Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cr-00495-WDM

Document 305

Filed 04/19/2006

Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 03-cr-00495-WDM-all UNITED STATES OF AMERICA, Plaintiff, v. 1. FREDERICK D. DEBERRY, 2. RODGERICK L. LACKEY, a/k/a Roderick Lackey, 3. PAUL S. TALIFERO, a/k/a Paul S. Taliaferro, Defendants.

GOVERNMENT'S CONSOLIDATED RESPONSE TO DEFENDANTS': MOTION TO SUPPRESS (#189, 190) MOTION TO STRIKE TESTIMONY (#191) MOTION TO COMPEL DISCLOSURE (#294) MOTION FOR DISCOVERY (#295) MOTION FOR NOTICE OF 404(b) EVIDENCE (#296) MOTION FOR BRUTON AND COCONSPIRATOR STATEMENTS (#297) MOTION TO SEVER PARTIES (#298)

The United States of America, by and through Joshua Stein, Assistant United States Attorney, hereby responds to defendants' latest pretrial motions (#189, 190, 191, 294, 295, 296, 297, 298) as follows:

Case 1:03-cr-00495-WDM

Document 305

Filed 04/19/2006

Page 2 of 18

I. Motion to Suppress (#189, 190) and Motion to Strike Testimony (#191) A. Relevant Facts For a fuller factual background to the entire assault, see, e.g., Government's Reply to Defendants' Motion to Dismiss Superseding Indictment (#157), incorporated herein by reference. The government has previously replied to these two motions in its Response at docket #210. The government provides an updated but largely similar response below for the convenience of the Court and parties. In October 2003, the government made its initial disclosure of all the documents in its possession, which included brief memorandums by the correctional officers involved, such as Lt. Skowronek and CO Griffiths. None of the memorandums referenced any statements by any of the defendants. In preparation for the trial of DeBerry scheduled for October 18, 2004, the government interviewed several witnesses on October 7, 2004, including Lt. Skowronek and CO Griffiths. These two officers had not been previously interviewed about this attempted murder by either prosecutors or agents. During the interviews, the officers disclosed for the first time that defendants Lackey and DeBerry had made statements after the attempted murder took place. See Exhibit 1, Supplemental Statement by Lt. Skowronek; Ex. 2, Supplemental Statement by CO Griffiths. The government directed the officers to immediately write supplemental statements, which were provided the next day to defendants, less than 24 hours after the government discovered their existence.

Page 2 of 18

Case 1:03-cr-00495-WDM

Document 305

Filed 04/19/2006

Page 3 of 18

There were two sets of statements. First, in response to a question from Lt. Skowronek of "What was going on?", DeBerry replied that he had been microwaving food and the victim Wheelock had sprayed the microwave with chemicals. Second, while DeBerry and Lackey were being escorted from the cellblock where the attempted murder took place, and some time after the brief exchange between Lt. Skowronek and DeBerry, Lackey and DeBerry talked amongst themselves, laughing about the assault and making statements to the effect that staff were wasting their time with the incident and nothing was going to happen to them. These second statements were not in response to questioning and were solely a result of a conversation between the two defendants. B. Defendants' Motion to Strike Testimony Pursuant to Rule 16 (#191) Defendants seek to strike testimony about the statements of Lackey and DeBerry, contending that disclosure was not timely. The Court should deny their motion for several reasons. First, defendants have the burden on this motion and they do not point to any specific provision of Rule 16 that the government allegedly violated. Second, the government provided the statements to defendants within 24 hours of learning of them, a timely response. Third, Lackey and DeBerry only have standing to seek to strike their own statements (and Talifero would have no standing to join in the motion at all) because the statements of co-defendants and co-conspirators are not discoverable under Rule 16. See, e.g., United States v. Byrne, 83 F.3d 984, 991

Page 3 of 18

Case 1:03-cr-00495-WDM

Document 305

Filed 04/19/2006

Page 4 of 18

(8th Cir. 1996) (co-defendants statements not discoverable under Rule 16); United States v. Tarantino, 846 F.2d 1384, 1418 (D.C. Cir. 1988) (co-conspirator statements not discoverable under Rule 16). Fourth, Rule 16(a)(1)(A), presumably the basis of defendants' motion, compels discovery only of statements by a defendant in response to interrogation by a government agent. Thus the second set of statements ­ the conversation between DeBerry and Lackey ­ are categorically not subject to disclosure under Rule 16, while the first set of statements are arguably not discoverable. Fifth, and most importantly, the standard for disclosure is that it be made such that defendants had time to reasonably make use of the information. See United States v. Gonzalez-Montoya, 161 F.3d 643, 649-50 (10th Cir. 1998) (in context of late Brady disclosure, no violation because defendant received evidence in time to use it to impeach witness). No trial dates are currently set ­ defendants have had this discovery for almost 18 months. Moreover, defendants do not (and cannot) allege any prejudice from the timing of the disclosure. The Court should accordingly DENY on the merits defendants' Motion to Strike (#191). C. Defendants' Motion to Suppress (#189) 1. First Statements by DeBerry: General On-the-Scene Questioning Does Not Require Miranda Warnings The lone question to DeBerry of "What was going on?" does not constitute interrogation for purposes of Miranda. "General on-the-scene questioning as to

