United States v. Flynn

Robert J. Shelby, Chief District Judge

MEMORANDUM DECISION AND ORDER

JARED C. BENNETT UNITED STATES MAGISTRATE JUDGE

Chief District Judge Robert J. Shelby referred this case to Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(A).^[1] Due to Judge Warner's retirement, this case is now referred to Magistrate Judge Jared C. Bennett.^[2] Before the court are Defendant Christopher Kenneth Flynn's (“Mr. Flynn”): (I) motion to compel, ^[3] and (II) motion for severance of drug and firearm counts.^[4] The court has carefully reviewed the parties' written memoranda. Under DUCrimR 12-1(i), the court concludes that oral argument is not necessary and, therefore, decides the motions on the written memoranda. Based upon the analysis set forth below, the court denies both motions.

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PROCEDURAL BACKGROUND

On February 10, 2016, The United States of America (“United States”) charged Mr. Flynn in a superseding indictment with: (1) conspiracy to distribute methamphetamine under 21 U.S.C. § 846; (2) conspiracy to distribute heroin under 21 U.S.C. § 846; (3) conspiracy to distribute cocaine under 21 U.S.C. § 846; (4) possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A); and (5) possession of a firearm by a felon under 18 U.S.C. § 922(g)(1).^[5] On February 26, 2020, after the trial date in this matter had been continued numerous times and all of Mr. Flynn's co-defendants had entered guilty pleas, the United States charged Mr. Flynn in a second superseding indictment with: (1) conspiracy to distribute methamphetamine under 21 U.S.C. §§ 841(a)(1) and 846; (2) conspiracy to distribute heroin under 21 U.S.C. §§ 841(a)(1) and 846; (3) possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A); and (4) possession of a firearm by a felon under 18 U.S.C. § 922(g)(1).^[6] After the second superseding indictment was filed, Mr. Flynn's trial was again continued several more times. Mr. Flynn's trial is currently scheduled to begin on February 1, 2022, ^[7] and a final pretrial conference is scheduled for December 16, 2021.^[8] Mr. Flynn filed the motions before the court on November 29, 2021.

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ANALYSIS

I. Motion to Compel

Mr. Flynn moves to compel the United States to produce certain discovery. Importantly, Mr. Flynn's motion does not contain any argument or supporting legal authority. The motion simply states, without any justification, that the United States has failed to produce certain discovery and then lists twenty-two separate items of discovery to which he believes he is entitled. Nevertheless, as the United States notes in its response to Mr. Flynn's motion, the United States' discovery obligations are governed by Fed. R. Crim. P. 16, case law, ^[9] and statutes.^[10] Although Mr. Flynn fails to identify any authority supporting his entitlement to the discovery he seeks, the relevant authority governing his discovery requests is Rule 16(a)(1)(E), which provides:

Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books papers, documents, data, photographs, tangible objects buildings or places, or copies or portions of any of these items, if the item is within the government's possession custody, or control and

(i) the item is material to preparing the defense;

(ii) the government intends to use the item in its case-in-chief at trial; or

(iii) the item was obtained from or belongs to the defendant.^[11]

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Although the United States is obligated to comply with that rule, “Rule 16 does not authorize a blanket request to see the prosecution's file” and does not permit “‘any broad or blind fishing expedition.'”^[12]

Mr. Flynn does not assert that the discovery he requests from the United States “was obtained from or belongs to” him.^[13] Thus, to be discoverable under Rule 16(a)(1)(E), the discovery Mr. Flynn seeks must be either “material to preparing the defense” or discovery the United States “intends to use . . . in its case-in-chief at trial” and in the “possession, custody, or control” of the United States.^[14] As demonstrated below: (A) Mr. Flynn fails to carry his burden of showing that the requested discovery is material to preparing his defense; and (B) based upon the United States' representations, it does not intend to use any of Mr. Flynn's requested discovery in its case-in-chief. For those reasons alone, Mr. Flynn's requested discovery is not discoverable under Rule 16(a)(1)(E) because he does not establish any of the requirements of Rule 16(a)(1)(E)(i)-(iii). However, even if Mr. Flynn had satisfied any of those elements, his requested discovery would still not be discoverable under Rule 16(a)(1)(E) because: (C) based upon the United States' representations, Mr. Flynn's requested discovery either has been provided to him by the United States or is not in the United States' possession, custody, or control. For those reasons, which the court discusses in turn below, the court denies Mr. Flynn's motion to compel.

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A. Mr. Flynn Fails to Carry His Burden of Showing That the Requested Discovery Is Material to Preparing His Defense.

Mr. Flynn fails to demonstrate materiality under Rule 16. Under Rule 16(a)(1)(E)(i), “[t]he defendant bears the burden to make a prima facie showing of materiality.”^[15]

“A general description of the item will not suffice; neither will a conclusory argument that the requested item is material to the defense. Rather, the defendant must make a specific request for the item together with an explanation of how it will be helpful to the defense. The defendant must show more than that the item bears some abstract logical relationship to the issues in the case . . . .”^[16]

Mr. Flynn's motion fails to contain any of the required descriptions or explanations necessary to demonstrate materiality. Therefore, he has not carried his burden of establishing a prima facie case of materiality under Rule 16(a)(1)(E)(i).

B. The United States Does Not Intend to Use Any of Mr. Flynn's Requested Discovery in Its Case-In-Chief.

The United States represents that it does not intend to use any of the discovery requested in Mr. Flynn's motion in its case-in-chief. In support of that representation, the United States indicates that it has previously disclosed the statements it intends to use against Mr. Flynn at trial, most recently in January 2021. The United States also indicates that it has previously disclosed its exhibit list and a copy of the non-physical exhibits it intends to use at trial. According to the United States, none of the information Mr. Flynn requests is included within those disclosures. The court has no reason to question the veracity of the United States'

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representations. Because the United States does not intend to use Mr. Flynn's requested discovery in its case-in-chief, that information is not discoverable under Rule 16(a)(1)(E)(ii).

C. Mr. Flynn's Requested Discovery Either Has Been Provided to Him by the United States or Is Not in the United States' Possession, Custody, or Control.

The two reasons previously discussed are, by themselves, grounds for denying Mr. Flynn's motion. But even if Mr. Flynn had shown that his requested discovery was material to his defense or was intended to be used by the United States in its case-in-chief, the court would still deny his motion because, as shown below, Mr. Flynn's requested discovery either has been provided to him by the United States or is not in the United States' possession, custody, or control.

In its response to Mr. Flynn's motion to compel, the United States provides itemized responses to Mr. Flynn's discovery requests. According to those responses, the United States represents that it either has previously provided Mr. Flynn with the requested discovery or does not have responsive information in its possession, custody, or control. Again, the court has no reason to doubt those representations. To the extent that Mr. Flynn requests discovery that is not in the United States' possession, custody, or control, the United States is not required to respond to those requests under Rule 16(a)(1)(E). Indeed, “there is no ‘affirmative duty upon the government to take action to discover information which it does not possess.'”^[17] “Nor is the

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United States required to secure information from third parties.”^[18] Therefore, for that additional reason, the court denies Mr. Flynn's motion to compel.

II. Motion for Severance of Drug and Firearm Counts

Mr. Flynn's motion to sever the drug and firearms counts fails because he cannot meet the requirements of Fed. R. Crim. P. 14(a). To understand Rule 14's requirements, the court must first consider the joinder of these offenses together in the second superseding indictment. Fed. R. Crim. P. 8(a) allows for two or more offenses to joined together for a single trial “if the offenses charged . . . are of the same or similar character, or are based on the same act or transaction, or are connected with or...