United States District Court, D. Nebraska
MEMORANDUM AND ORDER
R. Zwart, United States Magistrate Judge.
has moved in limine to exclude evidence regarding Amanda G.
Kuhn and any testimony this witness may provide on behalf of
the government, (Filing No. 22), and for an order permitting
Defendant to subpoena the Lincoln Police Department's
records for its investigation of Kimberly E. Bridges, (Filing
No. 26). For the reasons stated below, these motions will be
is charged with knowingly and intentionally possessing with
the intent to distribute five grams or more of
methamphetamine on August 9, 2017. (Filing No. 1). He
initially appeared before the undersigned magistrate judge on
November 15, 2017. A case progression order was entered which
set a January 16, 2018 trial date, and a pretrial motion
deadline of December 15, 2017.
charges against Defendant arise from the August 9, 2017
arrest of both Defendant and Kimberlie Bridges by the Lincoln
Police Department (“LPD”). Defendant states both
arrests were based on the same facts, but unlike Defendant,
Bridges was charged with only possession of a controlled
substance, for which she is never faced federal charges, and
the state charges against her were dismissed.
on the disparity in charges filed against Defendant and
Bridges, Defendant believes the LPD records of its
investigation against Bridges will include exculpatory
information relevant to the charges against Defendant and
records useful to impeach of the government's witnesses.
(Filing No. 27). To that end, Defendant requests leave to
subpoena the LPD Records Custodian for production of
“all investigative reports regarding Kimberlie E.
Bridges regarding her arrest on August 9, 2017, ” and
the subsequent investigation related to that arrest. (Filing
also claims that just prior to 5:00 p.m. on December 14,
2017, the government emailed to defense counsel four
additional discovery documents regarding the testimony of
Amanda G. Kuhn. Defendant states these documents were
available to the government as early as June 30, 2017. The
documents included plea agreements signed by Kuhn, (Filing
No. 32 at CM/ECF p. 2), and reports of her proffer
interviews. The interview statements were not transcribed or
verbatim, and they were not written, signed or adopted by
Kuhn. (Filing No. 32, at CM/ECF p. 3).
Motion in Limine-Testimony of and Evidence Regarding Amanda
motion in limine states documents regarding Kuhn were
untimely disclosed under Rule 16, Defendant was prejudiced by
this delay, and Kuhn's testimony and any evidence about
her must be excluded at trial. (Filing No. 22).
Defendant's brief further states the government's
December 14, 2017 document disclosure was untimely under the
Jencks Act and Brady v. Maryland, 373 U.S. 83
noted by the government, Kuhn's plea agreements are Rule
16 materials. The government argues that even assuming it
violated the disclosure timing requirements of Rule 16,
Kuhn's testimony cannot be excluded as untimely disclosed
because Defendant has failed to show any resulting prejudice.
(Filing No. 32, at CM/ECF p. 3).
a discovery violation occurred, before imposing a sanction
for untimely disclosure, the court must consider: 1) whether
the Government acted in bad faith and why production was
delayed; 2) whether Defendant was prejudiced; and (3) whether
any lesser sanction is appropriate to secure the
government's timely compliance in the future. United
States v. Altman, 507 F.3d 678, 680 (8th Cir. 2007).
the issue of prejudice, Defendant argues that as to documents
first disclosed on December 14, 2017, he was unable to review
those documents and then timely file pretrial motions before
the December 15, 2017 deadline. But Defendant never moved to
continue the pretrial motion deadline, and he has not
explained what motions he would have filed had Kuhn's
plea agreements been received earlier. Kuhn's plea
agreements were disclosed on December 14, 2017, more than a
month before the then-scheduled trial, and that trial has now
been continued to conduct an evidentiary hearing on
Defendant's motion to suppress. Under such circumstances,
Defendant cannot show he is unable to adequately plan and
prepare for trial due to the untimely disclosure of
Kuhn's plea agreements. Altman, 507 F.3d at 680
(holding district court abused its discretion by excluding
untimely disclosed testimony where the defense had four days
to prepare). And even ...