TONY N. LEUNG, Magistrate Judge.
This matter is before the Court, United States Magistrate Judge Tony N. Leung, on the following motions:
Based upon the record, memoranda, oral arguments of counsel, and the agreement of the parties as noted at the hearing and in their respective briefs,
1. The Government's Motion for Discovery (ECF No. 11) is
2. Defendant's Motion for Pretrial Disclosure of 404 Evidence (ECF No. 15) is
Rule 404(b) requires the Government to provide reasonable notice before trial when evidence of a crime, wrong, or other act will be used to "prov[e] motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed. R. Evid. 404(b)(2). "Rule 404(b) . . . applies to the admission of wrongful-act evidence that is extrinsic to the charged offense; the rule does not prevent admission of other wrongful conduct that is intrinsic to the charged offense." United States v. Ruiz-Chavez, 612 F.3d 983, 988 (8th Cir. 2010) (citations omitted). "Evidence of other wrongful conduct is considered intrinsic when it is offered for the purpose of providing the context in which the charged crime occurred." United States v. Johnson, 463 F.3d 803, 808 (8th Cir. 2006) (citation omitted).
Therefore, no later than 14 days prior to trial, the Government shall provide reasonable notice of all extrinsic evidence then known to the Government that it intends to offer at trial within the purview of Fed. R. Evid. 404(b). If the Government subsequently discovers additional extrinsic evidence, it shall provide reasonable notice of such evidence as soon as practicable after such discovery.
3. Defendant's Pretrial Motion to Compel Attorney for the Government to Disclose Evidence Favorable to the Defendant (ECF No. 16) is
The Government shall comply fully with its obligations under Brady, Giglio, and their progeny. To the extent Defendant's motion seeks discovery and disclosures outside the Government's obligations under these authorities, it is denied. See United States v. Johnson, 228 F.3d 920, 924 (8th Cir. 2000) ("Criminal defendants do not have a general constitutional right to discovery. In most circumstances, then, a defendant must point to a statute, rule of criminal procedure, or other entitlement to obtain discovery from the government") (citing Weatherford v. Bursey, 429 U.S. 545, 559 (1977)). Because information related to the confidential reliable informant's compensation and criminal history is exculpatory only if used for impeachment purposes, the Government shall be required to provide that information only if it intends to call the informant as a witness at trial. See United States v. Bagley, 473 U.S. 667, 676-77 (1985) (noting impeachment evidence must be disclosed under Brady).
4. Defendant's Pretrial Motion to Disclose and Make Informant Available for Interview (ECF No. 18) is
"In Roviaro v. United States, the Supreme Court recognized the government's privilege to withhold the identity of a confidential informant." United States v. Alcantar, 271 F.3d 731, 739 (8th Cir. 2001) (citing 353 U.S. 53, 59 (1957)). In determining whether disclosure of an informant's identity is required, "the threshold issue is whether the informant is a material witness." Carpenter v. Lock, 257 F.3d 775, 779 (8th Cir. 2001).
"Where the witness is an active participant or witness to the offense charged, disclosure will almost always be material to the accused's defense." Devose v. Norris, 53 F.3d 201, 206 (8th Cir. 1995) (footnote omitted). "In cases involving `tipsters' who merely convey information to the government but neither witness nor participate in the offense, disclosure is generally not material to the outcome of the case and is therefore not required." United States v. Harrington, 951 F.2d 876, 878 (8th Cir. 1991) (citing United States v. Bourbon, 819 F.2d 856, 860 (8th Cir. 1987)); accord United States v. Lapsley, 334 F.3d 762, 764 (8th Cir. 2003) ("Consequently, disclosure is typically not required when the informant merely conveys information to the government but neither witnesses nor participates in the offense." (quotations omitted)); Alcantar, 271 F.3d at 739 (government had no obligation to reveal informant's identity where informant did not participate in crime charged or testify at trial). Similarly, "the identity of a `tipster' whose observations formed the basis for a search warrant but who is not a necessary witness to the facts is not subject to compulsion." United States v. Hollis, 245 F.3d 671, 674 (8th Cir. 2001). Defendant bears the burden of showing beyond mere speculation that the disclosure of informants and cooperating individuals would be material and helpful to her case. United States v. Roberson, 439 F.3d 934, 940 (8th Cir. 2006); Alcantar, 271 F.3d at 739.
In light of the Government's agreement, the Court orders the Government to disclose the identities of any informants and cooperating witnesses whom the government expects to call as witnesses at trial and who relate to the charges against Defendant, and to cooperate with the defense in making such witnesses available for interview. The Government shall also disclose the prior criminal convictions of such informants and witnesses. The Government shall make these disclosures no later than three weeks before trial. United States v. Bias, No. 17-cr-318(06) (SRN/FLN), 2018 WL 3336770, at *2-3 (D. Minn. July 6, 2018); United States v. Cree, No. 12-cr-26(4) (JRT/JSM), 2012 WL 6194395, at *5 (D. Minn. Dec. 12, 2012) (finding that even seven days' notice "appropriately balance[d] [defendant's] rights with the protection of the confidential informants").
5. Defendant's Motion for Early Disclosure of Jencks Act Material (ECF No. 19) is
6. Defendant's Pretrial Motion for Government Agents to Retain Rough Notes and Evidence (ECF No. 20) is
7. At the July 24, 2019 hearing, after the Court ruled on Defendant's Motion for New Counsel (ECF No. 46) and Attorney Aligada's oral motion to withdraw as counsel, Defendant made an oral motion to continue the hearing on his Motion for Hearing Pursuant to Franks v. Delaware. (ECF No. 22). Following argument, the Court concluded, pursuant to 18 U.S.C. § 3161(h), that good cause existed to continue the hearing on Defendant's motion for a Franks hearing, as well as Defendant's Pretrial Motion to Suppress Fruits of Unlawful Arrest and Search and Seizure (ECF No. 21), Defendant's Pretrial Motion for Discovery and Inspection (ECF No. 17), and Defendant's Motion for Supplemental Discovery (ECF No. 39) ("Continued Motions"). Therefore, for the reasons stated on the record, which are expressly incorporated herein by reference, the period of time from
A motions hearing will be held on the Continued Motions pursuant to Federal Rules of Criminal Procedure 12(c) where:
The motions hearing shall be heard before Magistrate Judge Tony N. Leung on
If either party wishes to call witnesses at the September 30, 2019 motions hearing regarding Defendant's Pretrial Motion to Suppress Fruits of Unlawful Arrest and Search and Seizure (ECF No. 21) that have not been previously identified in a Notice of Intent to Call Witnesses, the party must file a supplemental Notice of Intent to Call Witnesses, D. Minn. LR. 12.1(c)(3)(A), or, if applicable, a Responsive Notice of Intent to Call Witnesses. D. Minn. LR 12.1(c)(3)(B). Any Supplemental Notice of Intent to Call Witnesses shall be filed by
8. All prior consistent orders remain in full force and effect.
9. Failure to comply with any provision of this Order or any other prior consistent order shall subject the non-complying party, non-complying counsel, and/or the party such counsel represents to any and all appropriate remedies, sanctions, and the like.