Free Motion for Disclosure - District Court of Delaware - Delaware

Case 1:07-cr-00089-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, Plaintiff, v. MARZETTE KING, Defendant.

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Criminal Action No. 07-89-JJF

DEFENDANT'S MOTION FOR DISCLOSURE OF EXCULPATORY EVIDENCE AND NOW comes the defendant, Marzette King, by his attorney Luis A. Ortiz of the Federal Public Defender's Office, and pursuant to the Due Process Clause of the Fifth Amendment, files this Motion for Disclosure of Exculpatory Evidence. 1. By the indictment filed on June 26, 2007, defendant Marzette King was charged with one count of possession of a firearm by a convicted person, in violation of 18 U.S.C. § 922(g)(1). 2. The indictment alleges that on May 31, 2007, defendant Marzette King knowingly possessed a Ruger semi-automatic handgun. 3. The government proceeds on a theory of constructive possession; specifically, the government alleges that the Ruger firearm was found in the trunk of a Chevrolet Caprice automobile, that the defendant was the operator of the vehicle, and that the defendant was constructively in possession of the gun in the trunk. 4. In the discovery, defense counsel was provided with a redacted copy of an "Initial Crime Report" prepared by the Wilmington Police Department; the report, attached hereto as Exhibit A, alleges as follows: a. b. c. that Mr. King was the operator of the Chevy Caprice; that the vehicle was stopped on suspicion of non-registration; that police conducted a search of the vehicle;

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d.

that the Ruger firearm was discovered in the trunk of the vehicle, underneath a large gray plastic bag; and

e.

that the plastic bag contained "two large white tank top tee shirts, white Nike hightop shoes (9 1/2 in size) blue jeans (34 inch waste) four pair of white ankle socks, and several miscellaneous car parts."

5.

The Initial Crime Report represents that when the firearm was removed from the trunk

by police, the defendant exclaimed that he didn't know where it came from (Exhibit A, page 2, par. 3). 6. The Initial Crime Report further represents that in a post-arrest statement, Mr. King

indicated that he purchased the vehicle four days earlier, that the purchase price was $400.00, and that the seller was a "slim, dusty looking" white male "around 35 years old" (Exhibit A, page 3, par. 1). 7. In the discovery, defense counsel was provided with a redacted copy of an ATF report

reflecting an interview with the white male who sold the Chevy Caprice to the defendant (Exhibit B). 8. The white male advised that he sold the vehicle to a stocky dark-skinned black male

on May 21 or 22, 2007 (a date which was nine or ten days prior to the police search of defendant's vehicle) (Exhibit B, paragraph 3). 9. At the suppression hearing conducted on October 1, 2007, ATF Agent Paul Gemmato

testified that he had interviewed the person who sold the vehicle to the defendant; Agent Gemmato described the seller as a "slim, dusty-looking white male" who was 35 years of age (S.H., pp. 52-53).

10.

The name of the seller is blacked-out on the copy of the ATF report provided to 2

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defense counsel (Exhibit B). 11. Defense counsel has asked the prosecutor to provide the name and address of the slim

white male, who sold the vehicle to defendant Marzette King. 12. 13. The government has declined to provide the name or address to defense counsel. On February 8, 2008, Assistant Federal Public Defender, Luis A. Ortiz, visited the

defendant and measured his waist size; Mr. King's waist measures approximately 42 inches. 14. On March 3, 2008, Assistant Federal Public Defender, Luis A. Ortiz, spoke with the

defendant's mother, Barbara King. She has indicated that Marzette King's shoe size is approximately 11½. 15. Under the Due Process Clause of the Fifth and Fourteenth Amendments, the

government has a duty to disclose evidence in its possession that is favorable to the accused and is material to either guilt or punishment. United States v. Starusko, 729 F.2d 256, 260 (3d Cir. 1984), citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196 (1963). 16. Evidence is "material" to the defense if it "creates a reasonable doubt as to the

defendant's culpability." United States v. Starusko, supra, 729 F.2d at 260, citing United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2401 (1976) (internal cite omitted). 17. Defendant seeks an Order of Court directing the prosecutor to provide defense

counsel with the name and address of the man, who sold the Chevy Caprice to defendant Marzette King. 18. Disclosure of the name and address of the seller will permit defense counsel to serve

this individual with a trial subpoena, and the witness' presence at trial will create reasonable doubt as to defendant Marzette King's culpability. 3

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20.

