The opinion of the court was delivered by: Judge Blanche M. Manning
The court previously ruled on two motions in limine filed by defendant Theresa Phillips. Since then, she has filed two more, which the court now addresses.
Motion to Produce Grand Jury Testimony[142-1]
The government has provided to Phillips copies of grand jury testimony of David Hodapp from November 2003, June 2004, and December 2006. According to Phillips, the June 2004 transcripts included testimony offered both in morning and afternoon sessions, but the November 2003 and December 2006 transcripts included only afternoon testimony. In response, the government contends that Hodapp did not testify during the morning sessions in November 2003 and December 2006, and therefore no transcripts exists.
The government committed to provide Phillips with any grand jury testimony of witnesses it calls at trial in response to one of Phillips' pretrial motions, and has apparently followed through by producing numerous transcripts of Hodapp's testimony. At this juncture, the court has no reason to conclude that the government is being untruthful when it states that no morning testimony occurred in November 2003 or December 2006, and therefore Phillips' request for transcripts from the morning sessions on those dates is denied. However, if during trial it comes to light that morning testimony did occur on those dates and the government failed to produce the requested transcripts, the court will entertain any appropriate motion filed by Phillips.
Phillips also seeks the production of testimony Hodapp offered during a pre-indictment forfeiture proceeding that occurred in April 2003, while the grand jury proceedings against Phillips were still pending. Given the government's commitment to produce the grand jury testimony of witnesses it plans to call at trial, the court grants Phillips' request for this additional testimony of Hodapp. The government contends that it does not have the transcript, but shall work to obtain it. Accordingly, the court orders the government to produce the requested transcript so that it is in Phillips' possession no later than 5:00 pm on Monday, March 5, 2007. Motion to Bar Recently-Disclosed Documents [144-1]
Beginning February 20, 2007, and continuing through March 1, 2007, (just two court days before trial), the government provided to Phillips hundreds of pages of documents. Phillips contends that the government's decision to flood her with documents just days before trial has left her with insufficient time to review the documents and prepare her defense. According to Phillips, the government's conduct is especially egregious because it previously committed to provide the documents to her no later than November 6, 2006, a commitment it made as part of its motion to continue the November 2006 trial date originally scheduled in this case. As a result of the government's last-minute production, Phillips requests either that her trial be continued so that she can review the documents, or that the government be barred from using any of these documents at trial.
The court initially denied Phillips' oral request for a continuance, but after reviewing Phillips' written motion and the government's response (neither of which was previously available), the court believes that the interests of justice will be served only if Phillips' trial is continued. A short continuance will afford Phillips the opportunity to review the recently-produced documents to determine whether or not they contain information not previously disclosed. The court's decision also takes into account the fact that the government obtained a continuance of the originally scheduled trial date to allow it to better prepare for trial, that the government failed to keep its commitment to produce all of its documents by November 2006, and that the government does not oppose Phillips' request for a continuance. Therefore, Phillips' request for a continuance is granted, and trial is rescheduled for Monday, March 12, 2007.
However, no further continuances will be granted without good cause. The government shall provide all of the documents it is obligated or intends to produce so that they are in Phillips' possession no later than 5:00 pm Monday, March 5, 2007. This will afford Phillips a week to review the recently-produced documents, which the court believes will be adequate. If documents are produced after that time, the court will entertain any appropriate motions by Phillips.
Phillips' motion for grand jury transcripts [142-1] is granted in part and denied in part as follows: her request for transcripts of Hodapp's morning sessions is denied because apparently none exist; her request for transcripts of Hodapp's testimony during an April 2003 forfeiture proceeding is granted. Phillips' motion to continue the trial date of March 5, 2007 [144-1] is granted. Trial is rescheduled for March 12, 2007 at 10:30 a.m. No further continuances will be granted without good cause. The government will produce Hodapp's forfeiture proceedings transcript and any other documents it is obligated or intends to provide so that they are in the possession of Phillips no later than 5:00pm on Monday, March 5, 2007.
Blanche M. Manning United States District Judge
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