TONY N. LEUNG, Magistrate Judge.
This matter is before the Court, United States Magistrate Judge Tony N. Leung, on the following motions filed by Defendant:
The parties agreed to waive the hearing and have the Court decide these motions on the papers. (Gov't's Omnibus Resp. at 1, ECF No. 25; Def.'s Letter, ECF No. 26; see ECF No. 27.) Based upon the record and memoranda,
1. Defendant's Motion for Discovery and Inspection (ECF No. 20) is
To the extent that Defendant's motion seeks discovery that the Government has already produced, Defendant's motion is denied as moot. To the extent that any other responsive discovery to Defendant's motion remains in the Government's control and has not yet been produced, Defendant's motion is granted.
Defendant also requests that, "[i]f prior to trial, the [G]overnment discovers additional evidence or material previously requested or ordered which is subject to discovery or inspection herein requested . . ." that the Government notify Defendant of such additional evidence or material. The Court has no reason to doubt that the Government will honor its continuing disclosure obligations under Federal Rule of Criminal Procedure 16(c). Defendant's request, however, is granted, and any such evidence or material that comes into the Government's possession, knowledge, or control shall be produced in a timely fashion.
2. Defendant's Pretrial Motion for Disclosure of 404 Evidence (ECF No. 21) 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." United States v. Ruiz-Chavez, 612 F.3d 983, 988 (8th Cir. 2010). It does not apply to intrinsic evidence. Id.; see also United States v. Beltz, 385 F.3d 1158, 1162 (8th Cir. 2004) ("Evidence that is relevant to the crime charged is not other crimes evidence."). "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." Ruiz-Chavez, 612 F.3d at 988 (quotation omitted).
Moreover, Rule 404(b) does not require that the Government "disclose directly or indirectly the names and addresses of its witnesses, something it is currently not required to do under [Fed. R. Crim. P.] 16." Fed. R. Evid. 404(b) advisory committee's notes, 1991 Amendments; see United States v. Polk, 715 F.3d 238, 249 (8th Cir. 2013); United States v. Hamilton, 452 F.2d 472, 479 (8th Cir. 1971); see also United States v. Miller, 698 F.3d 699, 704 (8th Cir. 2012) ("In 1975, Congress amended Rule 16 to eliminate a requirement that the government disclose its witnesses prior to trial.").
Therefore, no later than 21 days prior to trial, the Government shall provide "reasonable notice" of all "extrinsic" evidence then known to the Government that the Government intends to offer within the purview of Fed. R. Evid. 404(b). Defendant's motion is otherwise denied. 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 Motion to Compel Attorney for the Government to Disclose Evidence Favorable to the Defendant (ECF No. 22) is
"The [Supreme] Court has extended Brady protection to witness-credibility evidence when the reliability of the witness `may well be determinative of guilt or innocence.'" United States v. Sigillito, 759 F.3d 913, 930 (8th Cir. 2014) (quoting Giglio, 405 U.S. at 154); see also United States v. Whitehill, 532 F.3d 746, 753 (8th Cir. 2008) ("Brady applies to exculpatory and impeachment evidence, whether or not the accused has specifically requested the information." (citations omitted)). "One reason for this extension to witness-credibility evidence is because exposure of a witness's motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Sigillito, 759 F.3d at 930 (quotation omitted). The Eighth Circuit Court of Appeals "ha[s] determined that witness motivations, like the payment of money as an incentive to change testimony, fall within the Brady disclosure requirement." Id. (citing United States v. Librach, 520 F.2d 550, 554 (8th Cir. 1975)). "Furthermore, the prosecutor must disclose the possibility of a reward that gives the witness a personal stake in the defendant's conviction." Id. (citing United States v. Bagley, 473 U.S. 667, 683 (1985)).
Nevertheless, "[a] federal criminal defendant generally has no right to know about government witnesses prior to trial." Polk, 715 F.3d at 249 (quotation omitted); see Hamilton, 452 F.2d at 479 ("The request for statements of witnesses not to be called at trial is merely another way of determining whether the co-conspirators named in the indictment would be witnesses at trial, . . . [and] the identity of witnesses is information the government is not normally required to supply to the criminal defendant." (quotation omitted)); United States v. Wisman, No. 4:06CR0036 DJS/TCM, 2006 WL 587601, at *2 (E.D. Mo. March 9, 2006) ("The statements of a non-witness are not discoverable."). To the extent that Defendant seeks the statements of testifying witnesses, the production of any such statements fall within the purview of the Jencks Act and Federal Rule of Criminal Procedure 26.2.
Defendant's motion is granted in part to the extent that the Government shall comply fully with its obligations under Brady, Giglio, and their progeny and disclose all exculpatory and impeachment evidence as well as Jencks Act and Federal Rule of Criminal Procedure 26.2 materials. To the extent Defendant seeks discovery and disclosures outside the Government's obligations under these authorities or seeks materials that have already been produced, such requests are 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."). To the extent Defendant seeks the statements of non-testifying witnesses, this request is likewise denied. Hamilton, 452 F.2d at 479; Wisman, 2006 WL 587601, at *2.
If the Government subsequently discovers additional exculpatory or impeachment evidence, it shall disclose such evidence as soon as practicable after such discovery.
4. Defendant's Motion for Discovery of Expert Under Rule 16(a)(1)(G) (ECF No. 23) is
5. Defendant's Motion for Government Agents to Retain Rough Notes and Evidence (ECF No. 24) is
6. All prior consistent orders remain in full force and effect.
7. 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.