Court filing

Information - United States v. Maurice Fayne related docket

Record facts

Court	U.S. District Court for the Northern District of Georgia
Filed	2022-06-23

U.S. District Court for the Northern District of Georgia · No. 1:20-cr-00228-MHC-JKL · Doc. 271 · 2022-06-23 · Docket on CourtListener

Summary

A Motion for Production of Pre-Sentence Reports of Government Witnesses, filed June 23, 2022 as Document 271 in United States of America v. Daniel Eric Jay, No. 1:20-cr-00228-MHC-JKL, in the U.S. District Court for the Northern District of Georgia. The defendant asks the court to order disclosure of the pre-sentence reports of all government witnesses expected to testify at trial or, alternatively, to review them in camera. The motion states that the government has entered into plea agreements with individuals including Maurice Fayne and Michael Sargent, and argues the reports may hold exculpatory, impeachment or Jencks Act material, including findings on loss amount and restitution. It cites United States v. Figurski, 545 F.2d 389 (4th Cir. 1976), and Brady v. Maryland, 373 U.S. 83. It is signed by defense attorney L. Burton Finlayson.

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Full text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA
)

)
)
v.
) 1:20-CR-228-2 (MHC) (JKL)
)
)
DANIEL ERIC JAY
)
____________________________
)
MOTION FOR PRODUCTION OF PRE-SENTENCE
REPORTS OF GOVERNMENT WITNESSES
COMES NOW the Defendant, DANIEL ERIC JAY, by and through
counsel, and hereby moves this Honorable Court to Order the disclosure and
production of the pre-sentence reports (PSRs) of all Government witnesses
expected to testify at trial. In the alternatively Defendant asks this Court to
conduct an in camera hearing to determine the contents of the pre-sentence
reports. As grounds therefore, the Defendant states as follows:
1.
It is the Defendant’s belief that the Government will seek to elicit testimony
at trial from several codefendant witnesses who have been convicted and
sentenced by this Court.
Case 1:20-cr-00228-MHC-JKL Document 271 Filed 06/23/22 Page 1 of 6

2.
Specifically, Defendant respectfully shows that in this case the Government
has entered into plea agreements with various individuals, including but not
limited to MAURICE FAYNE, MICHAEL SARGENT1 and others.
3.
Once the pleas of guilty were entered, as a matter of procedure, pre-sentence
investigation reports, “PSR’s”, were generated. Defendant respectfully submits
that information contained in the Pre-sentence Investigation Reports will or has
the potential to be favorable to this Defendant and should therefore be
produced in relevant part to defense counsel. At a minimum, this Honorable Court
should review the reports in camera and provide those portions to the Defendant
which the Court finds to be exculpatory or impeachment material, Giglio material
or producible under the Jencks Act.
4.
As this Court is well aware, pre-sentence investigation reports are prepared
by the probation service of each Federal District to assist the Court in sentencing
defendants. See, Federal Rules of Criminal Procedure - Rule 32(c). The reports
1Michael Sargent also has a prior federal conviction from the Northern District of Texas,
Criminal No: 3:02-cr-00212. Mr. Jay requests production of this PSR as well.
2
Case 1:20-cr-00228-MHC-JKL Document 271 Filed 06/23/22 Page 2 of 6

contain information on the circumstances surrounding the offender’s crime, the
offender’s background, criminal history, mental health, drug abuse or addiction
history, and the offender’s version of the offense. See generally, Fennell and Hall,
Due Process at Sentencing: An Empirical and Legal Analysis of the Disclosure of
Pre-sentence Reports in Federal Courts, 93 Harv.L.Rev. 1613, 1621-1630 (1980).
Additionally, in this case the PSR’s contain statements and findings relating to
loss amount and restitution which likely will be contested by the Defendant at his
trial.
5.
Rule 32(c) is silent as to disclosure of pre-sentence reports to a third party.
However, in United States v. Figurski, 545 F.2d 389, 391 (4th Cir. 1976), the
Fourth Circuit held that disclosure of a pre-sentence report to a third party should
be made where the lifting of confidentiality is required to meet the ends of justice.
The Figurski Court went on to conclude that if the report contains exculpatory
material, that portion of the report must be disclosed. In addition, if the report
contains material which could be used to impeach the witness, disclosure is
required where there is a reasonable likelihood that such information would affect
the trier of fact. The Seventh Circuit in United States v. Anderson, 724 F.2d 596,
598 (7th Cir. 1984), stated that when a defendant suspects that a witness’s
3
Case 1:20-cr-00228-MHC-JKL Document 271 Filed 06/23/22 Page 3 of 6

presentence report contains impeachment material, he should request the trial
court to make an in camera examination of the report. The Court in Anderson held
that if it is found that there is any impeachment material in the report, this
information should be revealed to the Defendant as well.
6.
The Government should state whether or not they will call witnesses during
the trial who are now incarcerated or who have been convicted of federal criminal
offenses. Defendant further contends that pre-sentence reports were filed with
regard to these individuals. The information in these reports is not only
exculpatory in nature, but also vital for impeachment purposes. As such, this
information should be made available to the Defendant as required by Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), and its progeny.
7.
The pre-sentence report will usually contain the Defendant’s version of the
offense. Furthermore, any offense conduct paragraphs which were not objected to,
are deemed to be adopted by the Defendant as a statement of fact. As such, such
information should be disclosed pursuant to the Jencks Act, Title18, United States
Code Section 3500.
4
Case 1:20-cr-00228-MHC-JKL Document 271 Filed 06/23/22 Page 4 of 6

WHEREFORE, Defendant DANIEL ERIC JAY respectfully prays this
Honorable Court enter an Order requiring the Government to disclose the
existence of and produce any and all pre-sentence reports of all Government
witnesses or, alternatively, that the Court examine these reports in camera and
disclose those portions to the Defendant which this Court finds to be exculpatory
or impeachment material.
Dated: This 23rd day of June, 2022.
Respectfully submitted,

s/ L. Burton Finlayson
L. BURTON FINLAYSON
Attorney For DANIEL JAY
Georgia Bar Number: 261460
LAW OFFICES OF
L. BURTON FINLAYSON, LLC
931 Ponce de Leon Avenue, NE
Atlanta, Georgia 30306
(404) 872-0560
lbfcourts@aol.com
5
Case 1:20-cr-00228-MHC-JKL Document 271 Filed 06/23/22 Page 5 of 6

CERTIFICATE OF SERVICE
This is to certify that I have this day electronically filed the foregoing
Motion for Production of PSRs with the Clerk of Court using the CM/ECF system
which will automatically send email notifications of such filing to all counsel of
record including the following:
Mr. Russell Phillips .
Assistant United States Attorney
600 U.S. Courthouse
75 Ted Turner Drive, S. W.
Atlanta, Georgia 30303
DATED: This 23rd day of June, 2022.
s/ L. Burton Finlayson
L. BURTON FINLAYSON
ATTORNEY FOR DANIEL JAY
State Bar Number: 261460

6
Case 1:20-cr-00228-MHC-JKL Document 271 Filed 06/23/22 Page 6 of 6

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