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United States v. Hamzeh

United States District Court, E.D. Wisconsin

August 28, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
SAMY M. HAMZEH, Defendant.

          ORDER DENYING DEFENDANT'S SIXTH MOTION TO COMPEL

          WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE

         Samy M. Hamzeh is charged with unlawfully possessing two machineguns and a silencer. (ECF No. 6.) His defense is that he was entrapped by two government informants, who are commonly referred to as Mike and Steve. A jury trial is scheduled to begin on October 21, 2019.

         A trial had been previously scheduled for August of 2018. In preparation for that trial, the government and the defense met to discuss the availability of witnesses. Following that meeting, on June 11, 2018, defense counsel memorialized their understanding in an email to the prosecutors, which states in relevant part:

2. We understand that [Mike] and [Steve] both will be present at trial and available as witnesses. Greg most recently confirmed that they would be available during a conversation we had on Tuesday. Please advise if we are mistaken in this understanding.
3. We understand that the government will make any agents who participated in this investigation available for testimony at trial with notice to your office. Please advise if we are mistaken in this understanding.

         (ECF No. 248 at 4.)

         In June of 2018, Steve bought a plane ticket and flew back to his home in Jordan. The government understood that Steve planned to return to Milwaukee for the August trial. That trial was adjourned, and Steve did not return to Milwaukee. It was not until July 31, 2019, that the government told the defense that Steve was in Jordan and might not return for the October 21 trial. (ECF No. 248 at 2.)

         Hamzeh argues that he and the prosecution had an agreement that Steve would appear at trial and the prosecution is required to honor that agreement. Having been informed that the prosecution will not honor that agreement, Hamzeh filed a motion to compel certain discovery so he can decide how to proceed in light of the government's breach of their agreement. (ECF No. 244.) Hamzeh asks the court to order the government to produce:

1. Steve's immigration file, which is commonly referred to as the A File.
2. All communications between Steve and the agents. This includes all emails, text messages, or other digital communication.
3. All rough notes (including interview notes) with Steve by the agents or the prosecutors in this case. We are told that Steve left weeks before the previously scheduled trial, the defense is entitled to know whether in witness prep his testimony changed.
4. Reports of when Steve entered and left the United States. This should also include whether any of these tickets were purchased by the government. From text messages that we have, it's clear that on at least one occasion agents purchased an airline ticket for him.
5. All emails and phone numbers that the government (prosecutors or agents) have ...

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