Court filing

RESPONSE by United States of America TO STANDARD DISCOVERY… — United States of America v. Breckenridge (Dkt. 21)

Record facts

Court	U.S. District Court for the Southern District of West Virginia
Filed	2022-05-17

U.S. District Court for the Southern District of West Virginia · No. 2:22-cr-00084 · Doc. 21 · 2022-05-17 · Docket on CourtListener

Summary

The government's response to the defendant's standard discovery requests and request for reciprocal discovery in United States of America v. Malik Breckenridge, No. 2:22-cr-00084, in the U.S. District Court for the Southern District of West Virginia, filed May 17, 2022 as Doc. 21. Under Rule 16 and the arraignment order entered May 4, 2022, it answers Requests A to M, pointing to memoranda of interviews with the West Virginia State Police, loan applications, grand jury responses and a grand jury transcript. Under Rule 404(b) it gives notice that it plans to introduce evidence of PPP loan draws and the defendant's statements to law enforcement. It asks the court to take judicial notice that Charleston, Kanawha County is within the district and requests reciprocal discovery within 14 days. It is signed by Assistant United States Attorney Kathleen E. Robeson.

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Full text

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON

UNITED STATES OF AMERICA

CRIMINAL NO. 2:22-cr-00084

MALIK BRECKENRIDGE

RESPONSE OF THE UNITED STATES OF AMERICA
TO DEFENDANT'S STANDARD DISCOVERY REQUESTS AND
REQUEST OF THE UNITED STATES FOR RECIPROCAL DISCOVERY

Pursuant to Rule 16 of the Federal Rules of Criminal Procedure, Rule 16.1(a) of the Local
Rules of Criminal Procedure, and the Arraignment Order and Standard Discovery Request entered
by the Court in this case on May 4, 2022, the United States of America, by counsel, herewith
responds to each of defendant's Standard Discovery Requests.
At the outset, the United States notes that, with this Response, it is providing materials
through USAFx. The materials on USAFx are organized into folders and sub-folders, including
criminal history, grand jury responses, grand jury transcript, and memoranda of interviews
(MOIs) and a Bates Log has also been provided.

Request A: Disclose to defendant the substance of any relevant oral statement made
by defendant, whether before or after arrest, in response to interrogation by a person the
defendant knew was a government agent if the government intends to use the statement at
trial. [Fed. R. Crim. P. 16(a)(1)(A)]

Response: See the MOI’s of defendant’s interviews with the West Virginia State Police
on September 16, 2021, February 10, 2022, and April 6, 2022.

Case 2:22-cr-00084 Document 21 Filed 05/17/22 Page 1 of 6 PageID #: 56

Request B: Disclose to defendant and make available for inspection, copying or
photographing, all of the following:

(i) Any relevant written or recorded statement by the defendant if the statement is
within the government's possession, custody, or control; and the attorney for the government
knows--or through due diligence could know--that the statement exists. [Fed. R. Crim. P.
16(a)(1)(B)(i)]

Response: Enclosed on the disc are various documents that were authored, authorized,
signed or may otherwise be deemed to be statements of the defendants, including but not limited
to loan applications. See also Response to Request A.

(ii) The portion of any written record containing the substance of any relevant oral
statement made before or after arrest if the defendant made the statement in response to
interrogation by a person the defendant knew was a government agent. [Fed. R. Crim. P.
16(a)(1)(B)(ii)]

Response: There are no known records of this kind at this time. The United States reserves
the right to supplement its response.

(iii) The defendant's recorded testimony before a grand jury relating to the charged
offense. [Fed. R. Crim. P. 16(a)(1)(B)(iii)]

Response: Defendants did not testify before a grand jury relating to the charged offenses.

Request C: Where the defendant is an organization, e.g., a corporation, partnership,
association or labor union, disclose to the defendant any statement described in Fed. R. Crim.
P. 16(a)(1)(A) and (B), if the government contends that the person making the statement (i)
was legally able to bind the defendant regarding the subject of the statement because of that
person's position as the defendant's director, officer, employee, or agent; or (ii) was
personally involved in the alleged conduct constituting the offense and was legally capable to
bind the defendant regarding that conduct because of that person's position as the
defendant's director, officer, employee, or agent. [Fed. R. Crim. P. 16(a)(1)(C)]

Response: Not applicable.

Request D: Furnish the defendant with a copy of defendant's prior criminal record
that is within the government's possession, custody, or control if the attorney for the
government knows--or through due diligence could know--that the record exists. [Fed. R.
Crim. P. 16(a)(1)(D)].
Case 2:22-cr-00084 Document 21 Filed 05/17/22 Page 2 of 6 PageID #: 57

Response: The United States reserves the right to supplement this response.

Request E: Permit the defendant to inspect and to copy or photograph books, papers,
documents, data, photographs, tangible objects, building or places, or copies or portions of
any of those items, if the item is within the government's possession, custody or control, and
(i) the item is material to preparing the defense; (ii) the government intends to use the item
in its case-in-chief at trial; or (iii) the item was obtained from or belongs to defendant. [Fed.
R. Crim. P. 16(a)(1)(E)]

Response: The United States does not object to this request. Moreover, the following
categories of documents and records are enclosed are provided with this response: grand jury
responses, grand jury transcript, and memoranda of interviews (MOIs).

