United States District Court, E.D. North Carolina, Southern Division
T. Numbers, II United States Magistrate Judge.
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.
Motion to Sequester Witnesses
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.
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.
Motion for Production of Rule 404(b) Evidence
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.
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.
Motion for Production of Brady Materials
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).
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.
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.
Motion for Production of Jencks Materials
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 ...