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United States v. Lee

United States District Court, E.D. Louisiana

June 1, 2015

UNITED STATES OF AMERICA,
v.
KENNETH LEE, SECTION

ORDER

DANIEL E. KNOWLES, III, Magistrate Judge.

On May 6, 2015, Defendant's Motion to Compel Discovery [Doc. #22] and Defendant's Motion for Production of Brady Material and for Written Confirmation of Government's Inspection of All Locations Where Brady Material May Exist [Doc. #23] came on for oral hearing before the undersigned. Present were Claude Kelly and Ada Phleger on behalf of defendant and Bill McSherry and Maurice Landrieu on behalf of the government. After the oral hearing, the Court took the motions under advisement. Having reviewed the motions, the oppositions, and the case law, the Court rules as follows.

I. Background

The indictment alleges that Lee did knowingly and intentionally use or cause to be used the mail and a cellular telephone with the intent that the murder of an individual be committed in violation of the laws of the State of Louisiana, that is, first- and second-degree murder, as consideration for the receipt of and as consideration for a promise or agreement to pay anything of pecuniary value both before and after the murder was performed.

Specifically, and in short, the complaint alleges that Donald Sylvester, serving time at the Coleman Federal Correctional Institution for the murder of a federal witness, informed prison personnel that he had been approached by Lee. Sylvester informed the officials that Lee had acknowledged to him that he was willing to perform a murder-for-hire on Sylvester's former attorney. Lee also allegedly asked Sylvester if he wanted anyone else killed for having testified against him at his trial.

II. The Parties' Contentions

A. The Motion to Compel

Lee asks the Court to order the government to disclose all discovery related to him and to conduct an in camera inspection of the government's files to assure that it has provided all discovery. Specifically, he seeks (1) the letter sent by Donald Sylvester to AUSA Richard Westling advising him of the alleged plot; (2) all documents and objects in the possession of the Bureau of Prisons related to the alleged offense; (3) all data or reports extracted from the cell phone used by the undercover law enforcement officer; and (4) any audio recordings and/or telephone call logs related to Sylvester's participation in investigating and acting as an informant.

The government notes that it has been providing and will continue to provide evidence that it will use in its case-in-chief at trial. The government has informed Lee that there are other recordings located at the Bureau of Prisons of Lee speaking to other inmates and requesting that they get Sylvester to call him. The government will produce these recordings to defendants.

With regard to (1), the government will provide it 48 hours before trial if it constitutes Jencks Act, Brady, or Giglio material. With regard to (2), (3), and (4), the government notes that it will produce all documents that it intends to use in its case-in-chief at trial. The government argues that despite this production, none of the documents is material to the preparation of the defense, i.e., the information will not significantly alter the quantum of proof in defendant's favor. United States v. Ross, 511 F.2d 757, 762-62 (5th Cir. 1975).

The government maintains that there is no legal support for an in camera inspection of all government files.

B. The Motion for Production

Lee asks the Court to compel the government to turn over all Brady material. He then lists 16 specific requests, some with discrete sub-parts. He notes that the Supreme Court has ordered prosecutors to err on the side of disclosure when deciding whether to produce material potentially covered by Brady.

Lee also asks the Court to order the government to provide written confirmation that it has conducted an affirmative investigation under Brady beyond the file of the prosecutor handling the case. Lee then lists nine individuals (and/or groups of individuals) and asks the ...


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