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United States v. Turner

United States District Court, D. Nebraska

January 12, 2018



          Cheryl R. Zwart, United States Magistrate Judge.

         Defendant 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 denied.


         Defendant 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.

         The 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.

         Based 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 No. 26-2).

         Defendant 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).[1]


         A) Motion in Limine-Testimony of and Evidence Regarding Amanda G. Kuhn.

         Defendant's 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 (1963).

         1) Plea Agreements.

         As 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).

         Assuming 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).

         As to 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 ...

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