IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA, §

 §

Plaintiff, §

 § Criminal No. 3:06-CR-034-D

VS. §

 §

JOHN WENTZELL DOWNS, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

Defendant John Wentzell Downs (“Downs”) filed six pretrial motions on May 21, 2007 that

the court addresses in this memorandum opinion and order: (1) motion for leave to file motions in

limine immediately prior to trial; (2) motion for hearing on admissibility of evidence of other crimes,

wrongs, or acts; (3) motion for pretrial disclosure of all evidence the government intends to offer

pursuant to Rule 404(B) of the Federal Rules of Evidence; (4) motion to compel disclosure of

exculpatory evidence; (5) motion to produce statements of witnesses (18 U.S.C. § 3500); and (6)

motion for discovery and production pursuant to Rule 16. The government filed a consolidated

response on June 1, 2007.

I

Motion for Leave to File 

Motions in Limine Immediately Prior to Trial

Downs moves the court for leave to file motions in limine immediately prior to trial.

Although the government does not oppose this motion, the court denies it in part. Motions in limine

must be filed no later than the June 7, 2007 deadline for filings witness and exhibit lists.

 

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II

Motion for Hearing 

On Admissibility of Evidence 

Of Other Crimes, Wrongs, or Acts;

Motion for Pretrial Disclosure of 

All Evidence the Government Intends to Offer 

Pursuant to Rule 404(b)

Downs moves for a hearing on admissibility of evidence of other crimes, wrongs, or acts.

He also moves for pretrial disclosure of all Fed. R. Evid. 404(b) evidence that the government

intends to offer. The government states that it does not anticipate offering Rule 404(b) evidence,

and that proof regarding improper drilling of a ferule on a propeller hub does not come within the

scope of Rule 404(b). But it does not oppose these requests, it agrees to give Downs notice of any

Rule 404(b) evidence, and it agrees to present the evidence outside the jury’s presence so that the

court can determine whether a hearing is necessary. Accordingly, the court grants Downs’s motions

for pretrial disclosures and for a hearing before the government offers Rule 404(b) evidence at trial.

Any notice required by Rule 404(b) must be given to Downs no later than one hour before the June

8, 2007 pretrial conference so that Downs can raise issues concerning such evidence at the pretrial

conference, if necessary. 

III

Motion to Compel Disclosure of Exculpatory Evidence

Downs moves the court to compel the government to disclose exculpatory evidence, listing

ten categories of materials that he contends are exculpatory. He also requests that the government’s

attorney be ordered to examine his files, to question government agents, informants, and others

working with the government on the case concerning their knowledge of such evidence or materials,

and file with the court the documentary responses of such persons. The government responds at a

 

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general level that it will comply fully with its obligations under Fed. R. Crim. P. 12(d)(2) and 26.2,

18 U.S.C. §§ 3500, 2510, and 2518(9), Brady v. Maryland, 373 U.S. 83 (1963), and its progeny,

Giglio v. United States, 405 U.S. 150 (1972), and its progeny, and all court orders. It specifically

states in response to Downs’s motion to compel disclosure of exculpatory evidence that it will

comply with these obligations. But it opposes the motion to the extent it exceeds what it is obligated

to produce.

The court expects the government to comply, as it has acknowledged it will, with its

obligations under the Federal Rules of Criminal Procedure, the Jencks Act, 18 U.S.C. § 3500, Brady,

and Giglio. To that extent, Downs’s motion is denied as moot. Otherwise, the request is denied as

exceeding what these authorities require.

IV

Motion to Produce Statements 

of Witnesses (18 U.S.C. § 3500)

Downs moves the court to compel the government to produce witness statements, as defined

by 18 U.S.C. § 3500(e). He also requests that the government be ordered to produce all handwritten

notes, records, or memoranda of all law enforcement agents involved in the investigation.

The government responds that all of Downs’s written statements have already been made

available to him. It states that it will comply fully with 18 U.S.C. § 3500 and make available to

Downs all statements covered by the statute, including transcripts of grand jury testimony. The

government also asserts that it has produced to Downs all memoranda of interviews, and that all

agents have been instructed to preserve any agent notes of interviews, but it opposes producing agent

notes as exceeding Rule 16.

 

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Because the government has agreed to comply with 18 U.S.C. § 3500, the court denies this

component of Downs’s motion as moot. In accordance with the custom followed in the Northern

District of Texas, the government must produce Jencks Act material on the business day preceding

the day on which Downs will begin his cross-examination of the government witness in question.

To the extent Downs seeks greater relief, his motion is denied. In particular, the court denies

his requests that the government be ordered to produce handwritten notes, records, or memoranda

made by law enforcement agents of interviews (other than those the government has agreed to

produce). Except to the extent the government must produce them under the requirements of Brady,

Giglio, Rule 26.2, or the Jencks Act, there is no requirement that the government produce such

materials.

V

Motion for Discovery and Production 

Pursuant to Rule 16

Downs move the court to compel the government to produce six categories of materials

under Rule 16. Some categories are duplicative of requests made in other motions that the court has

already addressed. The government responds that some requested materials have already been

produced, will be produced, or do not exist. Concerning requests already covered by other motions,

it makes the same responses as it does regarding these motions.

The court adheres to its earlier rulings insofar as this motion requests relief that duplicates

that which Downs seeks in one of his other motions. To the extent the government has already

produced or has agreed to produce materials, the court denies the motion as moot. If the government

later learns that materials that it states do not exist are in fact in existence and are subject to

discovery under Rule 16, it will be expected to make prompt production of such materials to Downs.

 

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To the extent Downs has made a request for relief (1) that falls within the scope of Rule 16, (2) that

the court has not already denied in ruling on another of his motions, and (3) that the government has

not already produced, stated that it will produce, or stated that the materials do not exist, the court

grants Downs’s motion. The government must promptly produce any such materials. Nothing in

this ruling alleviates the government’s obligations under Brady or Giglio.

SO ORDERED.

June 5, 2007.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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