ORDER REGARDING MOTION FOR ORDER DIRECTING GOVERNMENT TO PROVIDE ADDITIONAL DISCOVERY (Docket 105)
JOHN D. ROBERTS, Magistrate Judge.
Defendant James Michael Wells moves for an order directing the government to provide additional discovery, Docket 105. The government filed its opposition/response at Docket 111. Wells filed his reply at Docket 127. The request for oral argument raised in the reply is denied.
General Discovery Requests pursuant to Rule 16.
1. The request for the defendant's oral and written statements as defined in Rule 16(a)(1)(A) and (B), Federal Rules of Criminal Procedure is granted. Defendant's statements including recordings of jail phone calls made by the defendant be provided by the government to the defendant within ten days from the date of this order.
2. The request for arrests reports and notes is denied. Federal Criminal Rule 16(a)(2).
3. The request for dispatch tapes is granted.
4. The request for a written summary of any testimony that the government intends to use under Federal Rules of Evidence 702, 703, or 705 during its case-in-chief at trial is granted in accordance with the date for disclosure established by the court in its prior pretrial order.
5. The request for reports of examinations and tests pursuant to Federal Criminal Rule 16(a)(1)(F) is granted if the item is within the government's possession, custody or control or the attorney for the government knows or through due diligence could know, that the items exists, and the item is material to preparing the defense or the government intends to use the item in its case-in-chief at trial. This includes fingerprint analysis, laboratory testing, reports of any physical examinations, gunshot residue testing, and dog-sniff searches that are either intended for use as evidence at trial, relied upon by the government to obtain a warrant, or constitute Brady material.
6. The request for the defendant's prior criminal record, if any, is granted. Rule 16(a)(1)(D), Federal Rules of Criminal Procedure.
7. The request for notice of any evidence of alleged crimes, wrongs or other bad acts of the defendant the prosecution intends to offer in its case-in-chief pursuant to Federal Rule of Evidence 404(b) is granted. The government has set a date for production of 404(b) notices. The government should provide reasonable notice of the general nature of any such evidence that it intends to offer at trial. The notice shall include the nature of the incident, the date, time and place of the incident, and the identity of persons having knowledge of such incident(s).
8. The request for documents and tangible objects is granted as follows: the government shall permit the defendant to inspect and copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody or control and (1) the item is material to preparation of the defense; (2) the government intends to use the item in its case-in-chief at trial; or (3) the item was obtained from or belongs to the defendant. Federal Criminal Rule 16(a)(1)(E). The request for immediate notice of the government's intention to use any such tangible evidence at trial is denied generally, but granted with respect to such evidence that might reasonably be subject to a motion to suppress or other pretrial challenge to the lawfulness of its use at trial.
The defendant's request for information regarding video of trucks similar to the defendant's and for additional "other suspect" evidence as "material to the preparation of the defense" under F.R.Cr.P. 16(a)(1)(E)(I) is granted as to video and other tangible objections within the government's possession, custody or control (1) if is intended for use by the government in its case-in-chief; or (2) unavailable to the defense through their own investigation, for example through searching public records; or (3) if it may play an important role in uncovering admissible evidence, aid in witness preparation or cross-examination, corroborate testimony or assist impeachment or rebuttal. United States v. Lloyd , 992 F.2d 348, 351 (D.C. Cir. 1993).
"What is material in preparing the defense" does not include all information in the government's investigation. The government is not required to divulge its theory of the case. Relevant tangible objections do not belong to either party.
The discoverability of the information under Rule 16 does not end the inquiry. The defendant has also requested Brady information. The identity of a similar looking vehicle may constitute Brady material. The government should review this request under Brady pursuant to the broad discovery policy set forth in the United States Attorney's Manual 9-5.001 and United States v. Muniz-Jaquez, 718 F.3d 1180 (9th Cir. 2013).
Wells provides specific examples of discovery that he seeks pursuant to Federal Criminal Rule 16(a)(1)(E)(i) because it is "material to preparing the defense." The court agrees that the government should provide as discovery the following: Statements of the first responders to the crime scene; the physical location where the decedents were first discovered and whether they were facing up or facing down; the description of the medical therapies that were applied to the decedents prior to them being pronounced dead; the clothing that the decedents were wearing at the time of their demise; and the location of bullet fragments discovered ...