduce at trial and "do so before trial - or during trial if the court, for good cause, excuses lack of pretrial notice." Fed.R.Evid. 404(b)(2). "The rule does not, however, entitle the defendant to the discovery of the 404(b) evidence itself." United States v. Ross-Varner, No. 5:14-CR-206-F-6, 2015 WL 1612045, at *10 (E.D. N.C. Apr. 9, 2015) (citing United States v. Graham, 468 F.Supp.2d 800, 802 (E.D. N.C. 2006) (noting that Rule 404(b) does not require the government to identify "the tangible evidence upon which [it] may rely to introduce the Rule 404(b) evidence")).
Defendant's request for notice of the general nature of any Rule 404(b) evidence the Government intends to introduce at trial is allowed in part and denied in part, and this notice shall be provided at least one week (seven days) prior to trial. See United States v. Renteria, No. 7:12-CR-37-FA-10, 2014 WL 2616630, at *4 (E.D. N.C. June 12, 2014) ("Even where the charges are serious, providing 404(b) notice one week prior to trial may be sufficient.") (citing Graham, 468 F.Supp.2d at 802; United States v. Swain, No. 4:07-CR-62-D, 2008 WL 717720, at *1 (E.D. N.C. Mar. 17, 2008)). 12
3. Motion for Early Release of Jencks Material [DE-55]
Defendant seeks a court order requiring the Government to release all material under the Jencks Act, 18 U.S.C. § 3 500, no later than twenty-one (21) days before the start of trial. [DE-55]. Defendant acknowledges the Fourth Circuit's holding in United States v. Lewis, 35 F.3d 148 (4th Cir. 1994) that the Government is not required to produce Jencks Act material relating to a witness until after that witness has testified, but argues that Defendant is unable to interview witnesses prior to trial, Defendant is in custody awaiting trial, and disclosure would not create a risk of nonappearance by or harm to witnesses. In response, the Government argues that Defendant's motion should be denied, as the Government believes it has already made an early production of Jencks material to Defendant and agrees to supplement its disclosures as necessary. [DE-67] at 4. While the Government may voluntarily make early production of Jencks material, the court may not require it to do so. Lewis, 35 F.3d at 151. Accordingly, Defendant's motion for early disclosure of Jencks material is denied.
4. Motion for Leave to File Further Pretrial Motions [DE-56]
Defendant seeks permission to file further pretrial motions after the deadline for filing motions has expired. [DE-56]. The Government takes no position on the motion. [DE-67] at 5. In support, Defendant contends that further motions may be necessary in response to the Government's or this court's actions on his other motions or that new issues may be raised by newly discovered evidence. The scheduling order in this case set the deadline for filing motions as August 18, 2020. [DE-12]. That deadline has already been continued more than ten times at Defendant's request. [DE-23, -25, -27, -29, -32, -38, -41, -43, -45, -47, -49]. Defendant now requests an indefinite extension of time to file motions. The court routinely denies such requests 13 when the defendant fails to allege good cause. See United States v. Montoya, No. 7:10-CR-30-1-F, [DE-64] at 3-4 (E.D. N.C. May 20, 2010); United States v. Ramirez, No. 7:05-CR-40-FL, [DE-35] at 7 (E.D. N.C. July 27, 2005). Here, Defendant merely speculates that additional motions may be necessary, and such speculation is insufficient to amount to good cause. See Montoya, No. 7:10-CR-30-l-F, [DE-64] at 4. Defendant may seek leave to file additional pretrial motions if the need arises. Accordingly, Defendant's motion for leave to file further pretrial motions is denied without prejudice.
5. Motion for Disclosure of Witness Statements Without Redaction of Their Identity [DE-57]
Defendant seeks to compel the Government, pursuant to 18 U.S.C. § 3500, to provide Defendant with the statements of its anticipated witnesses without redaction of their identities at least two weeks prior to the trial of this action. [DE-57]. The Government opposes the motion. [DE-67] at 5-6. As explained above, under the Jencks Act, 18 U.S.C. § 3500, "no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of... discovery ... until said witness has testified on direct examination in the trial of the case." While the Government may voluntarily make early production of Jencks material, the court may not require it to do so. Lewis, 35 F.3d at 151. Furthermore, with respect to names of witnesses, "[a]bsent a special showing of need, the government in a criminal case has no duty to provide the names or whereabouts of its witnesses." Swain, 2008 WL 717720, at *3 (citing United States v. Anderson, 481 F.2d 685, 693 (4th Cir. 1973)). The burden is on the defendant to establish the need for disclosure before the government's intended release of the information. See Rugendorf v. United States, 376 U.S. 528, 534-35 (1964); United States v. Blevins, 960 F.2d 1252, 1258-59 (4th Cir. 1992). 14 Defendant has offered no particularized need for immediate disclosure of the names of government witnesses. See United States v. Webb, No. 2:10-CR-41-H-3, 2011 WL 322394, at *2 (E.D. N.C. Jan. 31, 2011) (denying motion for disclosure of witness statements without redaction of their identity pursuant to 18 U.S.C. § 3500). Accordingly, the motion is denied.
