The opinion of the court was delivered by: DUFFY
KEVIN THOMAS DUFFY, D.J.:
Defendants Ferguson and Joseph filed supplemental motions on January 3, 1983, in response to the third superseding indictment. The government has fully complied with requests 2(c), 2(d), 2 (f), 2(h), 2(i) and 2(j). Only the contested requests, therefore, will be discussed herein.
1. Discovery and Particulars
a. Photos of Shakur, Dalton, and Rosenberg
Defendants request photographs of their fugitive co-defendants "which we need in our investigation as we prepare for trial." This request is denied. Fed.R.Crim.P. 16(a)(1)(C) states that the government shall permit inspection of photographs "material to the preparation of [the] defense." Other than an amorphous investigative "need" for these photos, no basis is offered in support of this motion. The government, pursuant to Rule 16, will provide copies to the defense of any photographs of fugitive co-defendants that it intends to introduce in its direct case at trial.
b. Photos of Samuel Brown, Kamau Bayette, and Tyrone Rison
The defendants request photographs of these unindicted co-conspirators whom they believe are government informants. These photos are "needed in our [defense] investigation." This request is denied. As in (a) above, there is no basis to support this vague request. Furthermore, the potential danger posed to unindicted conspirators who might testify against the defendants militates against disclosure of these photos. Again, if any such photos are intended to be offered at trial, the government must produce copies to the defendants in accordance with Rule 16.
I ordered the government in my February 25, 1983 endorsement to turn over all Brady material relevant to these defendants' prior motions. This order is hereby expanded to include all Brady material on this indictment. The March 21, 1983 trial date is imminent and necessitates trial preparation by both sides.
The government has stated that it recognizes its duty under Brady v. Maryland, to produce prior to trial exculpatory evidence that might affect the outcome of the trial. See United States v. Agurs, 427 U.S. 97, 104, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976). It is the prosecutor who decides what evidence, if any, should be voluntarily submitted to defense counsel in accordance with Brady. Id. at 107. The district court judge only becomes involved in matters of pre-trial discovery of Brady material in those extraordinary instances in which information is submitted for in camera review. Otherwise, the prosecution must be aware of its obligations and is expected to act accordingly and not to "sparingly produce" exculpatory evidence. United States v. Shields, 675 F.2d 1152, 1160 (11th Cir.), cert. denied, 459 U.S. 858, 103 S. Ct. 130, 74 L. Ed. 2d 112 (1982).
In this case, Judge Weinfeld did not require the government to disclose to defense counsel the identity and statements of all eyewitnesses who failed to identify a particular defendant. 543 F. Supp. 1059, 1061. The government has agreed to "inform counsel of the approximate number of witnesses who were afforded an opportunity, but failed, to identify their clients, and will give them an opportunity to interview any eyewitness whose identification statements exculpate the defendant." January 25, 1983 Affidavit of Stacey J. Moritz at 6. I can only emphasize at this time the government's duty under Brady and note the possibility that evidentiary omissions on the issue of identification may in certain circumstances constitute constitutional error. United States v. Agurs, 427 U.S. at 112-13, n.21. Any judicial determination, however, on possible violations of Brady must include an evaluation of the entire record and can only appropriately be made post-trial. Id.; United States v. Spitz, 678 F.2d 878, 882 (10th Cir. 1982).
The April, 1980 Inwood robbery is included as a predicate act of racketeering in para. 6(c) of the indictment. The government does not allege and indicates that it does not intend to offer proof at trial that Ferguson was involved in this robbery. It is therefore unnecessary for the ...