UNITED STATES DISTRICT COURT

______________ DISTRICT OF TEXAS

____________________ DIVISION

UNITED STATES OF AMERICA	§
						§
V.						§	CAUSE NO. 
						§
______________________ 		§

DEFENDANT’S MOTION FOR SPECIFIC DISCOVERY 

TO THE HONORABLE _____________________ JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE ____________ DISTRICT OF TEXAS:

	NOW COMES Defendant ______________, by and through his undersigned attorney, and files this Motion for Specific Discovery, and would show this Honorable Court as follows.
	Pursuant to Federal Rule of Criminal Procedure, Rule 16, and  Brady v. Maryland, 373 U.S. 83 (1963), __________ through his counsel requests disclosure of and access to the following:
	I
	A copy of the hard drive from ___________ computer, confiscated by Government agents during their investigation of this case.  Federal Rule of Criminal Procedure 16 (a)(1)(C) provides that, upon request, the government shall permit the defendant to inspect and copy tangible objects, in its possession, which were obtained from or belong to the defendant.  The Court has issued a general discovery order in this case requiring the Government to comply with the requirements of Rule 16(a)(1)(C).  See Court’s Order, April 25, 2002, Dkt.# 54.  To date, ___________ has not been furnished with a copy of the confiscated hard drive despite prior requests.  Access to this evidence is necessary for ____________ preparation of the defense in this case.
II.
	_____________ also specifically requests any and all physical evidence that the Government intends to use in its case-in-chief, including but not limited to audio tapes of conversations between _____________ and the government agents involved in a covert “sting” operation.  The affidavit filed in support of the search warrant application refers to five such audio tapes.  To date the defense has been furnished with only two of these tapes.  Rule 16(a)(1)(C) requires disclosure of these additional audio tapes if the Government intends to use them in its case-in-chief.  
	Even if the Government does not intend to use these additional tapes in its case-in-chief, disclosure may nonetheless be required.  Under Brady v. Maryland, 373 U.S. 83 (1963), disclosure of both exculpatory and impeachment evidence favorable to the accused is required. The Government must prove that ___________ did not subjectively believe that he was meeting a legitimate medical need in dispensing the controlled substances.  See United States v. Norris, 780 F.2d 1207, 1209 (5th Cir. 1986) (jury was correctly charged that it must determine whether physician “prescribed drugs for what he subjectively considered a legitimate medical purpose”).  To the extent that the additional audio tapes from the “sting” operation reflect that __________ subjectively believed that he was prescribing the drugs for a legitimate medical purpose, those audio tapes contain exculpatory evidence.  As such, disclosure is required under both Brady and the Court’s general discovery order. 
	Finally, even if the audio tapes do not contain exculpatory evidence, disclosure of these additional tapes is required under Federal Rule of Criminal Procedure 16 (a)(1)(A), as the tapes contain statements of the defendant.  Rule 16(a)(1)(A) requires that the Government disclose any relevant,  written or recorded statements made by the defendant, that it might have in its possession or control.  These tapes purportedly contain conversations between _________ and persons whom he was led to believe were seeking his medical services.  These recorded statements are potentially relevant to the practice at issue in the dispensing of a controlled substance count.  As such, Rule 16 (a)(1)(A) and this Court’s general discovery order require disclosure of these tapes.
III
	__________ requests that the Government turn over any and all evidence that is exculpatory in nature, including but not limited to evidence that  may be used to impeach any of the Government’s witnesses.  This evidence includes the conditions of any plea agreement entered into between the Government and any testifying co-defendant that provides for a recommendation of a sentence reduction or any other favorable consideration in exchange for the co-defendant’s testimony against ___________.  Such evidence would also include any immunity agreement the Government entered into with any witness.  See Brady, 373 U.S. 83, 87 (prosecution’s suppression of evidence favorable to the accused amounts to denial of due process); see also Giglio v. United States, 405 U.S. 150, 154 (“When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within [the Brady] rule.”) (internal quotations omitted); DiLosa v. Cain, 279 F.3d 259, 262–63 (5th Cir. 2002) (Brady requires disclosure of both exculpatory and impeachment evidence favorable to the accused); Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994) (same).
	Exculpatory evidence would also include the government agents’ investigation notes documenting their interviews with __________ former patients.  To the extent that these notes reflect _________ subjective belief that he was dispensing the prescriptions in order to meet a patient’s legitimate medical needs, these notes contain exculpatory evidence and must be disclosed. 
IV
	____________ also requests copies of certain medical records in the Government’s possession.  Counsel for the Government has informed the defense that some of _________ former patients have suffered deleterious health effects as a direct result of his allegedly criminal conduct.  There are over ten thousand prescriptions potentially at issue in this prosecution.  While _________ has access to these voluminous prescription records, he has not been provided medical or hospitalization records of the specific patients the Government claims have suffered adverse effects as a result of _________ conduct.   Rule 16(a)(1)(C) requires disclosure of the records if the Government intends to use them in its case-in-chief.
	In addition, Rule 16(a)(1)(F) provides that at defendant’s request, the Government must disclose “any results or reports of physical or mental examinations. . .which are within the possession, custody, or control of the government. . .and which are material to the preparation of the defense.”  The requested medical records are material to the preparation of the defense because they are necessary to determine the extent to which the purported health problems suffered by these individuals resulted from prescriptions obtained from Pill Box Pharmacy. 	
	For this reason, _________ respectfully moves this Honorable Court to grant his Motion for Specific Discovery.						

						Respectfully submitted.
						______________________________							
						Attorney for Defendant

CERTIFICATE OF SERVICE
	I hereby certify that I served a copy of the foregoing Motion for Specific Discovery  on the United States Attorney for the Western District of Texas (ATTN: Assistant U.S. Attorney __________), by mailing it to his at ____________ , on ___________________.

						Attorney for Defendant

UNITED STATES DISTRICT COURT
_________ DISTRICT OF TEXAS
______________ DIVISION

UNITED STATES OF AMERICA	§
  §
V.	                                                        §		NO. ______________
  §
________________	                                 §	

O R D E R
	On this date came to be considered Defendant’s Motion for Specific Discovery  under Rule of Criminal Procedure 16,  Brady v. Maryland, 373 U.S. 83 (1963); and Giglio v. United States, 405 U.S. 150 (1972), and the motion is GRANTED.
	The Government is hereby ORDERED to furnish the defense with a copy of the hard drive from ____________ computer, which was confiscated by government agents during the investigation of the case.
	The Government is further ORDERED to furnish the defense with copies of the requested audio tapes of conversations between _____________ and the government agents engaged in the covert “sting” operation in this case.
	The Government is further ORDERED to furnish the defense with copies of any plea or immunity agreement that the Government entered into with any witness in this case including any testifying co-defendant.
	The Government is further ORDERED to furnish the defense with copies of its investigative notes that contain exculpatory evidence bearing on ___________ subjective beliefs about whether the drugs prescribed,  at issue in this prosecution, were proscribed to meet a legitimate medical need of the patient.
	The Government is further ORDERED to furnish the defense with copies of medical records in its possession pertaining to former patients of _________ whom the Government claims suffered adverse health effects resulting from ____________ allegedly criminal conduct.
	Regardless of any prior disclosures, the Government is under a continuing duty to disclose discoverable evidence.  Therefore, if prior to or during trial, the Government should discover additional evidence or material previously requested or ordered, which is subject to discovery or inspection, the attorney  for the Government shall promptly notify Defendant’s counsel or the court of the existence of the additional evidence or material.
	ORDERED on this the                    day of                                        , 20___.

						                                                               
United States District Judge