The opinion of the court was delivered by: Judge Sara Lioi
The Third Superseding Indictment charges the defendants, James C. Dimora and Michael D. Gabor, with RICO conspiracy, conspiracy to commit mail fraud and honest services mail fraud, Hobbs Act violations, and various other related crimes. (Doc. No. 444, Third Superseding Indictment.) The charges stem from an extensive three-year federal investigation into allegations of public corruption in Cuyahoga County, Ohio.
On September 1, 2011, defendants filed a series of pre-trial motions.
The Court conducted a hearing on all of the pre-trial motions on
October 5, 2011. Six of these motions touch upon discovery issues and
five of them will be addressed in this Opinion and Order.*fn1
Specifically, the Court shall address herein: defendant
Gabor's motion for production of statements of persons who are not
government witnesses (Doc. No. 416);
defendant Gabor's motion for disclosure of Rule 404(b) evidence (Doc.
No. 418); defendant Gabor's motion to reveal all deals with
cooperating witnesses (Doc. No. 419); defendant Gabor's motion for
production of Jenks material prior to suppression hearing or trial
(Doc. No. 420); and defendant Dimora's motion for a discovery deadline
(Doc. No. 421).*fn2
1.Defendant Gabor's Motion for Production of Statements of Persons Who are not Government Witnesses (Doc. No. 416)
Without providing any legal basis for the request, defendant Gabor moves "the Government to exercise due diligence by making inquiry and searching, and to produce any and all statements [.] attributed to persons whom the Government does not presently intend to call as witnesses herein." (Mot. at 1.) The government denies that the defendants are entitled to any such evidence. The Court agrees.
Rule 16(a)(2) of the Federal Rules of Criminal Procedure specifically
states that it does not authorize "the discovery or inspection of
statements made by prospective government witnesses except as provided
in 18 U.S.C. § 3500." Section 3500, otherwise known as the Jenks Act,
in turn, covers the production of statements and reports of government
witnesses and does not provide for the production of statements by
individuals the government does not intend to call.*fn3
See United States v. Shyne, 617 F.3d 103, 105 (2d Cir. 2010)
("the disclosure requirements of the Jenks Act, 18 U.S.C. § 3500, do
not apply to non-testifying declarants"); United States v. Schier, 438
F.3d 1104, 1112
(11th Cir. 2006) ("Plainly, the Jencks Act does not apply to the
statements of non-testifying witnesses.")
The Court finds no rule or statute that would require the government to comply with defendant Gabor's request. Further, to the extent that this request triggers the government's production obligations under Brady v. Maryland, 373 U.S. 83 (1963); the Jenks Act; or Giglio v. United States, 405 U.S. 150 (1972), the government has indicated that it is mindful of its discovery obligations and intends to meet them.
Finding no basis to support defendant Gabor's discovery request, the motion is DENIED.
2. Defendant Gabor's Motion for Disclosure of Rule 404(b) Evidence (Doc. No 418)
Defendant Gabor requests that the government produce all information that it intends to introduce as to other crimes, wrongs or acts covered by Rule 404(b) of the Federal Rules of Evidence. He insists that early production (two weeks prior to trial) of such evidence is necessary to allow for "adequate review and preparation of motions in limine, if appropriate." (Mot. at 1.) The government responds that it has filed a notice of intent (Doc. No. 443) and supplemental notice of intent (Doc. No. 470) to use Rule 404(b) evidence, and that, therefore, this motion is moot. Defendant Gabor reminds the Court that the duty to provide such evidence is on-going.
At the motion hearing, the government represented that it intends to
honor its continuing discovery obligations, including its obligation
to provide Rule 404(b) evidence upon request. See United States v.
Gonzalez, 501 F.3d 630, 637 (6th Cir. 2007) ("Under Rule 404(b), when
the defendant requests notification of the government's intent
to introduce other-act evidence, the government must provide such
notice in a reasonable form and manner."); see, e.g., United States v.
Barnes, 49 F.3d 1144, 1147 (6th Cir. 1995) (setting forth the Rule
404(b) notice requirements). Now that such a request has been made by
motion, the Court directs the government to continue to provide to
both defendants any information or evidence that is responsive to that
request as such evidence becomes available. Athough recognizing that
the government's obligation to provide such information is a
continuing one, see Barnes, 49 F.3d at 1145, the Court DENIES
defendant Gabor's motion as moot.
3. Defendant Gabor's Motion to Reveal All Deals with Cooperating Witnesses (Doc. No. 419)
Citing Giglio, defendant Gabor requests "this Court to Order the Government to reveal any agreement, verbal or written, entered into between the Government and cooperating witnesses." (Mot. at 3.) The government observes that defendant Gabor's motion does nothing more than request that the government honor its obligations under Giglio, which, the government contends, it has every intention of doing. According to the government, defendant Gabor already has access to much of the requested information, as certain agreements were produced prior to the scheduled depositions of Kevin Payne and Jerry Skuhrovec, and other deals have become publicly available after the Court accepted each agreement. The Court is satisfied with the government's representation that ...