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United States v. Smith

United States District Court, E.D. North Carolina, Southern Division

September 15, 2014

UNITED STATES OF AMERICA
v.
FELICIA SMITH, Defendant.

ORDER & MEMORANDUM AND RECOMMENDATION

KIMBERLY A. SWANK, Magistrate Judge.

This matter is before the court on the following motions filed by Defendant Felicia Smith:

1. Motion for Early Disclosure of Brady/Giglio Material, filed August 21, 2014 [DE #233];
2. Motion for Bill of Particulars, filed August 21, 2014 [DE #232];
3. Request for Notice of Intent to Use Rule 404(b) Evidence, filed August 21, 2014 [DE #231]; and
4. Motion to Dismiss, filed August 22, 2014 [DE #238].

The government has responded to Defendant's motions, and the time for further filings has expired. The motions were referred to the undersigned for decision or recommendation, as appropriate, by United States District Judge Louise W. Flanagan.

BACKGROUND

Defendant Felicia Smith is one of twelve defendants in this case. On May 27, 2014, a federal grand jury returned a true bill of indictment charging Smith with conspiracy to distribute and possess with the intent to distribute a quantity of cocaine, in violation of 21 U.S.C. § 846 and conspiracy to import a quantity of cocaine into the United States, in violation of 21 U.S.C. §§ 952(a), 960 and 963. Smith is set to be arraigned on September 17, 2014. Before the court are a number of pretrial motions filed by Smith.

DISCUSSION

I. Brady/Giglio Motion

Defendant moves the court for an order requiring the immediate production of exculpatory and impeachment evidence. Under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), the government need only disclose exculpatory and impeachment evidence "in time for its effective use at trial." United States v. Smith Grading & Paving, Inc., 760 F.2d 527, 532 (4th Cir. 1985). The government asserts that it has provided to Defendant all discoverable material available at this time, with the exception of plea agreements and criminal histories of potential witnesses. The government further states that it is aware of its obligations under Brady and Giglio and that it intends to provide copies of any plea agreements and criminal records of witnesses to Defendant no later than the Thursday prior to trial. The court credits the government's assertion that it will comply with Brady and Giglio and, accordingly, DENIES Defendant's Brady/Giglio motion.

II. Request for Notice of Intent to Use Rule 404(b) Evidence

Defendant next asks the court to order the government to provide notice of Rule 404(b) evidence. Under Rule 404(b), the government is obligated to notify a defendant if it intends to use evidence of the defendant's prior bad acts under Rule 404(b). See Fed.R.Evid. 404(b) ("Evidence of other crimes, wrongs, or acts... [may be admissible] provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial."). In its response to Defendant's motion, the government states that it is aware of its obligation to provide reasonable ...


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