United States District Court, D. Minnesota
E. Kokkinen, Esq., Assistant United States Attorney, counsel
William J. Mauzy, Esq., Mauzy Law PA, counsel for Defendant
Steven B. Markusen.
S. Birrell, Gaskins, Bennett & Birrell, LLP, counsel for
Defendant Jay C. Cope.
R. THORSON UNITED STATES MAGISTRATE JUDGE
action came on for hearing before the Court on July 11, 2018,
at the U.S. Courthouse, 316 North Robert Street, St. Paul,
MN, 55101. The parties have filed various pretrial motions.
Based on the file and documents contained therein, along with
the memoranda and arguments of counsel, the Court makes the
Government's Motion for Discovery.
Government moves for discovery pursuant to Federal Rules of
Criminal Procedure 16(b), 12.1, 12.2, 12.3, and 26.2.
Defendants do not oppose this motion. Therefore, the
Government's Motion for Discovery (Doc. No.
35) is GRANTED.
Defendants' Motions for Discovery and
Defendants move for Orders requiring the Government to
produce certain documents for inspection and copying. The
Government does not object to producing materials that fall
within the scope of Rule 16 of the Federal Rules of Criminal
Procedure. The Government does object, however, to
Defendants' requests insofar as they go beyond the scope
of what is required by Rule 16. On that understanding,
Defendants' Motions for Discovery and Inspection
(Doc. Nos. 42, 55) are GRANTED IN
PART and DENIED IN PART. The
Government's expert disclosures shall be made 30
days before trial, and the Defendants' expert
disclosures shall be made 15 days before
Defendants' Motions for Brady and
Defendants move for disclosure of exculpatory, favorable, and
impeaching information under Brady v. Maryland, 373
U.S. 83 (1963), and Giglio v. United States, 405
U.S. 150 (1972). The Government responds that it is aware of
its obligations under Brady and Giglio, but
the Government objects to the motions insofar as they go
beyond the requirements of these cases and their progeny. For
example, Defendants suggest that the Government should be
ordered to make inquires of other agencies in order to
identify additional Brady and Giglio
evidence, but the Government's duty to search for and
learn of material exculpatory evidence only applies to
agencies “closely aligned with the prosecution.”
United States v. Brooks, 966 F.2d 1500, 1503 (D.C.
Cir. 1992); United States v. Morris, 80 F.3d 1151,
1169 (7th Cir. 1996) (holding that there is no “duty on
the prosecutor's office to learn of information possessed
by other government agencies that have no involvement in the
investigation or prosecution at issue”). On that
understanding, Defendants' Motions for Brady and
Giglio Materials (Doc. Nos. 43, 53,
57) are GRANTED IN PART and
DENIED IN PART.
Defendant Markusen's Motion for Disclosure of Rule 404(b)
Markusen moves for an Order requiring the Government to
disclose, one month before the trial date in this matter, any
evidence of other crimes, bad acts, or similar course of
conduct which it intends to offer pursuant to Federal Rule of
Evidence 404(b). The Government states that it is aware of
its obligations under Rule 404(b) and intends to comply fully
with those obligations. Moreover, the Government has already
agreed to produce any Rule 404(b) material at least 30 days
before trial to Defendant Cope, and proposes doing the same
for Defendant Markusen. The Government requests, however,
that the order be narrowly drawn to make clear that Rule
404(b) does not encompass acts which are
“intrinsic” to the charged offense.
“‘Other act' evidence is
‘intrinsic' when the evidence of the other act and
the evidence of the crime charged are ‘inextricably
intertwined' or both acts are part of a ‘single
criminal episode' or the other acts were ‘necessary
preliminaries' to the crime charged.” United
States v. Williams, 900 F.2d 823, 825 (5th Cir. 1990);
see also United States v. Adediran, 26 F.3d 61, 63
(8th Cir. 1994) (“[W]here the other crime is so
‘inextricably intertwined' with the charged crime .
. . Rule 404(b) is not implicated, . . .”). On that
understanding, Defendant's Motion to Require Notice of
Intention to Use Other Crimes, Wrongs, or Act Evidence
(Doc. No. 49) is GRANTED IN
PART and DENIED IN PART.
Defendant Markusen's Motion to Compel Affirmance or