United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, JUDGE UNITED STATES DISTRICT COURT.
the Court is Defendant's Motion for
Reconsideration of Order, to Reopen Hearing, and for Status
Conference (Doc. 50). The United States filed a
Reply (Doc. 52). For the reasons stated herein, the
Motion for Reconsideration of Order, to Reopen
Hearing, and for Status Conference (Doc. 50) is
GRANTED IN PART and DENIED IN
February 16, 2017, a federal grand jury indicted Defendant
for possession with intent to distribute a controlled
substance in violation of 21 U.S.C. § 841(a)(1),
possession of a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1)(A), and
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). (Doc. 2). On May 18, 2018, Defendant filed
a Motion to Suppress, seeking to exclude certain statements
as well as evidence recovered in a car and at an apartment at
the trial. (Doc. 25). The Court held an evidentiary hearing
in the matter on August 10, 2018 and denied the motion on
September 13, 2018. (Doc. 38).
seeks to reopen the hearing and have the Court reconsider its
ruling on the Motion to Suppress (Doc. 25) for two reasons.
First, Defendant claims to have been deprived of the
opportunity to testify at the hearing because of mutual
miscommunication with his counsel. (Doc. 50-1 at p. 1).
Second, Defendant seeks to present the testimony of two new
witnesses who he claims will elucidate the timeline of Baton
Rouge Police Department (“BRPD”) officers'
search of the apartment where Defendant was staying.
(Id. at 2.). One of Defendant's principal
arguments during the evidentiary hearing was that BRPD
officers executed the search of the apartment before the
judge signed the warrant.
LAW AND DISCUSSION
Testimony of Defendant
United States has no objection to reopening the hearing to
allow Defendant to testify. (Doc. 52 at p. 2). The United
States asserts that because Defendant's recollection of
what occurred on the day of the search of his apartment and
car conflicts with the version described by BRPD officers, a
finding that Defendant is more credible than the officers
could entitle Defendant to relief. The United States contends
that it is in the best interest of justice to reopen the
evidentiary hearing to allow Defendant to testify. The Court
agrees. The United States Court of Appeals for the Fifth
Circuit has found that motions for reconsideration are a
judicial creation not derived from statutes or rules.
U.S. v. Brewer, 60 F.3d 1142, 1143 (5th Cir. 1995).
As such, although the Federal Rules of Criminal Procedure do
not explicitly authorize motions for reconsideration,
district courts possess continuing jurisdiction over criminal
cases and are free to reconsider their earlier decisions.
U.S. v. Carter, No. 12-198, 2015 WL 1897613, at *1
(E.D. La. Apr. 27, 2015) (citing United States v.
Scott, 524 F.2d 465, 467 (5th Cir. 1975)).
Given that the United States does not object to allowing
Defendant to testify, and the Court finds that it is in the
best interest of justice to allow Defendant to do so, the
Court will allow Defendant to testify at a second evidentiary
Testimony of Two New Witnesses
Newly Discovered Evidence
United States opposes allowing the two new witnesses to
testify. The United States argues that the statements of
these witnesses do not rise to the level of “newly
discovered evidence.” (Doc. 52 at p. 3). See U.S.
v. Banks, No. 1:08-cr-113, 2009 WL 585506, at *1 (E.D.
Tex. Mar. 6, 2009) (finding that a motion to reconsider can
in part serve the purpose of presenting newly discovered
evidence). The Court disagrees. Defense counsel has explained
that Defendant mentioned a potential witness prior to the
evidentiary hearing, but counsel felt the description too
vague to pursue. (Doc. 50-1 at p. 1). After the evidentiary
hearing, Defendant's friends and family vigorously
searched for and found the witnesses at issue.
(Id.). Because defense counsel concluded, prior to
the hearing and despite diligent efforts, that there was no
reasonable basis to believe that other witnesses existed, the
Court finds the testimony of the two additional witnesses to
be newly discovered evidence.
these witnesses could inform the Court regarding a material
fact at issue in Defendant's Motion to Suppress. In its
ruling on the Motion to Suppress, the Court concluded that
BRPD officers searched Defendant's apartment after the
corresponding warrant was signed, largely based on the
testimony of the officers themselves. (Doc. 38 at p. 9). The
Court found that the BRPD incident reports, which indicated
that the warrant was signed earlier than stated by officers,
did not create sufficient doubt that the search occurred
prior to the issuance of the warrant because the dates noted
in the reports were in error. (Id.) However, if the
Court finds Defendant's new witnesses to be more credible
than the officers, the validity of the warrant could be
called into question. Thus, the Court will allow
Defendant's two additional witnesses to testify.
Prior Disclosure of Identities and Statements
United States requests that the Court order Defendant to
provide the witnesses' identities and written statements
prior to a second evidentiary hearing. However, the United
States does not cite, and the Court has not found, any law
entitling the United States to such reciprocal discovery in
advance of the hearing, except in limited circumstances.
Federal Rule of Criminal Procedure 26.2 governs the
production of the statements of a witness who testifies at a
suppression hearing. Fed. R. Crim. P. 26.2(g). The rule
provides that after a witness has testified on direct
examination, the Court, on the motion of the opposing party,
must order the production of the witness's pre-hearing
statements, should any exist. Fed. R. Crim. P. 26.2(a).
Critically, the rule does not provide for the disclosure of
the witness's identity or statements prior to the
hearing. As such, the United States' request that
Defendant disclose the ...