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United States v. Shanklin

United States District Court, W.D. Kentucky, Louisville

December 21, 2016

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DAMON SHANKLIN, DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Thomas B. Russell, Senior Judge United States District Court.

         This matter is before the Court on five pretrial motions of Defendant Damon Shanklin. [DN 14; 15; 16; 17; 29.] The United States has responded. [DN 22; 23; 24; 25; 41.] As to one motion [DN 29], Defendant replied. [DN 42.] These motions are now ripe for adjudication. The Court will address each of Defendant's motions in turn.

         I. Motion for Disclosure of 404(b) Evidence [DN 14]

         In his first motion, Defendant seeks an order requiring the United States to turn over Rule 404(b) evidence. [DN 14.] Rule 404(b) allows prosecutors to introduce evidence of crimes, wrongs, or other acts of the defendant for a permissible purpose, “such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2). Moreover, upon the request of the defendant, prosecutors “must . . . (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and . . . (B) do so before trial - or during trial if the court, for good cause, excuses lack of pretrial notice.” Id. This notice requirement “is intended to reduce surprise and promote early resolution on the issue of admissibility.” Id. 404(b) advisory committee's note to 1991 amendment.

         Defendant requests that the United States include in its Rule 404(b) disclosures “a description of the general nature” of such evidence and “the manner and means in which it intends to be proved, including statement of witnesses or a summary of the substance of any testimony that is expected to be offered” at least thirty days before trial. [DN 14 at 1-2.] In its Response, the United States acknowledges its obligation to disclose Rule 404(b) evidence in advance of trial, but asserts that the Rule does not require a specific time in which disclosures must be made, and that fourteen days is more appropriate than the thirty days Defendant suggests. [DN 24 at 1.] It appears the only dispute between the parties in this regard is the required time for disclosure.

         In the Scheduling Order entered by the Court on October 5, 2016, the Court stated that “[t]he Government shall provide 404(b) evidence three weeks prior to trial, ” and that “[a]ny objections by defendant shall be filed within 7 days.” [DN 31 at 1.] Given the nature and complexity of the case, the Court finds that three weeks, or twenty-one days, is a reasonable time for the United States to disclose 404(b) evidence such that Defendant will have an adequate opportunity to utilize such evidence. Accordingly, insofar as Defendant requests this Court to order disclosure thirty days in advance of trial, his motion is denied. Insofar as Defendant seeks disclosure of Rule 404(b) evidence in general, his motion is granted.

         II. Motion for Disclosure of In-Court and Out-of-Court Identification [DN 15]

         In his second motion, Defendant requests the Court to order the United States to provide “written notice of whether the Defendant was the subject of any identification procedure employed by the government, and if so, to disclose whether the Defendant was the subject of identification through any photo spread or similar identification proceeding, the procedure employed, and the results thereof.” [DN 15 at 2.] In its Response, the United States asserts that it “does not have evidence of any out-of-court witness identification evidence at this time. If in the future, however, the United States does obtain evidence of out-of-court identification, it will notify Shanklin as soon as practicable to afford the defendant an opportunity to object before trial.” [DN 23 at 1.] Accordingly, the Court will deny Defendant's motion as moot.

         III. Motion for Disclosure of Favorable Evidence [DN 16] and Motion for Production of Exculpatory and Impeachment Evidence [DN 17]

         In his third motion, Defendant seeks to compel the United States to disclose favorable evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963). [DN 16.] Defendant states that such disclosures “should include a description of the general nature of any such evidence, ” in addition to “statements of witnesses or a summary of the substance of any testimony that is relevant to disclosure, ” and “the name, address, and telephone number of relevant witness, if known to the government or the exercise of due diligence can be obtained.” [Id. at 1.]

         In his fourth motion, Defendant seeks to compel the United States to disclose evidence “tending to show witness bias, drug use or habit, psychiatric treatment, monetary incentive, leniency or favorable treatment, or other evidence showing lack of competency or impartiality” of government witnesses pursuant to Giglio v. United States, 405 U.S. 150 (1972). [DN 17.]

         Brady and its progeny define the scope of the United States' obligation to “turn over material that is both favorable to the defendant and material to guilt or punishment.” United States v. Bencs, 28 F.3d 555, 560 (6th Cir. 1994). “Materiality pertains to the issue of guilt or innocence, and not to the defendant's ability to prepare for trial.” Id. (citing (United States v. Agurs, 427 U.S. 97, 112 n.20 (1976)). Moreover, the United States' obligation includes a duty to disclose evidence that could be used to impeach a witness's credibility when his reliability “may be determinative of guilt or innocence.” Giglio, 405 U.S. at 154-55. See also United States v. Presser, 844 F.2d 1275, 1278 (6th Cir. 1988) (“The general rule articulated in Giglio, is the Brady rule.”)

         “[T]he government typically is the sole judge of what evidence in its possession is subject to disclosure. If it fails to adequately comply with a discovery order requiring it to disclose Brady material, it acts at its own peril.” Id. at 1281. If the prosecution denies that such exculpatory material exists, the defense has no “general right to pre-trial discovery of evidence impeaching defense witnesses.” Id. at 1283.

         In its Responses to Defendant's motions, the United States assures the Court that it recognizes its duties under Brady and Giglio and that it will comply with those duties. [DN 25; 22.] However, the United States argues that Defendant's requests for disclosure are broader than required by Brady and Giglio and should therefore be denied. [DN 25; 22.] Specifically, for example, the United States asserts that it is not required to disclose “evidence available to the defense from other sources, ” “evidence the defense already possesses, ” “evidence that the United States could not reasonably be imputed to have knowledge or control over, ” or “evidence that might lead to other evidence.” [DN 25 at 1-2; DN 22 at 1-2 (citations omitted).] The United States also points out that it is “well-settled that statements of witnesses (Jencks material) need not be disclosed until after the witness testifies. If a statement ...


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