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Motion to Compel Disclosure of All Informants and Govt Cooperators

Motion to Compel Disclosure of All Informants and Govt Cooperators

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Published by Matthew Whitten

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Published by: Matthew Whitten on Jan 14, 2013
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03/27/2015

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1
IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA, ))Plaintiff, ))vs. ) Case No. 10-CR-288)JAMES A. STUART, JR., ))Defendant. ))
MOTION TO COMPEL DISCLOSURE OFALL
INFORMANTS AND GOVERNMENT COOPERATORS
 
COMES NOW Defendant James A. Stuart (hereinafter “Stuart”), by and through hisundersigned attorneys of record, the Bernhoft Law Firm, S.C., specifically Attorney Robert G.Bernhoft, and respectfully requests, pursuant to
the dictates of 
 Brady v. Maryland 
, 373 U.S. 83(1963),
Giglio v. United States
, 405 U.S. 150 (1972),
 Kyles v. Whitley,
115 S.Ct. 1555 (1995),and Fed. R. Crim. P. 16, for entry of an order requiring the government to disclose and providethe following specific information and material known or through the exercise of due diligenceshould be known to the government concerning informants and cooperating governmentwitnesses. The information sought is favorable to Stuart on the issues of guilt or punishment,including impeachment information and other material and evidence tending to discredit the prosecution’s witnesses.
A discovery demand letter requested these items on March 16, 2011, butthe parties have been unable to resolve these issues prior to the deadline for this motion. (
See
 Exhibit A attached).
 After reviewing the documents provided to defense counsel to date, it is apparent andmanifest that substantial and critical information is missing from the discovery, includingexculpatory and impeachment material in favor of the defendant. Additionally, an employee of 
Case 2:10-cr-00288-CNC Filed 03/18/11 Page 1 of 10 Document 27
 
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Stuart’s company, New Age Chemical, and sister of the defendant, Beverly Schlipp, provided alengthy statement to IRS Special Agents Matthew Rech and Park Jones on February 19, 2009,the same day the search warrant had been executed at New Age Chemical. As the SpecialAgents memorialized in the February 19, 2009 MOI, they “formally reintroduced themselves” toMs. Schilpp before taking her statement. However, the February 19, 2009 MOI is the firstrecorded IRS contact with Ms. Schlipp, according to the discovery provided thus far, and it islikely there were prior contacts with Ms. Schlipp before February 19, 2009.
A. THE DUTY TO DISCLOSE
Due process compels the disclosure of evidence material either to the guilt or punishmentof the defendant.
See
 
 Brady v. Maryland,
373 U.S. 83, 87 (1963). This requires the governmentdisclose any evidence that could play a role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.
See
 
United States v. Bagley
, 473 U.S. 667 (1985);
 see also
 
Unites States v. Lloyd 
, 992 F.2d, 348, 351 (D.C.Cir.1993). “Taken together, this group of constitutional privileges delivers exculpatory evidenceinto the hand of the accused, thereby protecting the innocent from erroneous conviction andensuring the integrity of the criminal justice system.”
California v. Trombetta
, 467 U.S. 479,485 (1984). Moreover, in this federal prosecution, the Court’s supervisory power to safeguard“the correct administration of justice in the federal courts” reinforces the due processrequirement of disclosure.
United States v. Consolidated Laundries Corp
., 291 F.2d 563, 571(2nd Cir. 1961);
United States v. Miller 
, 411 F.2d 825, 832 (2nd Cir. 1969).
See generally,Communist Party of the United States v. S.A.C.B
., 351 U.S. 115, 124 (1956).
Case 2:10-cr-00288-CNC Filed 03/18/11 Page 2 of 10 Document 27
 
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B. PRETRIAL DISCLOSURE IS NECESSARY
Disclosure of information impeaching the credibility of witnesses must be timed to enableeffective preparation for trial.
See
 
United States v. Avery
, 208 F.3d 597, 602 (7th Cir. 2000)(setting forth the “time available for preparation” and “the availability of discovery” as a basis tocontinue a criminal trial). Indeed, even when the favorable information takes the form of awitness statement otherwise protected from pretrial discovery by the Jencks Act (18 U.S.C.§3500), the prosecution must nonetheless disclose it as far in advance of trial as Due Processmay practically require for the defense to make fair use of it. It is recognized that even Jencksdisclosure before trial “is a salutary practice and we encourage it”.
United States v. Murphy
, 569F.2d 771, 774 (3d Cir. 1978).Furthermore, even when due process itself does not require disclosure, the ends of judicialeconomy, careful trial preparation and clarity of evidentiary presentation will be greatly benefited by pretrial production of the requests made here. If such disclosure is delayed until theeve of trial, the Defendant may find himself unable to adequately conduct cross-examination,necessitate a continuance during the trial.
C. SPECIFIC REQUESTS FOR DISCLOSURE
 All information regarding informants and cooperators is necessary in order to properly prepare a defense in this matter.
Giglio v. United States
, 405 U.S. 150 (1972). Cross-examination of the confidential informant may be a critical part of the defense. This cross-examination must be complete and thorough in order to protect Stuart’s rights.
See Washingtonv. Texas
, 388 U.S. 14 (1967). In order to properly cross-examine an informant, the defense must be aware of all information relating to the informant’s and cooperating witness’s credibility,including any incapacity issues, biases, prejudices or motives, as well as the substantive evidence
Case 2:10-cr-00288-CNC Filed 03/18/11 Page 3 of 10 Document 27

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