the Court grants Brown's motion to the extent that the government shall 'submit Agent Cipriano's personnel file to the Court for in camera inspection. The file shall be submitted to Chambers by January 4, 1993, in order to allow for inspection prior to Brown's pre-trial hearing. Since the application is granted based on a unique circumstance regarding Agent Cipriano, the application is denied insofar as it seeks production of personnel files for any other agents.
(iv) Brady and Jencks Act Material
Brown and Papajohn move for the production of exculpatory material, although as the government points out, much of the discovery sought consists of impeachment material relating to potential government witnesses. The government indicates that it will disclose impeachment and Jencks Act material one week in advance of the witnesses' testimony. Such a time frame represents an approach that is fully consistent with the law. See 18 U.S.C. § 3500(a); United States v. Zuluaga, 651 F. Supp. 746, 751 (E.D.N.Y. 1986); United states v. Dellacroce, 625 F. Supp. 1387, 1398-99 (E.D.N.Y, 1986). Moreover, defendants have not advanced any compelling need for early disclosure of such material. Given the government's representations, the Court is satisfied that the obligations placed on the prosecution by Brady will not be neglected, although it is nevertheless hereby directed that they be fulfilled. However, the motions seeking early disclosure of impeachment material are denied at this time.
(v) Other Discovery
To the extent that defendants seek discovery of items seized at the time of their arrests and related matters, the government asserts that all such items have been available for inspection by defendants for nearly one year. In addition, Papajohn moves for the preservation of all original tape recordings and handwritten notes by law enforcement agents. The government indicates that all original tape recordings have been preserved. With respect to the handwritten notes, the government persuasively argues that there is no obligation to preserve original handwritten notes prepared by agents where those notes have been formalized into reports. See United States v. Elusma, 849 F.2d 76, 79 (2d Cir. 1988), cert. denied, 489 U.S. 1097 (1989). Accordingly, that aspect of Papajohn's application is denied. In addition, Papajohn's motion for disclosure of "similar acts" is moot inasmuch as defendants already have received copies of their criminal history records pursuant to Rule 16(a)(1)(B) of the Federal Rules of criminal Procedure. Finally, any requests for discovery not specifically addressed above are denied.
VI. Evidence of Prior Convictions
Leonard and Papajohn move in limine to preclude the government from introducing evidence of their prior convictions for narcotics crimes. Papajohn argues that this Court is required to exclude evidence of prior convictions which do not involve dishonesty or false statements where the prejudicial effect outweighs the probative value, under Rule 609 of the Federal Rules of Evidence. On the other hand, the government argues that such evidence is admissible under Rule 404(b) of the Federal Rules of Evidence.
The government has informed defendants that it "may seek to introduce evidence concerning the activities that led to [defendants'] prior narcotics arrests." Govt's Memo. in Opp. at 66. Thus, defendants have been provided with notice far in advance of trial. See Fed. R.Evid. 404(b). In addition, the government contends that such evidence will be admissible depending on the defenses offered at trial.
Federal Rule of Evidence 404(b) provides that prior act evidence "is not admissible to prove the character of a person in order to show action in conformity therewith," but may "be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." This circuit's "inclusionary approach" allows the admission of such evidence "'for any purpose other than to show a defendant's criminal propensity.'" United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990) (quoting United States v. Harris, 733 F.2d 994, 1006 (2d Cir. 1984)), cert. denied, 111 S. Ct. 1397 (1991).
The general test for the admission of prior acts evidence was outlined in Huddleston v. United States, 485 U.S. 681, 99 L. Ed. 2d 771, 108 S. Ct. 1496 (1988). The factors comprising that test are: (1) the evidence must be introduced for a proper purpose pursuant to Rule 404(b); (2) the evidence must be relevant to an issue in the case; (3) the evidence must satisfy the probative-prejudice balancing test of Rule 403; and (4) a limiting instruction must accompany the admission of the evidence. Id. at 691-92; see also United States v. Gilan, 967 F.2d 776, 780 (2d Cir. 1992). It is to be noted that evidence offered pursuant to Rule 404(b) will not pass the relevance prong of the Huddleston test unless a jury could reasonably conclude, by a preponderance of the evidence, that "'the act occurred and that the defendant was the actor.'" Gilan, 967 F.2d at 780 (citation omitted).
In the case at bar, it is not entirely clear from the papers what defenses Papajohn and Leonard will pursue at trial. Nor is the Court fully familiar with the circumstances of the prior acts which the government may seek to introduce at trial. Thus, defendants' in limine motions to preclude such evidence are deferred at this time. However, the Court notes that where a defendant's intent and knowledge are put in issue, evidence of involvement in narcotics activity other than that charged is often appropriate under Rule 404(b). See e.g. United States v. Ciro, 753 F.2d 248, 250 (2d Cir.), cert. denied, 471 U.S. 1018, 85 L. Ed. 2d 306, 105 S. Ct. 2025 (1985); United States v. Martino, 759 F.2d 998, 1005-05 (2d Cir. 1984). Furthermore, the Second Circuit has ruled that an assertion of "mere presence" at the scene of a charged narcotics offense is sufficient to place intent in issue, thereby enabling the government to prove intent through the admission of Rule 404(b) evidence. United States v. Bruno, 873 F.2d 555, 561-62 (2d Cir.), cert. denied, 493 U.S. 840, 107 L. Ed. 2d 86, 110 S. Ct. 125 (1989).
Although the Court, by this opinion, does not hold that the government's evidence of prior acts is necessarily admissible, the authority cited above is discussed nevertheless in light of the defenses which, based on defendants' papers, may be raised at trial. In any event, defendants' motions to preclude are deferred at this time; the Court will entertain oral argument on these issues prior to the commencement of trial.