Specifically, the seller's testimony will show that someone other than Marzette King

had recently had access to the trunk of the Chevy Caprice; in addition, the jurors will see that the seller is a person who is physically "slim;" given that the blue jeans were found in a bag atop the gun, given that the pants fit a slim person, and given that the seller is a slim person with recent access to the trunk of the car, it is submitted that the seller's trial testimony will create reasonable doubt as whether Marzette King was the person who constructively possessed the firearm. 21. As reflected in the following published decisions, the prosecutor has a duty, under

Brady v. Maryland, to provide defense counsel with the names of persons whose testimony would be exculpatory and material to the defense. 22. In Monroe v. Angelone, 323 F.3d 286, 300 n.22 (4th Cir. 2003), habeas relief was

granted based upon several Brady violations; one violation was the failure to disclose to defense counsel the names of witnesses who had observed a suspicious vehicle fleeing from the scene of the murder; even though the information provided by the witnesses was "somewhat vague," there was "more than a remote possibility that disclosure would have helped the defense." 23. In Bowen v. Maynard, 799 F.2d 593, 610-13 (10th Cir. 1986), habeas relief was

granted based upon a Brady violation; in prosecuting defendant for murder, the government failed to honor defense counsel's request for the names of alternative suspects; information regarding an alternative suspect could have created reasonable doubt regarding defendant's guilt. 24. In United States v. Noetzel, Petro, Moran and Mack, 124 F.R.D. 518, 520 (D.Mass.

1989) (Magistrate Michael A. Ponsor), the defendants were charged with distributing cocaine. In a statement to police, defendant Noetzel identified a "Cuban male" as his source of cocaine. Defendant Moran wanted to prove that he was not the source named by Noetzel. Moran therefore moved for 4

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disclosure of the name of the "Cuban male," the business address of the "Cuban male," and the name of an individual who had been introduced to the "Cuban male." The Magistrate directed disclosure of the requested names and addresses on the ground that the information "clearly may be exculpatory." WHEREFORE, pursuant to the Due Process Clause of the Fifth Amendment, it is requested that Defendant's Motion for Disclosure of Exculpatory Evidence be GRANTED, and that the government be Ordered to provide defense counsel with the name and address of the individual, who sold the Chevy Caprice automobile to Marzette King.

Respectfully submitted,

___/s/__________________ Luis A. Ortiz Assistant Federal Public Defender Attorney for Defendant Marzette King Federal Public Defender's Office One Customs House 704 King Street, Suite 110 Wilmington, DE 19801 303-573-6010 [email protected]

DATED: March 3, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, Plaintiff, v. MARZETTE KING, Defendant.

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Criminal Action No. 07-89-JJF

ORDER AND NOW, this ____ day of _______________, 2008, upon consideration of Defendant Marzette King's Motion for Disclosure of Exculpatory Evidence, it is hereby Ordered that the motion is GRANTED. Within three business days of this Order, the government shall disclose to defense counsel the name and address of the individual, who sold the Chevy Caprice automobile to defendant Marzette King.

By the Court,

HONORABLE JOSEPH J. FARNAN, JR. United States District Court Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, Plaintiff, v. MARZETTE KING, Defendant.

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Criminal Action No. 07-89-JJF

ORDER AND NOW, this ____ day of _______________, 2008, upon consideration of Defendant Marzette King's Motion for Disclosure of Exculpatory Evidence, it is hereby Ordered that the motion is GRANTED. Within three business days of this Order, the government shall disclose to defense counsel the name and address of the individual, who sold the Chevy Caprice automobile to defendant Marzette King.

By the Court,

HONORABLE JOSEPH J. FARNAN, JR. United States District Court Judge

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