United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
THOMAS B. RUSSELL, District Judge.
This matter comes before the Court upon several evidentiary and discovery motions filed by Defendant Demetrius Lamont Davis, each of which has been fully briefed and is now ripe for adjudication. The Court now considers Davis's Motion to Identify Informants, (Docket No. 43); Motion to Exclude Recordings of Confidential Informant, (Docket No. 51); Motion to Compel Discovery of ATF Protocols, (Docket No. 52); and Motion to Exclude Reference to Officers' Prior Knowledge of Defendant and Any Details of Prior Felonies, (Docket No. 53). The Government has responded to each. (Docket Nos. 49, 57, 55, and 56.) The Court will address each of Davis's motions in turn.
I. Motion for Identity of Confidential Informant
The Court first considers Davis's renewed motion seeking the identity of the Government's confidential informant fourteen days before trial. (Docket No. 43.) In its prior order regarding a similar motion, the Court noted that the Government plans to call the informant in question as a witness at trial. (Docket No. 37 at 5.) Consequently, the Government need not issue a pretrial disclosure of the informant, pursuant to Sixth Circuit precedent. See, e.g., United States v. Perkins, 994 F.2d 1184 (6th Cir. 1993); United States v. Brice, 2009 WL 2043554 at *1 (W.D. Ky. July 9, 2009).
The Government has acknowledged its obligation to provide impeachment information prior to trial and in time to make effective use thereof, including information concerning the informant's relevant criminal history, payment information, and the nature of his relationship with the Government's enforcement agents. See United States v. Presser, 844 F.2d 1275, 1283 (6th Cir. 1988). Moreover, the Government avers that it is not currently aware of any potentially exculpatory information but will comply with its Brady and Giglio obligations should such information arise. (Docket No. 49 at 2.) See Giglio v. United States, 405 U.S. 150, 154-55 (1972); Brady v. Maryland, 373 U.S. 83, 87 (1963).
As explained in the Court's prior ruling, the Government is not obligated to disclose the informant's identity at this stage. Although the Court will deny Davis's motion, it nonetheless strongly encourages early disclosure.
II. Motion to Exclude Recordings of Confidential Informant
Davis next moves the Court to exclude from admission the recorded phone calls between himself and the confidential informant discussed above. (Docket No. 51.) He directs the Court to Federal Rule of Evidence 106, which permits the introduction of any other recorded statement "that in fairness ought to be considered at the same time." Davis argues the Government failed to record other telephone conversations that he had with the informant, and that if not all such conversations can be produced, none should be admissible.
The Court cannot agree. The Government intends to admit the entirety of the recorded phone calls, thus precluding the possibility of their being lifted out of context. Although one of the informant's calls to Davis was apparently unrecorded, it does not appear that the contents of that call are crucial. More importantly, Davis will be afforded the opportunity to conduct a full and rigorous cross-examination of any witnesses with knowledge of the unrecorded call pursuant to the Sixth Amendment's confrontation clause. Accordingly, the Court will deny Davis's motion to exclude these recordings.
III. Motion to Compel Discovery of ATF Protocols
Davis also moves the Court to compel the Government disclose the Bureau of Alcohol, Tobacco, and Firearms' ("ATF") protocols concerning targeting of gun sting operations and the acquisition of guns for use in such operations. He offers only the contours of an argument that the ATF perhaps used "questionable tactics regarding firearm and drug sting operations" and seeks additional information to investigate this possibility. (Docket No. 52.)
The Court perceives no indication of selective prosecution in Davis's case, particularly in light of the Government's "broad discretion" to enforce federal criminal laws." United States v. Armstrong, 517 U.S. 456 (1996). Lacking clear evidence suggesting otherwise, the Court must presume that the Government has proceeded appropriately. Id. Here, Davis has failed to satisfy the "rigorous standard for discovery in aid of [a selective prosecution] claim." Id. at 468. Because he has offered evidence of neither discriminatory effect nor discriminatory intent, Davis is not entitled to the discovery materials that he seeks. See United States v. Bass, 536 U.S. 863, 863 (2002) (citations omitted).
IV. Motion in Limine to Exclude Any Reference to Officers' Prior Knowledge of Defendant and Any Details of Prior Felonies
Finally, Davis seeks to exclude any details of his prior felony convictions. (Docket No. 53.) Davis, who is charged with being a felon in possession of a handgun, has offered to stipulate to the fact that he is a convicted felon. He points to Old Chief v. United States, 519 U.S. 172 (1997), in support of his request that the Government be ...