United States District Court, D. Vermont
DECISION AND ORDER ON MOTION FOR ORDER REQUIRING THE GOVERNMENT TO TIMELY COMPLY WITH F.R.C.P. 12(B)(4)(B) AND RULE 16 (DOC. 628)
Geoffrey W. Crawford, Judge
Defendant has filed a Motion pursuant to Fed. R. Crim. P. 12(b)(4)(B) seeking "notice of the government's intent to use (in its evidence-in-chief at trial) any evidence that the defendant may be entitled to discover under Rule 16." (Doc. 628-1 at 1.) The Motion sets forth 16 topics or areas of potential information or evidence. The defense presses the Government for notice of its intent to introduce evidence with respect to each area.
In response, the Government makes two arguments. The first is that over the course of 15 years of litigation, including a previous trial and a lengthy habeas proceeding, the defense has received access to a mountain of information about the Government's case. Since preparations for the pending retrial commenced in early 2015, the Government has supplemented this information on a continuing basis. The second argument is that it would be unfair to limit the Government's proof at trial almost a year before the scheduled trial date.
I. Scope of Rule 12(b)(4)(B)
Federal Rule of Criminal Procedure 12(b)(4)(B) provides:
At the arraignment or as soon afterward as practicable, the defendant may, in order to have an opportunity to move to suppress evidence under Rule 12(b)(3)(C) request notice of the government's intent to use (in its evidence-in-chief at trial) any evidence that the defendant may be entitled to discover under Rule 16.
Two features of the rule are relevant to the pending dispute. First, the rule brooks no delay. As the reference to arraignment makes clear, the rule requires notice of the Government's intent at the earliest opportunity. But, second, the rule is limited in scope to disclosures which are mandatory under Fed. R. Crim. P. 16 and which are likely to give rise to a suppression motion. The rule addresses a specific problem which is the delay and disruption caused by suppression issues which come up at trial.
As reference to the rule makes clear, the Government's argument that it does not wish to be limited in its proof does not excuse compliance. Rule 12(b)(4)(B) requires early disclosure of the Government's intentions-potentially limiting the Government's case-in order to avoid late filing of suppression motions. Similarly, reference to the rule makes it clear that it is the Government's intent to introduce evidence which must be disclosed. The rule does not require discovery or production. It anticipates notice of evidence which the Government actually plans to use at trial.
The rule extends only to evidence subject to disclosure under Rule 16. It therefore covers: (a) oral statements by the defendant to law enforcement; (b) other written or recorded statements by the defendant which are within the Government's possession or the prosecutor knows about; (c) written records of interrogation by law enforcement; (d) the prior criminal record of the defendant; (e) photographs, objects, books, papers and similar sources of information material to the defense or intended for use in the Government's case or taken or owned by the defendant; (f) reports of testing; and (g) expert witness testimony. See Fed. R. Crim. P. 16(a)(1). In enforcing Rule 12, the court will order timely notice of intent to use any material which meets both criteria: (1) subject to disclosure under Rule 16, and (2) relevant to a potential suppression issue.
II. Specific Requests by the Defense
1. Information obtained during detention, search or seizure
Since "statements" are covered later in request number 7, the court interprets this request as a request arising under Rule 16(a)(1)(E) for physical evidence, photographs, or other evidence obtained through searches or detention. Any such material which the Government intends to use falls within the scope of Rule 12 and the Rule 16(a)(1)(E). The court will order disclosure of intent to use under Rule 12.
The court is aware of the scope of this case which includes multiple crime scenes and events which took place in Vermont, New York, Pennsylvania and Arkansas. The volume of photographs and tangible objects is considerable and disclosure under Rule 12 is effectively disclosure of the Government's exhibit list. But if the parties are going to have a meaningful and timely review of suppression issues, this process must start with a disclosure of evidence. ...