6. Motion to Disclose Promises and Inducements [DE-58], and Motion to Disclose Prior Records of Government Witnesses [DE-59]
Defendant requests that the Government disclose to Defendant the existence and substance of any payments, promises, plea agreements, immunity, leniency, or preferential treatment made to prospective Government witnesses in this case. [DE-58]. The Government opposes producing this information prior to arraignment and intends to produce it one week prior to trial. [DE-67] at 7-8.
Pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, "the government is required to disclose evidence that is both favorable to an accused and material to either guilt or punishment." United States v. Newby, 251 F.R.D. 188, 190 (E.D. N.C. 2008) (internal quotations and citations omitted). This requirement includes the disclosure of evidence that could potentially be used to impeach or discredit a government witness, Giglio v. United States, 405 U.S. 150, 154 (1972), encompassing all plea agreements and promises of leniency, immunity, or other similar inducements to testify that have been given to witnesses, and the criminal records of witnesses, United States v. Stroop, 121 F.R.D. 269, 274 (E.D. N.C. 1988).
To the extent the Government either possesses or discovers favorable or impeaching material that has not already been produced, it must produce such material to Defendant no later than seven days (one week) prior to trial. See United States v. Mayhew, No. 5:13-CR-199-F-2, 2014 WL 185881, at *1 (E.D. N.C. Jan. 16, 2014) (ordering disclosure of Brady evidence seven 15 days prior to trial) (citing Graham, 468 F.Supp.2d at 802 (holding that while disclosure of Rule 404(b) information three days prior to trial would not be unreasonable, disclosure one week prior to trial would be sufficient)). Accordingly, Defendant's motions are allowed in part and denied in part.
7. Motion for Sequestration of the Government's Witnesses [DE-60]
Defendant seeks a court order sequestering all Government witnesses during the trial and to require the Government to designate one case agent as its representative for the duration of the trial. [DE-60]. The Government does not object to a sequestration order to apply both to the Government and Defendant, with the exception that the case agent for the Government be allowed to remain in the courtroom during trial. [DE-67] at 8.
Rule 615 of the Federal Rules of Evidence provides that "a[t] a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony." Thus, sequestration of witnesses is mandatory if requested. United States v. Farnham, 791 F.2d 331, 335 (4th Cir. 1986). Each witness is prohibited from discussing previous trial testimony with any other witness who has yet to testify at trial. United States v. Rhynes, 218 F.3d 310, 317 (4th Cir. 2000) (en banc) ("Sequestration requires that witnesses not discuss the case among themselves or anyone else, other than the counsel for the parties.") (quotations and citations omitted). Excepted from sequestration are (1) the parties themselves, (2) the designated representative of an entity, (3) a person whose presence is shown by a party to be essential to the presentation of the case, or (4) a person authorized by statute to be present. Fed.R.Evid. 615(a)-(d). A government investigative agent falls within the second exception, even if the agent is expected to testify; however, only one agent may be exempted from sequestration under this exception. Farnham, 791 F.2d at 334 (citing United States v. Parodi, 703 F.2d 768, 773 (4th Cir. 1983)); see also United States v. Lovin, 16 No. 7:06-CR-45-BO-3, 2007 WL 167454, at *2 (E.D. N.C. Jan. 18, 2007) (denying the government's request to exempt from sequestration agents from three different government agencies who jointly conducted the investigation).
Defendant's motion to sequester is allowed, with the exception of one case agent designated by the Government. The Government shall designate its case agent at the beginning of the trial. See United States v. Howard, No. 5:12-CR-9-D, 2012 WL 2525625, at *3 (E.D. N.C. June 29, 2012) (allowing the defendant's request for sequestration and requiring the government to designate the representative case agent at the beginning of the trial). Accordingly, the motion is allowed, and Government and defense witnesses shall be sequestered with the exception of the case agent designated by the Government.
IV. CONCLUSION
For the reasons stated herein, 1. the motion for disclosure of 404(b) evidence is allowed in part and denied in part, 2. the motion for early release of Jencks material is denied, 3. the motion for leave to file further pretrial motions is denied without prejudice, 4. the motion for disclosure of witness statements without redaction of their identity is denied, 5. the motion to disclose promises and inducements is allowed in part and denied in part, 6. the motion to disclose prior records of Government witnesses is allowed in part and denied in part, 7. the motion to sequester witnesses is allowed, and
8. it is recommended that the motion to suppress be denied.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until December 21, 2021 17 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b). Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).
So ordered and submitted. 18