Request F: Permit the defendant to inspect and to copy or photograph the results or
reports of any physical or mental examination and of any scientific tests or experiment if (i)
the item is within the government's possession, custody, or control; (ii) the attorney for the
government knows--or through due diligence could know--that the item exists; and (iii) the
item is material to preparing the defense or the government intends to use the item in its
case-in-chief at trial. [Fed. R. Crim. P. 16(a)(1)(F)]

Response: The United States reserves the right to supplement its Response to this request,
but does not have any applicable items to produce at this time.

Request G: Give to the defendant a written summary of any testimony the
government intends to use under Rules 702, 703 or 705 of the Federal Rules of Evidence
during its case-in-chief at trial. If the government requests discovery under Federal Rules of
Criminal Procedure 16(b)(1)(C)(ii) and the defendant complies, the government must, at the
defendant's request, give to the defendant a written summary of testimony that the
government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as
evidence at trial on the issue of the defendant's mental condition. The summary must
describe the witness's opinions, the bases and reasons for those opinions, and the witness's
qualifications. [Fed. R. Crim. P. 16(a)(1)(G)]

Response: None noted at this time. The United States reserves the right to supplement its
Response to this request.

Request H: Disclose to defendant all evidence favorable to defendant, including
impeachment evidence, and allow defendant to inspect, copy or photograph such evidence.
Case 2:22-cr-00084 Document 21 Filed 05/17/22 Page 3 of 6 PageID #: 58

Response: The United States is unaware of any such evidence other than what has already
been provided in the attached production.

Request I: Notify defendant of all evidence the government intends to introduce
pursuant to Rule 404(b) of the Federal Rules of Evidence.

Response: The United States plans to introduce evidence of both draws defendant received
from PPP loans and his statements given to law enforcement during the investigation. The United
States believes this evidence is intrinsic to the charged offense but if the Court does not find this
evidence is intrinsic to the defendant’s scheme to defraud, the United States plans to introduce this
evidence as 404b evidence of the defendant’s intent, knowledge, motive or absence of mistake.

Request J: Disclose to defendant all reports of government "mail cover," insofar as
the same affects the government's case against the defendant or any alleged aiders and
abettors or co-conspirators.

Response: Not applicable.
Request K: Disclose to defendant any matter as to which the government will seek
judicial notice.

Response: The United States will seek judicial notice that Charleston, Kanawha County
is within the Southern District of West Virginia.

Request L: Disclose to defendant and make available for inspection, copying or
photographing, the results of any interception of a wire, oral or electronic communication in
the possession, custody or control of the government, the existence of which is known, or by
the exercise of due diligence could become known, to the attorney for the government, which
contains any relevant statement made by the defendant or which is material to the
preparation of the defendant's defense or which is intended for use by the government as
evidence in its case-in-chief at the trial. For each such interception, disclose (1) any
application for an order authorizing the interception of a wire or oral communication; (2)
any affidavits filed in support thereof; and (3) any court order authorizing such interception.

Response: Not applicable, the United States reserves the right to supplement its Response
to this request as necessary.
Case 2:22-cr-00084 Document 21 Filed 05/17/22 Page 4 of 6 PageID #: 59

Request M: Provide notice to defendant of the government's intention to use evidence
pursuant to Rule 12(b)(4)(B) of the Federal Rules of Criminal Procedure.

Response: The United States reserves the right to use all information and evidence
disclosed herein or made available for inspection and copying pursuant to this Response and such
information and evidence which may be discovered and finally provided to defendant.

Any discovery provided that is not mandated by Court order, the Federal Rules of Criminal
Procedure, federal statute or federal case law, is provided voluntarily as a matter of discretion
solely to expedite and facilitate litigation of this case.
REQUEST OF THE UNITED STATES FOR RECIPROCAL DISCOVERY

Pursuant to Rules 16.1(b) and 16.1(d) of the Local Rules of Criminal Procedure, the United
States of America requests that defendant provide all applicable reciprocal discovery within 14
days of the service of this response and the provision of materials requested by defendant in the
Standard Discovery Request.
Respectfully submitted,

WILLIAM S. THOMPSON
United States Attorney

By:
/s/ Kathleen E. Robeson
KATHLEEN E. ROBESON
Assistant United States Attorney
VA Bar No. 89526

300 Virginia Street, East

Room 4000

Charleston, WV 25301

Telephone: 304-345-2200

Fax: 304-347-5104

Email: kathleen.robeson@usdoj.gov

Case 2:22-cr-00084 Document 21 Filed 05/17/22 Page 5 of 6 PageID #: 60

CERTIFICATE OF SERVICE
It is hereby certified that the foregoing “RESPONSE OF THE UNITED STATES OF
AMERICA TO DEFENDANT'S STANDARD DISCOVERY REQUESTS AND REQUEST OF
THE UNITED STATES FOR RECIPROCAL DISCOVERY” has been electronically filed and
service has been made on opposing counsel by virtue of such electronic filing this 17th day of
May, 2022.

/s/ Kathleen E. Robeson
KATHLEEN E. ROBESON
Assistant United States Attorney
VA Bar No. 89526