E:\Exams\MOSKOV~1\Crim Pro 2 Midterm

My client, Dan Doink (D), was indicted by a federal grand jury on January 4, 2000, for selling cocaine, in violation of a federal statute. The indictment says that Dan sold cocaine to Drug Enforcement Agency (DEA) Agent Nick Nark (N) on January 4, 1999, at the corner of 16th and Mission in San Francisco. Dan was arrested on the indictment on February 4, 2000, by Nark. Dan says that he then spoke to Nark about the charge, but didn't admit anything. He was released on bail pending trial, which has been set for April 1, 2000. I'm getting ready for trial, and I have a few questions I need your help on.

2. Dan told me that he was selling cocaine during the month of January, 1999, but he also sold a phony white powder that looked like cocaine. He is not sure which one he sold to Nark (who must have been operating undercover). I'd like to get a sample of the stuff Nark allegedly bought and have it tested. Can I get it?

3. Dan says he was in Iowa visiting his mother on January 4, 1999. He showed me a gasoline credit card receipt in his name showing that the card was used to buy gasoline in Iowa on January 3, 1999. I'd like to use this at trial to show that it was not likely that Dan was in San Francisco on January 4, 1999. I don't want the prosecutor to see it before trial, because then he will have time to investigate whether the card was in fact used by Dan, etc. Is there any way the prosecutor can force me to show him the receipt before trial? Also, Dan's mother might fly in to testify that he was with her on January 4, 1999. Do I have to tell the prosecutor about her before trial?

4. I'm pretty sure that Nark must have written up a report on the incident. I'd love to get hold of it. Is there any way I can get it (or at least parts of it)?

5. Dan tells me that there were several guys selling cocaine at 16th and Mission, but he was the only one arrested. He was also the only white guy. He thinks that the DEA is looking to charge white guys because DEA has been accused of going after Blacks and Hispanics for selling cocaine. I'd like to see DEA's files on their arrests and investigations to see if I can build a case on this. Any chance?

CRIMINAL PROCEDURE II

Professor Moskovitz

MIDTERM EXAM - OUTLINE OF ISSUES

Monday, March 20, 2000

10:15 to 11:15 a. m.

1. Speedy Trial: No right to Speedy Trial till D arrested or indicted. Lovasco.

2. Discovery: Can D get sample of powder?

Yes. Rule 16(a)(1)(c) allows this.

3. Discovery:

a. Can P get credit card receipt?

Rule 16(b)(1)(A)allows this if D requests discovery under Rule 16(a)(1)(c).

b. Can P get info re D's mother before trial?

Yes, if P uses notice of alibi request allowed by Rule 12.1.

4. Discovery: N's Report

Protected from general discovery by Rule 16(a)(2).

But if P uses notice of alibi procedure, D can get names of any witnesses in report. Rule 12.1(b)

D can get any statements he mad in response to interrogation. Rule 16(a)(1)(A)

D can get report during trial, after N testifies. Jencks Act and Rule 26.2.

If report contains any exculpatory material, Brady requires P to show it to D.

Simply ask P for it.

5. Discovery & Selective Prosecution

D must present prima facie case before discovery is allowed. Armstrong.

Must show intent to discriminate re race, as well as effect.

Disproportionate statistics alone won't do it.

Compare arrests for cocaine sales in state cases.