Page 4 of 18

Case 1:03-cr-00495-WDM

Document 305

Filed 04/19/2006

Page 5 of 18

facts surrounding a crime or other general questioning of citizens in the factfinding process" does not trigger Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 477-78 (1966). This rule applies as well in a prison context. See, e.g., Vickers v. Stewart, 144 F.3d 613, 615 (9th Cir. 1998) (no interrogation when prison guard pulled defendant from scene of fire and asked what happened); Garcia v. Singletary, 13 F.3d 1487, 1491-92 (11th Cir. 1994) (no interrogation when prison officer asked why defendant started fire); Cervantes v. Walker, 589 F.2d 424, 426-27 (9th Cir. 1978) (no interrogation when prison guard showed defendant contraband found in his cell to identify it). The Tenth Circuit addressed very similar circumstances in United States v. Scalf, 725 F.2d 1272 (1984). In Scalf, a prison guard asked an inmate a series of questions right after an inmate-on-inmate stabbing incident. Among other questions, the guard asked what had happened and what the inmate did with the knife. The Tenth Circuit held that this line of questioning was the sort of "on-thescene" inquiry allowable under Miranda and did not constitute interrogation. Id. at 1276. The reason for this exception for general on the scene questioning can be seen by examining the underlying rationale to the Miranda rule in the first place, as the Scalf court did. The Miranda Court was primarily focused on the psychological coercion employed by law enforcement interrogators when they isolated suspects in non-familiar settings (usually a station-house) and used such

Page 5 of 18

Case 1:03-cr-00495-WDM

Document 305

Filed 04/19/2006

Page 6 of 18

techniques as "coached confessions" and good-cop/bad-cop questioning, often in conjunction with extended detention. Miranda v. Arizona, 384 U.S. 436, 457 (1966) ("[i]n each of the cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures"). The concern was "that the `interrogation environment' created by the interplay of interrogation and custody would subjugate the individual to the will of his examiner and thereby undermine the privilege against compulsory selfincrimination." Rhode Island v. Innis, 446 U.S. 291, 299 (1980) (citations omitted) (emphasis added). A lone question of "What was going on?" does not implicate the concerns of Miranda and Innis. Just as in Scalf, it is an allowable on-the-scene inquiry that does not constitute interrogation triggering Miranda warnings for the response to be admissible. 2. Second Statements: Conversation Between DeBerry and Lackey Does Not Implicate Miranda and Thus No Warnings Were Necessary The conversation between DeBerry and Lackey was just that ­ a conversation between the two of them, carried on freely, and overheard by correctional officers. Miranda warnings need be given only where there is interrogation by the government. Rhode Island v. Innis, 446 U.S. 291, 300 (1980). Volunteered statements do not require warnings: "Volunteered

Page 6 of 18

Case 1:03-cr-00495-WDM

Document 305

Filed 04/19/2006

Page 7 of 18

statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." Miranda, 384 U.S. at 478. Defendants contend that because DeBerry responded at one point to a question from a correctional officer, the later conversation at a different location between DeBerry and Lackey is therefore somehow legally a fruit of the prior unrelated question to DeBerry. As a factual matter this is incorrect ­ the brief exchange between Lt. Skowronek and DeBerry was separated in time and location and has no logical relationship to the later conversation between DeBerry and Lackey. The Supreme Court has found no interrogation for purposes of Miranda in far more compelling circumstances. In Arizona v. Mauro, 481 U.S. 520 (1987), the defendant was being held in a police station. Officers admitted the defendant's wife into the room and placed a tape recorder in the middle of the table. The defendant made incriminating statements which were recorded. The Court ruled that the "tape recording of the conversation between Mauro and his wife shows that Detective Manson asked Mauro no questions about the crime or his conduct. Nor is it suggested ­ or supported by any evidence ­ that Sergeant Allen's decision to allow Mauro's wife to see him was the kind of psychological ploy that properly could be treated as the functional equivalent of interrogation." Id. at 527. The Court noted the absence of "the atmosphere of oppressive police conduct". Id. at 527n5. Moreover, "[o]fficers do not interrogate a suspect simply

