IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA )

)

vs. ) NO. 1:96-CR-158

)

xxxxxxxxxxxxxxxxxxx )

____________________________________)

MOTION TO COMPEL

COMES NOW xxxxxxxxxxx, by and through undersigned counsel, and moves this Court pursuant to Local Rule 225-4 for an Order compelling the production of discovery by the government. In support thereof, Mr. xxxxxx shows the Court as follows:

Mr. xxxxxx was arraigned on March 29, 1996.

Under Local Rule 520-1, the government must make available to the defense at the time of arraignment all materials which are discoverable under Fed. R. Crim. P. 16. At arraignment, the government produced some, but not all, the discovery material in this case.

On April 11, 1996, the defense filed a written motion for discovery. In this motion the defense requested, among other things, the production of tangible objects and Brady materials. The relevant paragraphs from the defendant's motion for discovery read as follows:

4) Brady Materials. The defendant requests all documents, statements, agent's reports, and tangible evidence favorable to the defendant on the issue of guilt and/or which affects the credibility of the government's case. Impeachment as well as exculpatory evidence falls within Brady's definition of evidence favorable to the accused. United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976).

(6) Tangible Objects. The defendant requests, under Fed. R. Crim. P. 16(a)(1)(C), the opportunity to inspect and copy as well as test, if necessary, all physical evidence, other documents and tangible objects, including photographs, books, papers, documents, photographs of buildings or places or copies of portions thereof which are material to the defense or intended for use in the government's case-in-chief, or were obtained from or belong to the defendant....

The government has produced some, but not all, of the discovery requested by the defense. Notably, the government has failed to produced color photographs in the possession of the FBI.

The defense has requested production of these photographs on several occasions. See letter of defense counsel dated June 5, 1996 requesting production of the photographs, attached hereto as Exhibit 1; response by government's counsel dated June 7, 1996, attached hereto as Exhibit 2; and letter of defense counsel dated June 11, 1996, attached hereto as Exhibit 3.

While the government has agreed to produce the requested photographs, it has not produced this evidence to date. The investigator for the defense has placed several telephone calls per week to the case agent to arrange for the production of these photographs, but the agent has not returned the calls. The defense has also attempted to set deadlines for the production of this evidence, for example requesting production of the photographs by June 14, 1996 (See Exhibit 3) to no avail. Therefore, the defense must turn to the Court for an Order requiring the government to produce these photographs by a date certain.

WHEREFORE, the defense prays that this Court grant its motion to compel and order the government to produce the requested photographs on or before July 3, 1996.

Dated: This ___ day of June, 1996.

Respectfully submitted,

_______________________________________

VIONNETTE REYES

ATTORNEY FOR CAREY ANTONIO xxxxxx

STATE BAR NO. 601290

Federal Defender Program, Inc.

Suite 3512, 101 Marietta Tower

Atlanta, Georgia 30303

(404) 688-7530

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA )

)

vs. ) NO. 1:96-CR-158

)

CAREY ANTONIO xxxxxx )

____________________________________)

CERTIFICATE OF GOOD FAITH

Pursuant to Local Rule 225-4, the defense hereby certifies that it has attempted to obtain the requested photographs without burdening the Court. Defense counsel, through telephone calls, has requested production of this information. Moreover, by letters dated June 5 and June 11, 1996, defense counsel has also requested production of this evidence. The investigator for the defense, Lewis Robinson, has placed telephone calls to the case agent several times a week to coordinate production of this evidence.

The defense has made all of these efforts in a good faith attempt to resolve a discovery dispute. Because the defense has been unsuccessful in obtaining this evidence, it now seeks assistance from the Court.

Dated: This ___ day of June, 1996.

___________________________________ _________________________________

LEWIS ROBINSON VIONNETTE REYES

STAFF INVESTIGATOR STATE BAR NO. 601290

CERTIFICATE OF SERVICE

This is to certify that I have served a copy of the foregoing Motion to Compel upon:

Thomas A. Devlin, Esq.

Assistant United States Attorney

1800 Richard B. Russell Building

75 Spring Street, S.W.

Atlanta, Georgia 30335

Joe Plummer, Esq.

Assistant United States Attorney

1800 Richard B. Russell Building

75 Spring Street, S.W.

Atlanta, Georgia 30335

by hand delivery.

Dated: This ___ day of June, 1996.

_______________________________________

VIONNETTE REYES

ATTORNEY FOR xxxxxxxxxxxxxxxxxx

STATE BAR NO. 601290

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