IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
UNITED STATES OF AMERICA
: : : : :
v. DEMARIO JAMES ATWATER
No. 1:08CR384-1
MOTION FOR DISCOVERY AND INSPECTION The defendant, DEMARIO JAMES ATWATER, by and through his undersigned legal counsel, pursuant to Rule 16 of the Federal Rules of Criminal Procedure, 18 U.S.C. ยง 3500, the Jencks Act, the Fifth and Sixth Amendments to the Constitution of the United States and other applicable rules and authorities cited herein, hereby moves this Honorable Court for an Order directing the government to produce and permit the defendant to inspect, copy, or photograph each of the following which are known to, or in the possession of the
government
or
any
of
its
agents,
or
which,
through
due
diligence, would or could become known to the government, its offices, agents, witnesses, or other persons having knowledge of this case, and in support of such motion, shows unto the Court the following: 1.
Pursuant to the open file policy of the United States,
defense counsel has been previously provided copies of various discovery in the possession of the United States Attorney's Office. 2.
Defense counsel has been informed by
Assistant United
States Attorney Clifton T. Barrett that the investigation in this matter is ongoing and that additional discovery would be provided as he receives it.
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3.
Defendant is informed and believes that the Durham Police
Department, the Chapel Hill Police Department, the North Carolina State Bureau of Investigation and other law enforcement agencies received
information
through
Crimestoppers
tips
identifying
suspects in this case depicted in photographs posted on television and
in
the
printed
news
media.
The
Defendant
requests
all
information regarding such Crimestoppers tips, including the names, addresses and telephone numbers of any persons identifying the photographs of suspects in this matter. In addition, the Defendant requests the names, addresses and criminal history of any person identified. 4.
Defendant
requests
discovery
of
the
following
information: a.
All records, notes, dictation tapes, and transcripts
of statements made by the Defendant. b.
All records, notes, tape recordings, and transcripts
of monitored conversations between the Defendant, his unindicted co-defendant, Lawrence Alvin Lovette, any third party, and any undercover officer participating in the investigation of this case. c.
All
records,
notes,
tape
recordings,
video
recordings and transcripts of such recordings of any monitored or unmonitored conversations pertaining to the matters subject to the investigation of this case. d.
The substance of any oral statement made by the
Defendant before or after his arrest in response to interrogation by then known government agents. 2
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e.
The substance of any oral statements allegedly made
by the Defendant to a third party, prior to or subsequent to the commission of the crimes alleged in the indictment, which the government has knowledge of and intends to use at trial in the this matter. f.
The
prior
criminal
records
of
Defendant
and
Lawrence Alvin Lovette, if any, including juvenile records and those records maintained by the FBI. g.
The
names
and
identification
of
all
government
witnesses and copies of any statements made by such witnesses in the possession of the government. h.
Investigative reports and conclusions of officers
assigned or otherwise involved in this case. i.
The names, badge numbers and law enforcement agency
employed by of any officer involved in the arrest and interrogation of the defendant. j objects
upon
Any and all books, papers, documents, or tangible which
the
government
relied
in
returning
the
indictment against the defendant, the discovery of which said objects is necessary to the preparation of the defendant's defense. k.
The results of all scientific testing performed and
conclusions reached in connection with the investigation of this case and the raw data or samples used in performing any tests. l.
Any and all items seized from the defendant and his
unindicted co-defendant at the time of their respective arrests and seized as a result of the execution of search warrants. 3
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m. government
Any and all photographic line-ups submitted to any
witness,
whether
or
not
such
photographic
line-up
resulted in the identification of the defendant. n.
Copies of any and all statements, written or oral,
made by Lawrence Alvin Lovette regarding his participation in the murder of Abhijit Mahato, including the name and address of the person(s) to whom the statements were made.
The government has
alleged as one of the aggravating factors in this action that the Defendant involved a juvenile in the commission of the crime.
This
information is relevant to such factor as well as to the mitigating factor that an equally culpable defendant is not facing the death penalty. o.
A list of all offenses, including the names and
race of the defendant(s) and the victim(s), occurring since 1994 in any of the counties in the Middle District of North Carolina ,where an individual allegedly committed a crime which could have been charged as a Federal death penalty-eligible offense involving carjacking, kidnaping or use of a firearm in the commission of a crime of violence or drug trafficking offense which resulted in the death of the victim. p.
A statement detailing whether or not the United
States Attorney General was requested
to authorize the death
penalty by the United States Attorney for the Middle District of North Carolina in any case covered by paragraph (o). q.
The name(s) and a brief summary, including the race
of the defendant(s) and any alleged victim(s), of all cases that 4
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have been submitted by the U.S. Attorney for the Middle District of North Carolina for approval in Washington, D.C. by an appropriate official in the Justice Department for prosecution of the case as a death penalty case since 1994; r.
All internal notes, documents or memoranda of any
kind within the United States Attorney’s Office for the Middle District of North Carolina and all internal notes, documents or memoranda of any kind within the United States Justice Department which
relate
in
any
way
to
the
selection
of
this
case
for
prosecution by the United States Attorney’s Office in the Middle District of North Carolina and which relate in any way to the authorization of the death penalty in this case. s.
The entire prosecution memorandum prepared within
the United States Attorney’s Office for the Middle District of North Carolina, the United States Department of Justice and/or the United States Attorney General prior to the decision to authorize the prosecution to seek the death penalty in this case. t.
Any written statements or internal memoranda by the
Attorney General Mukasey justifying his decision to authorize death in this case, as well as any written statements or internal memoranda by Attorney General Holder justifying his decision not to de-authorize the pursuit of the death penalty in this action. u.
Any and all information and material known to the
government which may be favorable to the defendant on the issues of guilt or punishment within the scope of Brady v. Maryland, 373 U.S. 83 (1963). 5
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v.
The
existence
and
substance
of
any
payments,
promises of immunity, leniency, or preferential treatment made to prospective government witnesses within the scope of United States v. Giglio, 405 U.S. 150 (1972) and Napue v. Illinois, 360 U.S. 264 (1959). w.
A
record
of
prior
convictions
of
any
alleged
co-defendant, accomplice, informant or witness who will testify for the government at trial. x.
The identities of any confidential informants who
were actual participants in criminal activities.
This request is
made pursuant to Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957). Respectfully submitted this the 28th day of October, 2009.
/s/ Gregory Davis GREGORY DAVIS Senior Litigator North Carolina State Bar No. 7083 251 N. Main Street, Suite 849 Winston-Salem, NC 27101 (336) 631-5278 E-mail: greg_davis@fd.org /s/Kimberly C. Stevens Kimberly C. Stevens Attorney for Defendant NC State Bar No. 20156 532 Ivy Glen Dr. Winston-Salem, NC 27127 336-788-3779 Email: kimstevensnc@aol.com
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CERTIFICATE OF SERVICE I hereby certify that on October 28, 2009, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Mr. Clifton T. Barrett Assistant United States Attorney P. O. Box 1858 Greensboro, NC 27402 Respectfully submitted, /s/ Gregory Davis GREGORY DAVIS Senior Litigator North Carolina State Bar No. 7083 251 N. Main Street, Suite 849 Winston-Salem, NC 27101 (336) 631-5278 E-mail: greg_davis@fd.org
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