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United States v. Stachowiak

United States District Court, D. Minnesota

February 1, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
THOMAS DANIEL STACHOWIAK, Defendant.

          ORDER

          Katherine Menendez, United States Magistrate Judge

         This 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.

         1. Motion for Disclosure of 404 Evidence (ECF No. 44).

         Mr. Stachowiak moves for immediate disclosure[1] 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.

         2. Motion to Compel Attorney for the Government to Disclose Evidence Favorable to the Defendant (ECF No. 45).

         Mr. 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.

         3. Motion to Provide Grand Jury Testimony of Any Witness Who Will Testify at Suppression Hearing (ECF No. 46).

         The 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 GRANTED.

         4. Motion to Disclose and Make Informants Available for Interview (ECF No. 47).

         Mr. 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 proposal.

         However, 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.

         Consistent 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.

         5. Motion for Early Disclosure of Jencks Act Material (ECF No. 48).

         Mr. 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. ยง 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 ...


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