United States District Court, N.D. California
ORDER RE: DEFENDANT'S MOTION TO COMPEL DISCOVERY [DOCKET No. 67].
DONNA M. RYU, Magistrate Judge.
Defendant Frank Anthony Morton filed a motion to compel discovery from the government. [Docket No. 67.] For the reasons stated below, the motion is denied.
On August 29, 2013, the government filed a criminal complaint against Morton and his co-defendant Miguel Angel Nunez, charging both with conspiracy to distribute cocaine. [Docket No. 1.] In a superceding indictment filed on October 3, 2013 against both defendants, Morton was charged with conspiracy to possess with intent to distribute and to distribute cocaine, and possession with intent to distribute cocaine, stemming from Morton's delivery of cocaine to a confidential government source ("CS") on August 28, 2013. [Docket No. 31.]
Two events are germane to the analysis of Defendant's motion. One transpired on August 12, 2013 and the other on August 28, 2013.
A. August 12, 2013 Drug Transaction
On August 12, 2013, Nunez engaged in a drug transaction. The parties agree that Morton was not involved. In this incident, Nunez sold the CS nine ounces of cocaine in the parking lot of a Walmart in Oakland. See Motion at 3; Nunez Plea Agreement [Docket No. 65] at 3-4. Nunez drove to the parking lot, exited his vehicle, walked over to the CS's car, and entered it. Motion at 3. The drug transaction took place in the car. Id.
B. August 28, 2013 Drug Transaction
In late August 2013, Nunez called the CS and discussed the possibility of doing a drug deal in the coming days. Id. On August 28, 2013, Nunez called the CS and they agreed to meet at the same Walmart parking lot at 1:00 p.m. Motion at 3-4; Opp. [Docket No. 72] at 2. At approximately 12:58 p.m., Nunez arrived at the Walmart parking lot driving a white panel truck. Motion at 3-4; Opp. at 2. Morton, who is Nunez' nephew, was sitting in the passenger seat of Nunez's vehicle. Id. At approximately 1:01 p.m., Morton exited the white panel truck and walked across the parking lot and entered a nearby Game Stop store. Motion at 4; Opp. at 2. Nunez initially intended for the CS to pick up the cocaine from Nunez's car, but because the CS was unwilling to do so, Nunez went into the Game Stop store and recruited Morton to make the delivery to the CS. Motion at 5. At approximately 1:03 p.m., Nunez exited the panel truck with a white paper bag under his arm and walked into the Game Stop store. Id. Nunez handed Morton a white paper bag. Motion at 4; Opp. at 3. Morton and Nunez then exited the Game Stop store together. Id. While Nunez walked into a nearby Jamba Juice store, Morton walked over to the CS's vehicle, entered the passenger side, closed the door, and placed the white paper bag on the floorboard. Id. Shortly thereafter, agents arrested Morton and Nunez. Id. A substance contained in the white paper bag was later tested at the DEA laboratory and the results showed it contained 1003 grams of cocaine. Opp. at 3.
C. Motion to Compel
Morton moved to compel the government to produce five categories of documents:
1. Audio and video of the August 12, 2013 undercover operation involving the CS and Nunez at the Walmart parking lot;
2. Any rough notes of the Nunez and Morton interviews conducted by federal agents on August 28, 2013;
3. Any "safety valve debrief statements made by Nunez regarding the August 28, 2013 drug transaction, including statements ...