Page 7 of 18

Case 1:03-cr-00495-WDM

Document 305

Filed 04/19/2006

Page 8 of 18

by hoping that he will incriminate himself." Id. at 529. In the instant case, there is no evidence that the correctional officers expected, hoped, or even dreamed that the two defendants would boast amongst themselves about the crime due to an earlier, single, unrelated question which was answered by only DeBerry. The Court should therefore DENY on the merits defendants' Motion to Suppress (#189). II. Defendants' Motion to Compel Disclosure of Giglio Information (#294) The government will comply with its obligations under Giglio ­ the Court has already ordered such discovery in paragraph I(C) of the standard Discovery Conference Memorandum and Order entered for all three defendants. See doc. nos. 24, 28, 30. The Motion seems to use vague and overly broad language that is difficult to interpret. To the extent defendants are requesting discovery beyond the dictates of Giglio, the government opposes the request. Because the Court has already ordered the disclosure of Giglio material and defendant's Motion is otherwise vague, the Court should DENY as moot the Motion (#294).

III. Defendants' Motion for Discovery re: Superseding Indictment (#295) As a general proposition, "[t]he measure of discovery permitted by the Rules of Criminal Procedure is not intended to be as broad as in a civil case." United States v. Ross, 511 F.2d 757 (5th Cir. 1975) (internal quotation omitted). There is no constitutional right to discovery, except for the limited requirements of

Page 8 of 18

Case 1:03-cr-00495-WDM

Document 305

Filed 04/19/2006

Page 9 of 18

Brady v. Maryland and its progeny. Weatherford v. Bursey, 429 U.S. 545, 559 (1977); United States v. Kendall, 766 F.2d 1426, 1440 (10th Cir. 1985). Discovery in a criminal case is limited to that required by Rule 16 and other Federal Rules of Criminal Procedure, statutory provisions such as the Jencks Act (18 U.S.C. § 3500), the qualified right to disclosure of confidential informants under Rovario v. United States, and the right to material exculpatory evidence under Brady. See generally Moore's Federal Practice, § 616.02 et seq. (3rd ed. 2003 update). If discovery is not mandated by these authorities, the government has no obligation to provide it. The number refers to the number of the request in defendant's motion: 1. Defendant requests written records of any statement made by him. This request is partially covered by paragraph I(A)(1) of the Discovery Order. The government has already made full disclosure of all statements of which it has knowledge. However, defendant is legally entitled only to his written statements and "oral statements may be discovered only when they are made in response to interrogation by [a] person then known to the defendant to be a government agent." United States v. McClure, 734 F.2d 484, 492-93 (10th Cir. 1984). Defendants' request for more extensive disclosure is without a legal basis and the government opposes it. In particular, defendant requests copies of agents' notes. Unless an agent's notes were recorded contemporaneously with the interview of a witness and are a substantially verbatim transcription of the witness's statements, they are not discoverable. United States v. Pierce, 893

Page 9 of 18

Case 1:03-cr-00495-WDM

Document 305

Filed 04/19/2006

Page 10 of 18

F.2d 669, 674-675 (5th Cir. 1990). Furthermore, some investigators routinely destroy their rough notes after the preparation of formal reports, and the Tenth Circuit has explicitly sanctioned this practice. United States v. Shovea, 580 F.2d 1382, 1390 (10th Cir. 1978); see also United States v. Spencer, 618 F.2d 605, 606-7 (9th Cir. 1980) (rejecting preservation requirement as an enormous and unreasonable administrative burden). 2. Defendant requests what is in essence Brady material. This

request is covered by paragraph I(B) of the Discovery Order. The government has already made full disclosure. 3. Defendant requests any evidence of drug abuse or mental

deficiency of any witness or any person who was involved in the investigation of the case. The government has no knowledge that a witness it intends to call at trial has a drug or alcohol abuse problem. The government does not object to disclosure of evidence of drug use of which it has knowledge of a witness contemporaneous to either the charged offenses or the time of trial. The government objects to this request to the extent defendant is seeking wideranging discovery of the medical files of all persons involved in the case. The privacy of medical and mental treatment records are protected by a number of statutes, including HIPAA and the Privacy Act. Defendant provides no legal basis for his request, nor does he make any showing of relevance. The government objects to defendant's request for information concerning evidence of psychiatric treatment relating to its witnesses. This request constitutes a fishing expedition

