Free Motion for Discovery - District Court of Delaware - Delaware

Case 1:08-cr-00082-GMS

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, Plaintiff, v. LARRY M. WILMER, Defendant.

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Criminal Action No. 08-82-GMS

DEFENDANT WILMER'S MOTION FOR DISCOVERY AND NOW comes the defendant, Larry M. Wilmer, by his attorney Keir Bradford of the Federal Public Defender's Office, and pursuant to Rule 16(a)(1)(E)(i) of the Federal Rules of Criminal Procedure, files this Motion for Discovery. 1. Defendant is charged with one count of possession of a firearm by a convicted felon,

in violation of 18 U.S.C. § 922(g)(1). 2. The firearm is identified in the indictment as "a Smith and Wesson 9 mm handgun,

model 5946, serial number VCA3019." 3. Delaware. 4. An initial crime report, prepared by the Wilmington Police Department, alleges that The indictment charges that the firearm was possessed in the State and District of

the firearm had been stolen from the Elsmere Police Department. 5. The Elsmere Police Department is located in the State and District of Delaware.

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6.

The Smith and Wesson Model 5946 handgun was first manufactured in the year 1990,

and was discontinued in the year 1999. S.P. Fjestad, Blue Book of Gun Values, Twenty-Ninth Edition, p. 1635 (Blue Book Publications, 2008). 7. In a prosecution for possession of a firearm by a convicted felon, the government has

the burden of proving the element of "interstate commerce." 8. Specifically, 18 U.S.C. § 922(g)(1) makes it unlawful for a convicted felon to "possess

in or affecting commerce, any firearm or ammunition." 9. Criminal Rule 16(a)(1)(E)(i) provides for the discovery of documents and data which

are "material to preparing the defense." 10. In this case, defense counsel seeks to prepare a defense on the interstate commerce

element, and intends to argue to the jury that there is reasonable doubt on this element. 11. To prepare a defense on the interstate commerce element, it is necessary to secure

information regarding the history of the firearm identified in the indictment, to-wit, the Smith and Wesson 9 mm handgun, model 5946, serial number VCA3019. 12. 13. 14. Defendant seeks three categories of discovery regarding the history of this firearm. First, defendant seeks documents reflecting the date and place of manufacture. Second, defendant seeks documents reflecting the dates on which the gun was

transferred, and the names and locations of the transferors and transferees. 15. Third, defendant seeks documents reflecting the date on which the gun was stolen

from and/or reported missing from the Elsmere Police Department. 16. Information regarding the history of the gun is available to the government through

a document known as an "ATF Trace Report." 2

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17.

As noted by the First Circuit, "[t]hese reports enable ATF agents to request the home

office to trace the serial number on a firearm to the manufacturer. The ATF then requires the manufacturer to fill out a report detailing the gun's history, and submit it to the ATF." United States v. Corey, 207 F.3d 84, 91 n. 11 (1st Cir. 2000). 18. In the event that an ATF Trace Report has not been prepared, the granting of this

motion for discovery will assure that a copy of the trace report is provided to defense counsel when and if such a report is generated. See Criminal Rule 16(c)(2) (party has a continuing duty to disclose where court previously ordered production of discovery materials). 19. It is requested that this Court order the government to provide defense counsel with

copies of documents, including but not limited to ATF Trace Reports, reflecting three categories of information regarding the Smith and Wesson 9 mm handgun, model 5946, serial number VCA3019: a. b. the date and place the gun was manufactured; the dates of transfer, the names and locations of the transferors, and the names and locations of the transferees; and the date on which the gun was stolen from and/or reported missing from the Elsmere Police Department.

c.

WHEREFORE, it is requested that Defendant's Motion for Discovery be GRANTED. Respectfully submitted, /s/ Keir Bradford KEIR BRADFORD, ESQUIRE Assistant Federal Public Defender One Customs House 704 King Street, Suite 110 Wilmington, DE 19801 302-573-6010 [email protected] DATED: June 19, 2008 3

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, Plaintiff, v. LARRY M. WILMER, Defendant.

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Criminal Action No. 08-82-GMS

ORDER OF COURT

AND NOW, this __________ day of ______________________, 2008, upon consideration of Defendant Wilmer's Motion for Discovery, it is hereby ordered that the motion is GRANTED. The government is directed to provide defense counsel with copies of all documents, including but not limited to ATF Trace Reports, reflecting the following information regarding the Smith and Wesson 9 mm handgun, model 5946, serial number VCA3019: a. b. the date and place the gun was manufactured; the dates the gun was transferred, the names and locations of the transferors, and the names and locations of the transferees; and the date on which the gun was stolen from and/or reported missing from the Elsmere Police Department. By the Court,

c.

________________________________ Honorable Gregory M. Sleet Chief Judge

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, Plaintiff, v. LARRY M. WILMER, Defendant.

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Criminal Action No. 08-82-GMS

DEFENSE COUNSEL'S CERTIFICATION UNDER LOCAL CRIMINAL RULE 5(d)(2)

1.

On Wednesday, June 18, 2008, defense counsel delivered a copy of Defendant's

Motion for Discovery to the prosecutor, Joseph S. Grubb. 2. 3. On Thursday, June 19, 2008, defense counsel spoke by telephone with Mr. Grubb. In that conversation, Mr. Grubb agreed to voluntarily provide to defense counsel the

three categories of documents identified in the Motion for Discovery.

Respectfully submitted, /s/ Keir Bradford KEIR BRADFORD, ESQUIRE Assistant Federal Public Defender One Customs House 704 King Street, Suite 110 Wilmington, DE 19801 302-573-6010 [email protected] DATED: June 19, 2008

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