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Unite States v. Lee

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

July 3, 2019

United States of America,
v.
Austin Kyle Lee, Defendant.

          ORDER

          Robert T. Numbers, II United States Magistrate Judge.

         In October 2018, a federal grand jury indicted Defendant Austin Kyle Lee on several gun and drug-related charges. In anticipation of trial, Lee has filed motions seeking the disclosure of more documents and information, as well as asking the court to enter an order sequestering witnesses at trial. The court will grant Lee's requests in part and deny them in part.

         I. Motion to Sequester Witnesses

         Lee seeks to exclude all of the Government's witnesses from the courtroom during trial. The Government does not oppose the sequestration of its witnesses, but requests that the court sequester Lee's witnesses as well.

         The Federal Rules of Evidence require that, upon the request of a party, the court exclude witnesses from trial so that they cannot hear the testimony given by other witnesses. Fed.R.Evid. 615. But the court may not exclude certain categories of people, including “a party who is a natural person” or a designated officer or employee of a party that is not a natural person. Id. at 615(a), (b). The court thus grants Lee's Motion for Sequestration (D.E. 64) and orders that all witnesses that may be called by Lee and the Government, other than the defendant and a case agent designated by the Government, are barred from the courtroom during trial. The Government must designate its case agent no later than the start of trial.

         II. Motion for Production of Rule 404(b) Evidence

         Lee seeks an order requiring the Government to give notice promptly of its intent to introduce evidence that falls under Rule 404(b) of the Federal Rules of Evidence. D.E. 59. But under Rule 404(b)(2), a defendant is only entitled to receive “reasonable notice of the general nature of any [Rule 404(b)] evidence that the prosecutor intends to offer at trial….” Fed.R.Evid. 404(b)(2)(A). The Government contends that it will comply with the Rule's requirement to provide reasonable notice. D.E. 67.

         The court grants Lee's request for disclosure of Rule 404(b) information (D.E. 59) in part and denies it in part. The Government must notify Lee of the general nature of any Rule 404(b) evidence it intends to offer at trial no later than seven days before the scheduled trial date.

         III. Motion for Production of Brady Materials

         Lee seeks information that he claims he is entitled to under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. D.E. 60. Under Brady, the Government has an affirmative obligation to produce evidence that is “both favorable to an accused and ‘material to either guilt or punishment.'” United States v. Bagley, 473 U.S. 667, 674 (1985); Brady, 373 U.S. at 87. The Government must produce this evidence “in time for its effective use at trial.” United States v. Smith Grading & Paving, Inc., 760 F.2d 527, 532 (4th Cir. 1985); see United States v. Jeffers, 570 F.3d 557, 573 (4th Cir. 2009).

         The Government acknowledges its obligations to provide Brady materials in a timely manner. D.E. 67 at 3-4. And the Government represented to the court that it has already produced over 635 pages of materials and video evidence to Lee. Id. It maintains that it will produce additional relevant documents as this matter moves forward; and will produce criminal histories, plea agreements, promises of consideration, and inconsistent statements, if any, “in time to put the information to effective use at trial.” Id. at 4.

         Given the Government's actions to date and its representations to the court, “[t]he court credits the government's assertion that it will disclose all exculpatory and impeachment evidence in time for its effective use at trial, ” United States v. Howard, No. 5:12-CR-9-D, 2012 WL 2525625, at *3 (E.D. N.C. June 29, 2012) (citing Smith Grading, 760 F.2d at 532). Thus, the motion seeking early disclosure of Brady materials (D.E. 60) is granted in part and denied in part. The Government must produce Brady materials on a prompt, ongoing basis and must disclose all Brady materials no later than seven days before the scheduled trial date.

         IV. Motion for Production of Jencks Materials

         Lee requests that the court order the Government disclose to witness statements covered by the Jencks Act, 18 U.S.C. § 3500, before trial or, at the latest, after the Government's witnesses have completed their testimony. (D.E. 61). But the Jencks Act provides that “no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena [sic], discovery, or inspection until said witness has testified on direct examination in the trial of the case.” 18 U.S.C. § 3500(a). The Fourth Circuit Court of Appeals has explained that because of the statute's language, a “district court may ...


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