United States District Court, D. Minnesota
Katherine Menendez, United States Magistrate Judge
matter is before the Court on Thomas Daniel Stachowiak's
motions for discovery and disclosure. The Court held a
hearing on the motions on January 31, 2019. Based on the
motions, the discussion at the hearing, and the entire record
in this case, the Court enters the following Order.
Motion for Disclosure of 404 Evidence (ECF No. 44).
Stachowiak moves for immediate disclosure of any evidence
the government intends to introduce at trial concerning other
“bad acts” or “similar course of
conduct.” Federal Rule of Evidence 404(b) requires the
government to provide reasonable notice that it will
introduce evidence of a crime, wrong, or other act to prove
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.
Fed.R.Evid. 404(b)(2). The government does not object to
disclosure of any evidence covered by Rule 404(b), but
objects to immediate disclosure. The motion (ECF No.
44) is GRANTED consistent with Rule
404(b). The government shall make disclosures as required by
Rule 404(b) at least two weeks prior to trial.
Motion to Compel Attorney for the Government to Disclose
Evidence Favorable to the Defendant (ECF No. 45).
Stachowiak seeks disclosure of exculpatory and impeaching
evidence. The government states that it is aware of its
obligations under Brady v. Maryland, 373 U.S. 83
(1963), Giglio v. United States, 405 U.S. 150 (1972,
and their progeny and will fully comply with those
obligations. However, the government objects to the motion to
the extent it seeks information beyond that which it is
required to disclose under the caselaw. Mr. Stachowiak's
motion (ECF No. 45) is
GRANTED. The government shall make
disclosures to the defense as required by Brady,
Giglio, and their progeny. These cases impose a
continuing obligation on the government to disclose evidence
that is favorable to a defendant in a criminal proceeding.
Motion to Provide Grand Jury Testimony of Any Witness Who
Will Testify at Suppression Hearing (ECF No. 46).
government represents that if any witness testifies at the
suppression hearing who also testified before the grand jury,
it will provide the transcript of the grand jury testimony to
the defense. Consistent with the government's
representation, the motion (ECF No. 46) is
Motion to Disclose and Make Informants Available for
Interview (ECF No. 47).
Stachowiak moves for the disclosure of the identities of any
informants the government used in its investigation and for
an order requiring the government to make those informants
available for an interview. The government represents that it
used a confidential informant during its investigation and
does not oppose providing the name of the informant to the
defense pursuant to Roviaro v. United States, 353
U.S. 53 (1957). The government represents that it has
concerns for the informant's physical safety and requests
that the informant's identity be disclosed 30 days before
trial. The defense does not object to the government's
the government objects to the request that the informant be
made available for interview. Both the government and the
defense “have an equal right to interview witnesses in
a criminal proceeding, ” but an informant is free to
decline to be interviewed by defense counsel. United
States v. Bittner, 728 F.2d 1038, 1041 (8th Cir. 1984).
Here, if the informant chooses not to be interviewed by
defense counsel, then the government is not required to make
him or her available for interview.
with the foregoing, Mr. Stachowiak's motion (ECF
No. 47) is GRANTED IN PART and
DENIED IN PART. The motion is granted to the
extent that the government shall disclose the identity of the
confidential informant at least 30 days before trial. At this
time, the motion is denied to the extent that the government
need not make the informant available for an interview.
Motion for Early Disclosure of Jencks Act Material (ECF No.
Stachowiak's motion for early disclosure of Jencks Act
material (ECF No. 48) is
DENIED. The Jencks Act does not require the
disclosure of any witness statement or report in the
possession of the government from being disclosed until after
the witness has testified at trial. 18 U.S.C. § 3500(a).
Nothing in this Order prohibits the government from
voluntarily making Jencks Act materials available to the
defense sufficiently in advance of trial to avoid any
unnecessary delays, and the Court strongly encourages