Page 10 of 18

Case 1:03-cr-00495-WDM

Document 305

Filed 04/19/2006

Page 11 of 18

into the private affairs of potential government witnesses, to include intruding into domains that are protected by State statutes and recognized as privileged in many courts. See United States v. Glass, 133 F.3d 1356, 1360 (10th Cir. 1998) (recognizing the availability of the psychotherapist-patient privilege). Becoming a witness should not subject a person to an unrestrained violation of his or her personal privacy. 4. The defendant has no right at this time to a list of witnesses the

government intends to call in its case-in-chief, much less any potential witness. United States v. Metropolitan Enterprises, Inc., 728 F.2d 444, 451 (10th Cir. 1984). Moreover, the government has already provided a list of the witnesses it intends to call at trial. See doc. no. 188. The government will provide an updated list consistent with the Court's trial procedures. The government is not sure what a list of "nonprospective" witnesses would be. Moreover, the identity of any prospective witness of which the government is currently aware has been turned over in the voluminous discovery provided. 5. Defendant requests disclosure of the names, addresses, and

reports of expert witnesses. This request is covered by paragraph I(A)(6) of the Discovery Order. The government has previously disclosed such information in its expert notices. 6. Defendant requests disclosure of results of scientific tests. This

request is covered by paragraph I(A)(5) of the Discovery Order. The government does not object to this request as long as defendant recognizes his burden of

Page 11 of 18

Case 1:03-cr-00495-WDM

Document 305

Filed 04/19/2006

Page 12 of 18

reciprocal discovery. At this time, the government does not have any such results. If any are obtained, they will be promptly turned over. 7. Defendants seek copies of all law enforcement reports. The

government objects to this request. Such reports are categorically not discoverable. Rule 16(a)(2). Moreover, all law enforcement reports in the hands of the government have already been provided. 8. Defendant requests transcripts of grand jury witnesses. The

government has already provided such transcripts. Moreover, the Jencks Act, which governs this issue, does not require disclosure of witness statements until after that witness has testified on direct examination. 18 U.S.C. § 3500; United States v. Mavrokordatos, 933 F.2d 843, 847-48 (10th Cir. 1991). 9. Defendants seek discovery of any oral statement made by any

person in connection with this case, with no citation legal authority. Defendants' request is well beyond the scope, and directly contrary to, Rule 16(a)(1), Rule 16(a)(2), and the Jencks Act. The government opposes this request. 10. All physical evidence in this case is available for review. The

government does not object to this request. 11. 12. This request appears to be duplicative of #8 above. Defendant requests disclosure of all agreements, promises, etc.,

between the government and its witnesses, as provided by United States v. Giglio, 405 U.S. 105 (1972). The Court has already ordered such discovery in paragraph I(C) of the standard Discovery Conference Memorandum and Order

Page 12 of 18

Case 1:03-cr-00495-WDM

Document 305

Filed 04/19/2006

Page 13 of 18

entered for all three defendants. See doc. nos. 24, 28, 30. Furthermore, the request appears to be duplicative of defendants' Motion (# 294). 13. Defendant provides no legal basis for his request for internal

communications regarding prosecutive decisions in this case. The government objects to this request. 14. Defendant has no legal entitlement to pretrial discovery of the

criminal records of prospective government witnesses, particularly where the government has no knowledge of such criminal history. United States v. Young, 20 F.3d 758, 764-65 (7th Cir. 1994) (rejecting affirmative duty of government to investigate and disclose criminal records of its witnesses). The government has already provided the criminal history of the three defendants and the victim, as well as the prospective witness Randall Morse. 15. This request is duplicative of #12 above and Motion (#294). Any

financial arrangements linked to assistance in this particular case with a witness will be disclosed. There are none at this time. 16. Defendant provides no legal basis for his wholesale request for

the personnel files of government employees. Such files are protected by statute, including the Privacy Act. The government objects to this request. The approved method for discovery, as proposed by the Department of Justice and upheld by the Ninth Circuit, is that the appropriate employer agency is tasked with examining the personnel files of anticipated government witnesses and then notifying the government prosecutor of any potential Brady material. United