VII. Enforcement of Leonard's Plea Agreement
Leonard moves to enforce a plea agreement which he signed in October of 1991. That agreement indicated, inter alia: that Leonard would plead guilty to the charge in the current indictment; that Leonard would cooperate fully with the United States Attorney's Office; that Leonard would not reveal his cooperation to any third party; and that Leonard must give "complete, truthful and accurate information and testimony. . . ." See Leonard Motion at exhibit A. Leonard essentially argues that, although initially his cooperation apparently was satisfactory, the government thereafter rejected Leonard's cooperation, purportedly because Leonard's subsequent statements exculpated Brown. Leonard contends that this was the basis for the government's warning that it does not intend to make a substantial assistance motion for Leonard based on section 5K1.1 of the United States Sentencing Guidelines. On the other hand, the government argues that Leonard breached the plea agreement by providing false information and revealing his cooperation to codefendants. It is to be noted that the charge contained in the indictment against Leonard is the same charge contained in the plea agreement at issue.
The issues raised by Leonard's motion are properly analyzed in the context of contract principles, and therefore specific performance may be an appropriate remedy for a prosecutor's breach of a plea agreement. United States v. Knights, 968 F.2d 1483, 1486 (2d Cir. 1992) (citing Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971)). Where a plea agreement includes a cooperation clause, and the government's performance "is conditioned on its satisfaction with the defendant's efforts . . . this condition is not met 'if the obligor is honestly, even though unreasonably, dissatisfied.'" Id. (quoting United States v. Rexach, 896 F.2d 710, 713 (2d Cir.), cert. denied, 498 U.S. 969, 111 S. Ct. 433, 112 L. Ed. 2d 417 (1990)) (further citation omitted).
In the case at bar, Leonard does not dispute the government's assertion that he breached the plea agreement by revealing his cooperation to his codefendants. Furthermore, the government has submitted Leonard's various post-arrest statements to show that he has changed his version of Brown's participation in the charged offense. See Govt's Memo. in Opp. at exhibits A, B and C. It must be emphasized that the prosecutor's evaluation of a defendant's cooperation -- and the decision whether to make a substantial assistance motion -- is subject to a limited review. Id. at 1487. Thus, in light of the circumstances, it does not appear that the government's decision not to make a motion of substantial assistance is based on any "impermissible consideration such as race or religion." Id.
In any event, the Court agrees with the government's characterization of Leonard's motion as premature. Because Leonard's plea agreement contained the same charge as the one count indictment, the only open question, should Leonard plead guilty pursuant to the agreement, is the government's obligation to make a motion of substantial assistance. Therefore, Leonard is not precluded from going to trial and, if convicted, moving for a hearing to address the government's alleged bad faith in failing to make such a motion prior to the imposition of sentence. See Knights, 968 F.2d at 1487. Should that come to pass, the Court will follow the procedure clearly outlined in Knights. See id. However, at this time, Leonard's motion to enforce his plea agreement is denied for the reasons stated above.
VIII. Dismissal or Discontinuance as Against Seyfert
Seyfert moves for a dismissal of the indictment against him, or in the alternative for an indefinite continuance, based on the fact that he suffers from Human Immunodeficiency Virus ("HIV"), a precursor to AIDS. Although Seyfert concedes that he is mentally competent to stand trial, it is asserted that his fragile physical health would be compromised by the rigors of a trial. The government argues that the Court's authority to grant the motion is in doubt, and that even assuming such authority, the trial should proceed. Seyfert, by way of reply, indicates that he is at greater risk since he is now classified as having full-blown AIDS.
Even assuming that this Court has the authority to grant an application such as Seyfert's the current motion is denied. Although the letter from Seyfert's physician states that an "extremely stressful situation such as a trial" would have an adverse impact on defendant's fragile heath, see Seyfert Motion at exhibit c, other factors militate strongly against dismissal or continuance. Applying the factors urged by Seyfert, it is not asserted that Seyfert will be hampered from preparing or presenting his defense at trial. See e.g., United States v. Landsman, 366 F. Supp. 1027, 1028 (S.D.N.Y. 1973). Furthermore, the fact that Seyfert's disease is both fatal and incurable would tend to support a speedier resolution, since any significant delay may amount to a dismissal. See United States v. Doran, 328 F. Supp. 1261, 1263 (S.D.N.Y. 1971). Finally, the seriousness of the crime charged against Seyfert is a factor which similarly militates against dismissal of the indictment. Id. Accordingly, the motion is denied.
To the extent that Seyfert argues that a term of incarceration would prevent him from receiving necessary medical treatment, the Court will certainly entertain any motion made in that connection if and when a sentence is imposed. However, for the reasons stated above, dismissal -- or a continuance -- is not warranted at this time.
For the reasons stated above, a decision on Brown's motion to suppress is deferred pending a hearing; the subpoena duces tecum issued by Brown in anticipation of such a hearing is quashed. Defendants' motions to dismiss the indictment for alleged grand jury improprieties are denied, as are the motions to dismiss for outrageous government conduct. Each of defendants' motions for severance are denied at this time. In addition, as indicated above the motions for bills of particulars and discovery are denied except to the extent that the government shall submit Agent Cipriano's personnel file to the Court for in camera inspection. Furthermore, the motions for early disclosure of Brady and Jencks Act materials are denied; defendants' motions to preclude the admission of evidence relating to prior acts are deferred. Finally, Leonard's motion to enforce a plea agreement and Seyfert's motion to dismiss or continue indefinitely are likewise denied.
Dated: Brooklyn, New York
December 22, 1992
DENIS R. HURLEY, U.S.D.J.