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United States v.Mitchell

United States District Court, D. Maine

June 17, 2016

UNITED STATES OF AMERICA
v.
JERMAINE MITCHELL and AKEEN OCEAN

          ORDER ON MOTION FOR DISCOVERY SANCTIONS

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         Concluding that Mr. Mitchell has failed to demonstrate the Government has committed any discovery violations, the Court denies Mr. Mitchell's motion for discovery sanctions to the extent he requests a continuance of a long-scheduled trial; however, the Court defers ruling on whether it will allow a brief voir dire of a Government witness outside the presence of the jury, allowing the parties to present a more concrete context for the Court's ruling

         I. PROCEDURAL BACKGROUND

         On February 12, 2015, a federal grand jury indicted Jermaine Mitchell and Akeen Ocean (Defendants), along with nine others, charging them with engaging in a conspiracy to distribute cocaine base. Indictment (ECF No. 3). Mr. Ocean pleaded not guilty to the charge on February 20, 2015, Entry (ECF No. 74), as did Mr. Mitchell on March 13, 2015. Entry (ECF No. 149). The Defendants' jury trial is set to begin on June 20, 2016, Notice of Hr'g (ECF No. 430), with the jury having been selected on June 7, 2016. Entry (ECF No. 482).

         On June 16, 2016, Mr. Mitchell filed a motion for discovery sanctions against the Government. Mot. for Disc. Sanctions (ECF No. 495) (Def.'s Mot.). The Government filed its objection to Mr. Mitchell's motion on June 17, 2016. Gov't's Obj. to Def. Mitchell's Mot. for Sanctions (ECF No. 497) (Gov't's Opp'n).

         II. STATEMENT OF FACTS

         On March 16, 2015, Mr. Mitchell requested discovery pursuant to Federal Rule of Criminal Procedure 16.[1] Def.'s Mot. Attach. 1 Disc. Letter, at 1 (ECF No. 495) (Disc. Letter). Included in his discovery request was the following:

(D) Defendant respectfully requests the government to produce documents relating in any way whatsoever to reports of physical examination and/or scientific tests or experiments within the purview of Rule 16(a)(1)(D).
(E) Defendant requests, pursuant to Rule 16(a)(1)(E), that the government disclose a written summary of testimony that the government intends to introduce pursuant to Fed. Rules of Evidence 702, 703, or 705.

Id. at 1. In response to Mr. Mitchell's discovery request, the Government produced a high volume of material, including data from several telephones that purportedly belonged to Mr. Mitchell. Def.'s Mot. at 2. In the discovery were voluminous records from the AT&T telephone company, including records relating to one of Mr. Mitchell's alleged cellular telephones. Gov't's Opp'n at 1. Additionally, the Government produced the results of search warrants on nine of Mr. Mitchell's alleged cellular telephones, and in total the telephone record discovery regarding Mr. Mitchell consists of several hundred pages. Id.

         The telephones were received by Government agents on or about September 7, 2013, and were subjected to forensic examination during September, 2014. Def.'s Mot. at 2. As a result of the forensic examination, the forensic examiner generated "Extraction Reports, " consisting of lists of contacts and some text messages, which the Government disclosed to the Defendants in a timely manner. Id. Using some of the data from one of the telephones, the Government has conducted an analysis of the data using unidentified computer software, and as a result has produced a chart (Exhibit 37) that purports to show the connection between Mr. Mitchell's telephone and the telephones of other alleged members of the alleged conspiracy. Id.; Def.'s Mot. Attach. 2 Gov't Ex. 37 (ECF No. 495) (Ex. 37). The Government has not produced a report that identifies who performed the analysis that created Exhibit 37, the qualifications of that person, the identification of the forensic tools used to perform the analysis, the specifications of the software used to perform the analysis, or any information concerning the accuracy of the software. Id.

         Exhibit 37 was disclosed to Mr. Mitchell as part of the Government's exhibits in a mailing on June 9, 2016, received by Mr. Mitchell on or about June 13, 2016, one week before the scheduled start of trial. Id.; Notice of Hr'g (ECF No. 430).

         III. POSITIONS OF THE PARTIES

         A. Jermaine ...


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