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United States v. Hicks

United States District Court, D. Minnesota

July 1, 2019

United States of America, Plaintiff,
v.
Jerry Leavale Hicks, Defendant.

          BENJAMIN BEJAR, ESQ., ASSISTANT UNITED STATES ATTORNEY, COUNSEL FOR PLAINTIFF.

          DOUGLAS OLSON, ESQ., OFFICE OF THE FEDERAL DEFENDER, COUNSEL FOR DEFENDANT.

          ORDER

          BECKY R. THORSON UNITED STATES MAGISTRATE JUDGE

         This action came on for hearing before the Court on July 1, 2019, 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. Defendant does not oppose this motion. Therefore, the Government's Motion for Discovery (Doc. No. 23) is GRANTED.

         2. Defendant's Pretrial Motion for Disclosure of 404(b) Evidence.

         Defendant moves the Court for an Order directing the Government to disclose any “bad act” or “similar course of conduct” evidence it intends to offer at trial pursuant to Rule 404 of the Federal Rules of Evidence. The Government responds that it is aware of its obligations under Rule 404(b) and will comply with those obligations if it intends to introduce any such evidence at trial. The Government represents that it will provide notice and disclose any extrinsic 404(b) evidence that it intends to use at trial no later than fourteen days before trial. The Government also requests 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, . . .”). Subject to these conditions, Defendant's Pretrial Motion for Disclosure of 404(b) Evidence (Doc. No. 25) is GRANTED. The Government shall provide notice and disclose any extrinsic 404(b) evidence that it intends to use at trial no later than fourteen days before trial.

         3. Defendant's Motion to Compel Attorney for the Government to Disclose Evidence Favorable to the Defendant.

         Defendant moves the Court for an Order compelling disclosure of any evidence in the possession of the prosecution or any of its agents, or other evidence the existence of which is known, or by the exercise of due diligence may become known to the prosecution, which may be favorable to the Defendant or could reasonably weaken or affect any evidence that may be introduced against the Defendant or is otherwise relevant to the subject matter of this case and may in any manner aid Defendant in the investigation or preparation of the case for trial or sentencing. The Government responds 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 that such evidence will be or already has been disclosed. Therefore, Defendant's Motion to Compel Attorney for the Government to Disclose Evidence Favorable to the Defendant (Doc. No. 26) is GRANTED.

         4. Defendant's Motion for Discovery and Inspection.

         Defendant moves for discovery and inspection; the Government responds that it has provided extensive discovery in the case to date and understands its continuing obligations with respect to discovery under the applicable rules, including Fed. R. Crim. P. 16(a)(1)(A)-(F). On that understanding, Defendant's Motion for Discovery and Inspection (Doc. No. 27) is GRANTED.

         5. Defendant's Motion for Discovery and Inspection of Products and Records of Electronic Surveillance.

         Defendant seeks disclosure of electronic surveillance, including either wiretapping and interceptions of telephone conversations, or any form of surveillance by radio transmissions or receptions, or any other form of electronic surveillance or detection used by the Government in any phase of its investigation of the Defendant. In response to this motion, the Government reiterates its response to the previous motion-- that it has provided extensive discovery in the case to date and understands its continuing obligations with respect to discovery under the applicable rules. To the extent that such materials exist, the Government states that it has disclosed all such materials in compliance with Rule 16, including surveillance videos, records jail calls, and cell phone tracking warrants, and it will make available the tracking ...


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