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United States v. Elliot

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

April 4, 2017

UNITED STATES OF AMERICA
v.
WILLIAM SHAWN ELLIOT

          ORDER

          TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE

         This 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.

         BACKGROUND

         A 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.

         DISCUSSION

         I. Motion for production of favorable evidence and motion pursuant to Kyles v. Whitley.

         Defendant 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.

         II. Motion to exclude cell phone records.

         Defendant 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.

         III. Motion for disclosure regarding government experts.

         Defendant 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.

         IV. Motion to require early disclosure of witness statements.

         Defendant 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 ...


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