UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

VS.

KENNETH REVEN McCLAIN,

Defendant.

)

)

)

) CRIMINAL ACTION NO.

)

) 3:05-CR-332-G

)

) ECF

)

MEMORANDUM OPINION AND ORDER

Before the court are nine pretrial motions that the defendant filed on April 14,

2006. They are:

1. Motion for Disclosure and Notice of Evidence of Other

Crimes, Wrongs or Acts (Rule 404B) and Brief in Support

Thereof;

2. Motion for Production of Evidence Favorable to the

Accused and Brief in Support Thereof;

3. Motion for Disclosure of Records or Reports Relating to

Facts or Data Underlying Expert Opinions and

Incorporated Memorandum of Law;

 

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4. Motion for Production of Statements of Witnesses (18

U.S.C. § 3500) and Brief in Support Thereof;

5. Motion to Determine Admissibility of Statements or

Confessions of Defendant;

6. Motion to Disclose Electronically Recorded Material;

7. Motion to Disclose Grants of Immunity and Brief in

Support Thereof;

8. Motion to Disclose Plea Bargain Agreements and Brief in

Support Thereof; and

9. Motion to Request Preliminary Hearing on the

Admissibility of Evidence of Other Crimes, Wrongs or Acts

and Brief in Support Thereof

(collectively referred to as “Motions”).

The government responded to the Motions on April 21, 2006. Additionally,

the government made a request for reciprocal discovery pursuant to Rule 16(b) and

26.2 of the Federal Rules of Criminal Procedure. Government’s Response to Pre-Trial

Motions and Request for Reciprocal Discovery (“Response”) at 5.

The defendant’s motions for production of evidence favorable to the accused,

to disclose grants of immunity, and to disclose plea bargain agreements (Nos. 2, 7,

and 8 above) are GRANTED to the extent authorized by FED. R. CRIM. P.

12(b)(4)(B), 16, and 26.2, 18 U.S.C. § 3500, Brady v. Maryland, 373 U.S. 83 (1963)

and its progeny, and Giglio v. United States, 405 U.S. 150 (1973) and its progeny, but

are otherwise DENIED.

 

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The government does not oppose the defendant’s motions for disclosure of

records or reports relating to facts or data underlying expert opinions, for production

of statements of witnesses (18 U.S.C. § 3500), to determine admissibility of

statements or confessions of defendant, and to disclose electronically recorded

material (Nos. 3, 4, 5, and 6 above). Accordingly, these motions are GRANTED.

Because the government does not oppose the defendant’s motions for

disclosure and notice of evidence of other crimes, wrongs, or acts (Rule 404(b)) and

to request preliminary hearing on the admissibility of evidence of other crimes,

wrongs or acts (Nos. 1 and 9), they too will be GRANTED. However, the

government, in its response, states that it “does not plan on offering any evidence

related to extraneous offenses without first having a hearing outside the presence of

the jury to determine the admissibility of such evidence.” Response at 4. At this

time, there is no reason for a hearing to be set. If, at any time before or during the

trial, the government decides to offer evidence relating to extraneous offenses, it shall

first request a hearing outside of the presence of the jury to determine the

admissibility of such evidence.

The government requests that the defendant “provide reciprocal discovery

pursuant to Rule 16(b) and 26.2 of the Federal Rules of Criminal Procedure.” 

Response at 5. The government’s request is GRANTED to the extent authorized by

FED. R. CRIM. P. 16(b) and 26.2, but is otherwise DENIED.

 

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SO ORDERED.

May 10, 2006.

 

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