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United States v. Michael

United States District Court, N.D. Illinois, Eastern Division

November 13, 2014

UNITED STATES OF AMERICA,
v.
ROBERT MICHAEL

MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge.

This matter is before the court on Defendant Robert Michael's (Michael) motions in limine. For the reasons stated below, the motions are denied.

BACKGROUND

Michael was indicted and charged with the offenses of bank fraud in violation of 18 U.S.C. § 1344 (Count One), making a false statement for the purpose of influencing the actions of an FDIC-insured bank in violation of 18 U.S.C. §§ 1014 and 2 (Count Two), and money laundering in violation of 18 U.S.C. §§ 1957 and 2 (Count Three). Michael's co-defendant, Erroll Davis (Davis), was indicted and charged with the offense of making false statements on his tax return in violation of 26 U.S.C § 7206(1) (Count Four). The indictment alleges that Michael conspired with others in a scheme to defraud Citizens Bank and Trust of Chicago (Citizens). Michael allegedly was a shareholder, chief executive officer, and senior lender at Citizens and engaged in fraud when acting as a loan officer on certain loan transactions. On November 15, 2014, a bench warrant was issued for Michael and on November 22, 2014, Michael was arrested. On that same day Michael had an initial hearing and entered a plea of not-guilty. On December 5, 2013, Davis entered a plea of guilty to Count Four. Michael has now filed motions in limine and the Government has responded.

DISCUSSION

Michael requests in his motions in limine: (1) that the court order the Government to produce any favorable, exculpatory, and impeaching evidence, (2) that the court order the Government to produce any witnesses' statements pursuant to the Jencks Act, (3) that the court order the Government to give immediate notice of its intent to use evidence of other crimes, wrongs, and/or bad acts, and (4) that the court order the Government to provide a witness list.

I. Favorable, Exculpatory, and Impeaching Evidence

Michael requests that the Government produce any favorable, exculpatory, and impeaching evidence pursuant to the principles enunciated in Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), Agurs v. United States, 427 U.S. 97 (1976), and United States v. Bagley, 473 U.S. 667 (1986). Michael contends that such evidence should include "all mental, psychiatric, or drug abuse" records of witnesses and "handwritten notes" from government agents.

The Government has an "obligation to disclose any evidence in its possession that is both material and favorable to a defendant." See United States v. Roberts, 534 F.3d 560, 572 (7th Cir. 2008)(stating "[t]his evidence includes impeachment evidence as well as exculpatory evidence"). The Government indicates that it understands its obligation under Brady to produce all favorable and exculpatory evidence to the defense. (Ans. 3). The Government maintains that it has produced everything that it is aware of and that if it becomes aware of any additional evidence it will be turned over. (Ans. 3). The Government also indicates that it understands its obligation under Giglio to produce all information that might impeach its witnesses. (Ans. 3-4). The Government maintains that it will disclose any such information, to the extent it has already not been disclosed, two weeks prior to trial. (Ans. 3-4). The Government, however, contends that Michael's other requests, including a request for all mental, psychiatric, or drug abuse records is overbroad. The Government also contends that Michael's request for work product and handwritten agent notes should be denied since such notes have already been incorporated into official reports that have been provided to Michael. (Ans. 4-5).

Michael has failed to establish how his broad request for all mental, psychiatric, or drug abuse records amounts to favorable, exculpatory, or impeaching evidence under either Brady, Giglio, Agurs, or Bagley. Michael has also failed to explain how he would be entitled to any privileged information protected by the work product doctrine or any handwritten agent notes. See United States v. Muhammad, 120 F.3d 688, 699 (7th Cir. 1997)(stating "[a] defendant is not entitled to an agent's notes if the agent's report contains all that was in the original notes"). Since the Government has been complying with all of its discovery obligations, the motions for the production of any favorable, exculpatory, and impeaching evidence are denied as moot. Michael's other evidentiary requests, including records for all mental, psychiatric, or drug abuse information and handwritten agent notes are denied.

II. Jencks Act Materials

Michael also moves for the production of any Government witnesses' statements under the Jencks Act, 18 U.S.C. § 3500, and pursuant to Jencks v. United States, 353 U.S. 657 (1957). Michael did not request a specific deadline for the production of such materials. (J Mot. 1). The Jencks Act provides in part the following:

In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.

18 U.S.C. § 3500(a). The production requirements under the Jencks Act are intended "[t]o ensure the meaningful confrontation of government witnesses" and "afford the defense a basis for effective cross-examination of government witnesses and the possible impeachment of their testimony without overly burdening the government with a duty to disclose all of its investigative material." United States v. Kimoto, 588 F.3d 464, 475 (7th Cir. 2009). The Government indicates that it has already informed Michael that it will provide Defendants with Jencks Act materials two weeks prior to trial, or thereafter promptly upon receipt. (Ans. 6). Such disclosures will provide Michael with adequate time to prepare for trial and prepare an effective cross-examination of Government witnesses. The Seventh Circuit has made clear that, "the government [is] not required to give [a defendant] any [Jencks Act] information before trial beg[ins], " and a production of such materials two weeks before trial in this case is above and beyond what is required by the Government. United States v. Molt, 772 F.2d 366, 370-71 (7th Cir. 1985)(stating that "[t]he Jencks Act requires the government to produce only such material as it has"); see also United States v. Edmond, 2011 WL 6010261, at *2 (N.D. Ill. 2011)(denying motion in limine for production of Jenck's Act materials four weeks before trial and concluding that Government's agreement to produce such materials two weeks before trial was adequate); United States v. Rodriguez, 2009 WL 1110415, at *6 (E.D. Wis. 2009)(finding that "the government's offer to disclose Jencks Act materials one week before trial is more than sufficient to facilitate an ...


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