United States District Court, E.D. North Carolina, Eastern Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
matter is before the Court on defendant's motion for
production of favorable evidence pursuant to Brady v.
Maryland [DE 27], motion to exclude cell phone records
[DE 28], motion for disclosure regarding government experts
[DE 29], motion to require early disclosure of witness
statements [DE 30], and motion for relief pursuant to
Kyles v. Whitley [DE 31]. The government has filed
an omnibus response and the motions are ripe for ruling.
superseding indictment was filed on January 20, 2017,
charging defendant with making a false statement to influence
a bank on a loan, 18 U.S.C. § 1014; wire fraud, 18
U.S.C. § 1343, and conspiracy to commit arson, arson
aiding and abetting, and aggravated arson and aiding and
abetting. 18 U.S.C. § 844. The arraignment is currently
set for the Court's July 2017 term.
Motion for production of favorable evidence and motion
pursuant to Kyles v. Whitley.
seeks an order requiring the government to permit defendant
to inspect, copy and/or photograph any and all evidence in
its possession which is favorable to the defendant and
material to the issue of guilt or innocence or the
credibility of a government witness or punishment in this
case. See Brady v. Maryland, 373 U.S. 83 (1963).
Defendant further seeks an order directing the government to
conduct an investigation consistent with Kyles v.
Whitley and to learn of and disclose any favorable
evidence known to others acting on its behalf. 519 U.S. 419,
437-48 (1995). The government is already under an obligation
to disclose such evidence, and defendant's motion gives
no indication that the government has failed to meet its
obligations here. Defendant's request is noted and his
motions are denied without prejudice.
Motion to exclude cell phone records.
seeks an order excluding all cell records and expert opinions
about the location of where a cell call was located when made
from presentation at any stage of the jury trial, arguing
that he has a reasonable expectation of privacy in his cell
phone records. In 2014, the Supreme Court held that
"officers must generally secure a warrant before
conducting  a search" of data on a cell phone.
Riley v. California, 134 S.Ct. 2473, 2485 (2014).
Here, the government has responded to defendant's motion
by stating that defendant's cell phone records were
obtained pursuant to a valid search warrant. Defendant having
offered no argument in reply, the Court finds that this
motion is properly denied.
Motion for disclosure regarding government experts.
seeks an order directing the government to comply with Rule
16(a)(1)(F) and (G) of the Federal Rules of Criminal
Procedure and to provide a written summary to defendant of
any expert testimony to be offered at trial. In response, the
government asserts that it has disclosed to defendant as of
December 23, 2016, notice of its experts and their proposed
opinion testimony and tests. Defendant having offered no
argument in reply, the Court finds that this motion is
properly denied as moot.
Motion to require early disclosure of witness statements.
seeks an order requiring the government to produce for
examination and use copies of any statements of all witnesses
related to the subject matter about which the witness will
testify at trial that are in the government's possession
pursuant Fed. R. Crim. P. 26 and 18 U.S.C. § 3500
(Jencks Act). The government states in response that it has
and will continue to make ongoing disclosures of all known
witness statements, but that it opposes early disclosure of
Jencks Act materials. Although early disclosures are
encouraged, a "district court may not require the
government to produce Jencks Act material relating to one of
its witnesses until after the witness has
testified." United States v. Lewis, 35 F.3d
148, 151 (4th Cir. 1994) (emphasis in original); see also