USA v. Reid

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 05-cr-057-01-JD
Gordon Reid
O R D E R
Defendant, in his third motion for discovery (document no.
56), seeks discovery concerning an identified government witness,
Deborah Poirier, and of a Justice Department policy.
Specifically, defendant seeks:
1. Ms. Poirier’s psychiatric, psychological and
pharmacological records (document no. 56, p.1, (a));
2. All information related to any offers or promises
to Ms. Poirier for her cooperation and/or testimony
(document no. 56, p.2-3, (a), (c) and (f));
3. Information as to whether she was or was not
charged with a crime as a result of investigations (document
no. 56, p.2, (d));
4. Information of investigations in which she was a
“target” whether conducted by federal, state or local
authorities (document no. 56, p.3, (e));
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5. A copy of the “discovery” in Ms. Poirier’s
indicted case, (document no. 56, p.3, (g)); and
6. A copy of the USAM Policy setting forth the
factors to be considered in deciding whether to charge under
21 U.S.C. § 841.
The government does not object to providing discovery as required
by the Federal Rules of Criminal Procedure, nor of Brady or
Giglio materials but otherwise does object.
Considering the last request first, I deny the motion as it
relates to the Justice Department policy. The policies confer no
substantive rights on defendants. See United States v. Gary, 74
F.3d 304, 313 (1st Cir. 1995). They are not relevant. The
remaining requests are considered in order.
1. Mental health and pharmacological records of Poirier.
Evidence concerning a government witness’s mental health
history may be used to impeach the credibility of that witness if
defendant can show that during the time of the observed events
the witness’s ability to perceive and remember events affected
her ability to testify truthfully. United States v. Butt, 955
F.2d 77, 82 (1st Cir. 1992); United States v. Moore, 923 F.2d
910, 913 (1st Cir. 1991). In fact, “. . . the jury should,
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within reason, be informed of all matters affecting a witness’s
credibility. . .” United States v. Partin, 493 F.2d 750, 762
(5th Cir. 1974).
It follows that defendant is entitled to Ms. Poirier’s
mental health and drug records. A prosecutor “using a witness
with an impeachable past has a constitutionally derived duty to
search for and produce impeachment requested regarding a
witness.” United States v. Osorio, 929 F.2d 763, 761 (1st Cir.
1991). That duty, however, is limited as follows:
Neither the relevant Supreme Court precedent
under Brady nor our decision in Osorio
requires a prosecutor to seek out and
disclose exculpatory or impeaching material
not in the government’s possession. To
comply with Brady the individual prosecutor
has a duty to find any evidence favorable to
defendant that was known to those acting on
the government’s behalf. (citations
omitted).
United States v. Bender, 304 F.3d 161, 164 (1st Cir. 2002). The
prosecutor is directed “to make a reasonable inquiry of those in
a position to have relevant knowledge.” United States v. Osorio,
929 F.2d at 756. After the inquiry is made the prosecutor is to
deliver any additional responsive material to the defendant or
advise him that nothing was obtained.
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2. Promises.
The letter of November 22, 2005 to Attorney Monteith has
already been provided to defendant. The government has stated
that there are no other promises. The request is moot.
3. Charges.
The government has provided defendant with a copy of the
three count criminal indictment against Ms. Poirier and a copy of
her criminal record. The request is moot.
4. Investigations.
To the extent that they have not already been provided the
prosecutor should provide discovery responsive to this request
except for any information related to ongoing investigations.
5. Discovery in Ms. Poirier’s case.
Granted.
The motion is granted in part, denied in part and moot in
part.
SO ORDERED.
____________________________________
James R. Muirhead
United States Magistrate Judge
Date: January 20, 2006
cc: Gordon Reid, pro se
Helen W. Fitzgibbon, Esq.
Michael J. Iacopino, Esq.
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