Page 13 of 18

Case 1:03-cr-00495-WDM

Document 305

Filed 04/19/2006

Page 14 of 18

States v. Herring, 83 F.3d 1120, 1121 (9th Cir. 1996), citing United States v. Jennings, 960 F.2d 1488, 1492 & n.3 (9th Cir. 1992). The government prosecutor must then make the final determination as to whether the material should be disclosed. Id. The prosecutor, however, is not required to conduct the examination personally. Herring, 83 F.3d at 1121; Jennings, 960 F.2d at 1491. In accordance with Herring, the government will ask the appropriate agency to review the personnel files of the government employees/witnesses that the government intends to call at trial. Unless the files contain exculpatory information, however, they are not discoverable. United States v. Silkwood, 893 F.2d 245, 248 (10th Cir. 1989); United States v. Henthorn, 931 F.2d 29, 31 (9th Cir. 1991). 17. Defendant requests the entire prison file for Randall Morse. The

government opposes this request. The Court denied a similar request for the entire files of the other victim Wheelock and the co-defendants. Defendant is only entitled to that information from the file which is materially exculpatory, i.e. subject to Brady or Giglio. The government will review the file for Brady and Giglio material. Given that defendant is charged in Count Four with physically threatening the victim, turning over material which would provide information that could be used to ascertain the location of the victim and his family poses obvious security concerns. Some of defendant's specific requests seem entirely irrelevant, e.g. Morse's educational certificates. Moreover, defendant has not made the required showing of materiality. Rule 16(a)(1)(E); United States v.

Page 14 of 18

Case 1:03-cr-00495-WDM

Document 305

Filed 04/19/2006

Page 15 of 18

Cadet, 727 F.2d 1453, 1468 (9th Cir. 1984). Courts have denied discovery in far closer cases. The Tenth Circuit has held that a defendant is not necessarily entitled to much information from his own prison file, e.g. he is not entitled to his own PSI from a prior conviction. United States v. Maranzino, 860 F.2d 981, 986 (10th Cir. 1988). 18. Defendant requests the prior criminal record of Randall Morse.

The government does not oppose this request. 19. 20. This appears to be duplicative of #15 above. This appears to be duplicative of several requests above, as well

as another Motion (#294). 21. 22. 23. This appears to be duplicative of #3 above. This appears to be duplicative of #8 and #11 above. Defendant requests all investigative reports related to a complaint

by defendant that he had been assaulted by BOP personnel post-indictment in this case. At one time, BOP was investigating the complaint. The government is not aware of the outcome of that investigation. The government will determine whether any such reports exist. However, such reports are categorically not discoverable pursuant to Rule 16(a)(2). 24. Relates to #23 above.

As detailed above, the Court should GRANT IN PART and DENY IN PART the instant Motion (#295).

Page 15 of 18

Case 1:03-cr-00495-WDM

Document 305

Filed 04/19/2006

Page 16 of 18

IV. Defendant's Motion for Notice of 404(b), 608, and 609 Evidence (#296) The government has previously provided such notice. See doc. no. 135. The Court should therefore DENY as moot the Motion (#296). V. Defendant's Motion for Co-Conspirator Statements et al. (#297) At this time the government is not aware of any statements that it would seek to introduce as co-conspirator statements under Rule 801(d)(2)(E). Should the government later became aware of such statements, the government will notify the defendants. Until such statements are identified, it is not possible to forecast whether an evidentiary hearing would be required. The Court should therefore DENY as moot the Motion (#297). VI. Defendant's Motion to Sever Parties (#298) Defendant seeks to sever himself from his co-defendants for the trial that had been set for October 18, 2004. However, the Court had already ordered each defendant severed from the other and the 2004 trial date was for DeBerry only ­ no trial dates had been set for the other two defendants. The Court should therefore DENY the Motion (#298) as moot.

Respectfully submitted, WILLIAM J. LEONE United States Attorney

By: s/ Joshua Gramling Stein JOSHUA GRAMLING STEIN

Page 16 of 18

Case 1:03-cr-00495-WDM

Document 305

Filed 04/19/2006

Page 17 of 18

Assistant United States Attorney U.S. Attorney's Office 1225 17th St., Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Fax: (303) 454-0403 Email: [email protected] Attorney for the United States

Page 17 of 18

Case 1:03-cr-00495-WDM

Document 305

Filed 04/19/2006

Page 18 of 18

CERTIFICATE OF SERVICE I hereby certify that on this 19th day of April, 2006, I electronically filed the foregoing GOVERNMENT'S CONSOLIDATED RESPONSE with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addressed:
· ·

·

· ·

James A. Castle [email protected] [email protected] David M. Conner [email protected] [email protected];[email protected] Michael J. Norton [email protected] [email protected];[email protected];[email protected] Randy S. Reisch [email protected] [email protected] Joshua Gramling Stein [email protected] [email protected];[email protected]

and I hereby certify that I have mailed or served the document or paper to the following non- CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the non-participant's name: None

s/ Joshua Gramling Stein JOSHUA GRAMLING STEIN Assistant United States Attorney U.S. Attorney's Office 1225 17th St., Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Fax: (303) 454-0403 Email: [email protected] Attorney for the United States

Page 18 of 18