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United States v. Markusen

United States District Court, D. Minnesota

July 13, 2018

United States of America, Plaintiff,
v.
Steven B. Markusen and Jay C. Cope, Defendants.

          John E. Kokkinen, Esq., Assistant United States Attorney, counsel for Plaintiff.

          William J. Mauzy, Esq., Mauzy Law PA, counsel for Defendant Steven B. Markusen.

          Andrew S. Birrell, Gaskins, Bennett & Birrell, LLP, counsel for Defendant Jay C. Cope.

          ORDER

          BECKY R. THORSON UNITED STATES MAGISTRATE JUDGE

         This 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 following Order:

         1. Government's Motion for Discovery.

         The 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.

         2. Defendants' Motions for Discovery and Inspection.

         Both 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 trial.

         3. Defendants' Motions for Brady and Giglio Materials.

         Both 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.

         4. Defendant Markusen's Motion for Disclosure of Rule 404(b) Evidence.

         Defendant 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.

         5. Defendant Markusen's Motion to Compel Affirmance or ...


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