United States v. Kosovsky

513 F. Supp. 1, 1980 U.S. Dist. LEXIS 16590
Procedural entryThis page is a short order in United States v. Kosovsky. Read the opinion of the Court — 506 F. Supp. 46
District Court, W.D. Oklahoma·Decided April 15, 1980·No. No. CR-80-26-D·Published

Opinion

ORDER

DAUGHERTY, Chief Judge.

On February 1, 1980, the Grand Jury returned an Indictment against the above named Defendants. This matter is presently before the Court on numerous pretrial Motions filed by Defendant Ovid Kosovsky (Kosovsky) which the Court rules on as follows:1

MOTION FOR PRODUCTION OF EVIDENCE

Pursuant to Rule 16, Federal Rules of Criminal Procedure, Defendant Kosovsky has filed a Motion for Production of Evidence wherein he seeks disclosure of the following:

1. Any and all statements, reports of statements, or transcripts of testimony of Ovid Kosovsky in plaintiff’s possession which have not already been supplied to defendant.
[2]*22. Allow defendant to inspect and copy any and all photograph books, papers, documents, photographs, tangible objects, or any other documents and tangible objects, which are within the possession, custody or control of the plaintiff, and which are material to the preparation of defendant’s case or are intended for use by the plaintiff as evidence in chief at the trial, or were obtained from or belonged to the defendant.
3. Any and all scientific reports and examination of the stone ‘stellae’ [sic].

In its response to the instant Motion, the Government states that it has already made available to counsel for Defendant Kosovsky the following:

1. Copies of all statements, including Grand Jury testimony, made by defendant Kosovsky in the possession of the Government;
2. Reasonable access to all documents, books, papers, photographs and tangible objects in the possession of the government which will be used by the Government at trial or is material to the defense;
3. A copy of the only scientific test in the Government’s possession which is a FBI laboratory report regarding the testing of a stone tablet.

With respect to Defendant Kosovsky’s first request, the Court determines that said Defendant is entitled to this discovery pursuant to Rule 16(a)(1)(A), Federal Rules of Criminal Procedure. Therefore, the Government is directed to furnish any relevant written or recorded statements made by Defendant Kosovsky as well as the substance of any oral statement the Government intends to offer in evidence at the trial made by said Defendant in response to interrogation by any person then known by Defendant Kosovsky to be a government agent and any testimony of Defendant Kosovsky before a grand jury relating to the offenses charged in this case which have not already been provided to Defendant Kosovsky. Any such statements are to be furnished to said Defendant at the time and place as set out hereafter in this Order.

Turning to Defendant Kosovsky’s second request, the Court notes that Rule 16(a)(1)(C), Federal Rules of Criminal Procedure, requires the Government to disclose those documents and tangible objects within its possession, custody or control if any one of three situations exists: (a) the defendant shows that disclosure of the document or tangible object is material to the defense; (b) the Government intends to use the document or tangible object in the presentation of its case in chief; or (c) the document or tangible object was obtained from or belongs to the defendant. See Rule 16, Notes of Advisory Committee on Rules. The discovery permitted by Rule 16(a)(1)(C) is limited by Rule 16(a)(2), Federal Rules of Criminal Procedure, which provides that the Government need not disclose “reports, memoranda, or other internal Government documents” made by Government agents in connection with the investigation or prosecution of this case. Therefore, the instant request should be sustained to the extent it seeks matter discoverable under Rule 16(a)(1)(C) and the Government is ordered to provide any such matter not already furnished to Defendant Kosovsky or his attorneys at the time and place as set out hereafter in this Order.

As to Defendant Kosovsky’s request for all scientific reports and examinations of the stone “stelae” involved in this case, it appears that the same are clearly discoverable under Rule 16(a)(1)(D), Federal Rules of Criminal Procedure. Accordingly, the Government is directed to furnish Defendant Kosovsky with any results or reports of scientific tests in this case which have not already been provided to said Defendant as set out hereafter.

MOTION TO PRODUCE GRAND JURY TESTIMONY

In his Motion to Produce Grand Jury Testimony, Defendant Kosovsky seeks the transcripts of all testimony before the grand jury. The Government opposes the requested discovery.

Except for his own testimony, Defendant Kosovsky is not entitled of right to pretrial [3]*3access to testimony before the grand jury. E. g., United States v. Tager, 481 F.2d 97 (10th Cir. 1973), cert. denied, 415 U.S. 914, 94 S.Ct. 1410, 39 L.Ed.2d 469 (1974). Under its 1970 amendment, the Jencks Act, 18 U.S.C. § 3500, now covers grand jury testimony of witnesses who testify at trial. 18 U.S.C. § 3500(a) provides that statements made by such witnesses or prospective witnesses are not subject to discovery until the witness has testified on direct examination in the trial of the case. After a witness called by the government has testified on direct examination, 18 U.S.C. § 3500(b) requires the Court, on motion of the defendant, to order the government to produce any statements, including grand jury testimony, of the witness in the possession of the government. This Court is bound by the dictates of the Jencks Act. To delay production of the grand jury testimony until time of trial is a right the government has. United States v. Countryside Farms, Inc., 428 F.Supp. 1150 (D.Utah 1977); see United States v. Moore, 556 F.2d 479 (10th Cir. 1977). Accordingly, the instant Motion for pretrial disclosure of grand jury testimony of persons other than the Defendant Kosovsky is denied. See United States v. Pelton, 578 F.2d 701 (8th Cir. 1978), cert. denied, 439 U.S. 964, 99 S.Ct. 451, 58 L.Ed.2d 422 (1978); United States v. Percevault, 490 F.2d 126 (2nd Cir. 1974); United States v. Tager, supra; United States v. Quintana,

United States v. Kosovsky, 513 F. Supp. 1, 1980 U.S. Dist. LEXIS 16590 (W.D. Okla. 1980).

513 F. Supp. 1 (United States v. Kosovsky) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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