firearm, the Court finds that the Government has provided the requested information in its Complaint against Defendant Fermin. (Compl. at P 15.) This portion of Defendant's request for particulars is, therefore, denied. See United States v. Jimenez, 824 F. Supp. 351 (S.D.N.Y. 1993) (bill of particulars denied where the complaint, indictment, and pretrial discovery disclosures adequately informed the defendant of the charges against him). With respect to Defendant's Request number eight, which seeks documents regarding the ownership of the vehicle seized at the time of Defendant Fermin's arrest, the Government represents that in April, 1994, it offered defense counsel the opportunity to examine any physical evidence discoverable under Rule 16, including any information with respect to the vehicle. The Government also represents that this opportunity remains available to Defendant Fermin. Accordingly, Defendant's request for particulars in this regard is also denied. See United States v. Leonard, 817 F. Supp. 286, 303 (E.D.N.Y. 1992).
III. Brady v. Maryland and Rule 404(b) Materials
Defendant Giraldo requests certain exculpatory materials pursuant to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and its progeny. See, e.g., Giglio v. United States, 405 U.S. 150, 154, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972); Ostrer v. United States, 577 F.2d 782 (2d Cir. 1978) cert. denied, 439 U.S. 1115, 59 L. Ed. 2d 73, 99 S. Ct. 1018 (1979). According to this case law, a criminal defendant is entitled to exculpatory or mitigating evidence in the Government's possession, including evidence pertinent to the credibility or reliability of a material witness. United States v. Shoher, 555 F. Supp. 346, 352 (S.D.N.Y. 1983).
In response to this request, the Government represents that it is unaware of any such information with regard to Defendant Giraldo. Based upon this representation, Defendant Giraldo's request is denied; however, the Court reminds the Government of its continuing obligation in this regard. See United States v. Feola, 651 F. Supp. 1068, 1135-36 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 834 (1989).
Defendant Fermin also moves for the pre-trial disclosure of any Rule 404(b) evidence that the Government intends to introduce at trial.
The Government represents that it does not presently intend to offer any 404(b) evidence at trial, and that, should its intention change, it will promptly notify the Court and opposing counsel, and will seek a pre-trial ruling regarding admissibility. Based upon these representations, Defendant Fermin's motion is denied at this time.
IV. Motion to Suppress
Defendant Fermin moves to suppress a firearm that was found in the vehicle that he was driving, or, in the alternative, for a hearing to determine whether there was probable cause to Seize the firearm. In response, the Government first contends that Defendant Fermin "has no standing to bring the motion." (Govt. Opp. Mem. at 9.) Further, if Fermin does have standing, the Government contends that the police officers and federal agents had probable cause to search the vehicle, or in the alternative, that the firearm was found in the course of a lawful inventory search. (Id.)
As to the issue of standing, the Court notes that the papers submitted by both of the parties provide scant detail regarding the events surrounding the seizure of the firearm. Defendant Fermin contends that, shortly before his arrest, he had been operating a vehicle that he had borrowed.
Following his arrest, a search of this vehicle revealed a handgun that had been stowed in a compartment adjacent to the automatic transmission controls and between the driver and front passenger seats. Thus, there is evidence before the Court that suggests that Defendant Fermin was lawfully in the vehicle and that the gun was located in a readily accessible area of the passenger compartment. This evidence, although inconclusive, entitles Defendant to a hearing on the issue of "standing," or, more appropriately termed, on the issue of "the extent of . . . [his] rights under the Fourth Amendment . . . ." United States v. Pena, 961 F.2d 333, 336-38 (2d Cir. 1992).
As to the issue of the propriety of the warrantless search of the vehicle, the Court has likewise been provided with scant factual detail. It appears that Defendant Fermin was arrested outside of the vehicle, but it is unclear whether the search of the vehicle was conducted "incident to [his] arrest"
(Compl. at P 15), or was conducted after the vehicle had been impounded. (See Govt. Opp. Mem. at 11-12.) Because it appears that "there are contested issues of fact going to the validity of the search," the Court will also conduct a hearing in this regard. Pena, 961 F.2d at 339.
The Court will thus conduct a hearing on Defendant Fermin's motion to suppress immediately prior to trial, on August 15, 1994, at 9:30 AM. The first issue to be determined at the hearing will be whether Defendant Fermin had a protectible Fourth Amendment interest in the compartment from which the firearm was seized, an issue on which he will bear the burden. If Defendant sustains that burden, the Court will then address the issue of whether the Government was justified in conducting the warrantless search of the vehicle. In that regard, the Court will require a proffer from the parties as to the proof that will be submitted at the hearing.
For the reasons set forth above, the Court grants Defendant Fermin's motion to sever the charges of conspiracy and distribution set forth in Counts Six and Seven of the Indictment, and grants his motion for a suppression hearing. All other motions of Defendant Fermin and Defendant Giraldo are denied. The suppression hearing will be held on August 15, 1994, at 9:30 AM, and the trial of Counts One through Five of the Indictment will begin on August 16, 1994.
Dated: Hauppauge, New York
July 28, 1994
Denis R. Hurley
United States District Judge