United States v. Dailey

155 F.R.D. 18, 1994 U.S. Dist. LEXIS 6758, 1994 WL 197925
CourtDistrict Court, D. Rhode Island
DecidedMay 17, 1994
DocketCr. No. 93-098 P
StatusPublished
Cited by2 cases

This text of 155 F.R.D. 18 (United States v. Dailey) is published on Counsel Stack Legal Research, covering District Court, D. Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Dailey, 155 F.R.D. 18, 1994 U.S. Dist. LEXIS 6758, 1994 WL 197925 (D.R.I. 1994).

Opinion

MEMORANDUM AND ORDER

PETTINE, Senior District Judge.

Defendant Leo Dailey has filed a motion to be relieved from the obligations of this court’s uniform discovery order. Mr. Dailey argues that this court has no authority to order him to disclose expert reports and trial exhibits in advance of trial unless he initiates a request for discovery from the government. Magistrate-Judge Boudewyns denied the motion and Mr. Dailey appeals that denial. For the reasons set forth below, the motion is granted.

I.

On October 8, 1993, defendants Leo Dai-ley, James Fraza and Scott Fraza were charged in a four count indictment with conspiracy to make false statements to a federally insured financial institution and to commit bank fraud and mail fraud. The indictment alleges that the defendants defrauded Coventry Credit Union and an individual named George DuPont by obtaining a $160,000 real estate acquisition loan based upon the false representations that the purchase price for the property was $205,000, whereas in fact, the price was $120,000. Allegedly, Leo Dai-ley acted as the attorney for the borrower as well as the credit union and knowingly prepared a false closing statement.

On October 29, 1993, the defendants were arraigned. At that hearing, defendants raised oral objections to the Court’s entry of the Standard Arraignment and Pretrial Discovery Order (hereinafter “Standard Order”). On November 2, 1993, the Standard Order was entered with respect to each of these defendants. On November 5, 1993, Mr. Dailey filed a formal motion objecting to the order. On November 16, 1993, Mr. Dai-ley filed a subsequent motion to vacate the Standard Order. It is this motion which is now before the Court for consideration.

Mr. Dailey has not requested discovery from the government and has filed a “waiver” stating that “defendant ... waives any right to disclosure he may have under the standard arraignment and pretrial discovery order.” Memo, and order of Magistrate-Judge Boudewyns (hereinafter “Memo, and Order”) at 2. The Standard Order provides for discovery within eight days of arraignment “unless within the eight day period the party entitled to disclosure shall file with the clerk a waiver thereof.” Standard Order at 1. Mr. Dailey claims that because of this waiver the Court may not require him to produce documents to the government. He bases his argument on Rule 16 of the Federal Rules of Criminal Procedure and the Fifth and Sixth Amendments. The government argues that it is still entitled to discovery regardless of Mr. Dailey’s waiver. Because I agree with Mr. Dailey’s first argument, I need not reach the constitutional claims.

II.

Mr. Dailey argues that “there is no basis upon which to impose a discovery obligation [20]*20of the defendant, unless the defense initiates a discovery request.” Memo, of Law in Support of Motion by Def. Leo Dailey Concerning Arraignment and Pretrial Discovery Order at 5. He cites the language and history of Rule 16 as support. Rule 16 governs pretrial discovery in criminal cases and divides discovery into two broad categories: disclosure by the defendant and disclosure by the government. The government’s obligations are triggered “upon request by the defendant.” Fed.R.Crim.P. 16(a)(1). The portion of the rule addressing the discovery obligations of the defendant is set forth below,

(b) The Defendant’s Disclosure of Evidence.

(1) Information Subject to Disclosure

(A) Documents and Tangible Objects. If the defendant requests disclosure under subdivision (a)(1)(C) or (D) of this rule, upon compliance with such request by the government, the defendant, on request of the government, shall permit the government to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions thereof, which are within the possession, custody, or control of the defendant and which the defendant intends to introduce as evidence in chief at the trial.

(B) Reports of Examinations and Tests. If the defendant requests disclosure under subdivision (a)(1)(C) or (D) of this rule, upon compliance with such request by the government, the defendant, on request of the government, shall permit the government to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant, which the defendant intends to introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant intends to call at trial when the results or reports relate to that witness’ testimony.

(C) Expert Witnesses. If the defendant requests disclosure under subdivision (a)(1)(E) of this rule and the government complies, the defendant, at the government’s request, must disclose to the government a written summary of testimony the defendant intends to use under Rules 702, 703 and 705 of the Federal Rules of Evidence as evidence at trial. This summary must describe the opinions of the witnesses, the bases and reasons therefor, and the witnesses’ qualifications.

Fed.R.Crim.P. 16(b)(1) (emphasis added).

It is clear from the wording of Rule 16(b) that these subsections “apply if and only if the defendant has requested and received discovery under (C) or (D) of Rule 16(a)(1) [the government’s disclosure obligations].” Charles A. Wright, Federal Practice and Procedure: Criminal 2d § 255 at 102 (1982). See also United States v. Kraselnick, 702 F.Supp. 480, 487 (D.N.J.1988) (“defendants’ reciprocal discovery obligations under [Rule 16(b) ] do not arise unless and until the government has complied with its obligations under Rule 16(a)”); Robert P. Mosteller, Discovery Against the Defense: Tilting the Adversial Balance, 74 Cal.L.Rev. 1567, 1569 (1986) (“the Federal Rules of Criminal Procedure permit discovery against the criminal defendant only when he ‘triggers’ the prosecutor’s right to discovery by requesting disclosure of certain types of information from the government”).

The Standard Order, however, does not follow the language of Rule 16. Under the Standard Order, “[e]ach party shall automatically disclose the material listed below regardless of whether the defendant or the government has made any request for discovery pursuant to Rule 16____ The obligation of the defendant is to disclose: (a) Any documents and tangible objects which would otherwise be subject to disclosure pursuant to Rule 16(b)(1)(A), Fed.R.Crim.P. (b) Any reports of examinations and tests which would otherwise be subject to disclosure pursuant to Rule 16(b)(1)(B), Fed.R.Crim.P.” Standard Order at 1-2. The language of the Standard Order is based upon Local Rule 12(e).1

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Cite This Page — Counsel Stack

Bluebook (online)
155 F.R.D. 18, 1994 U.S. Dist. LEXIS 6758, 1994 WL 197925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dailey-rid-1994.