The opinion of the court was delivered by: DENIS R. HURLEY
In the above-referenced prosecution, Defendants are charged with conspiracy to distribute cocaine, distribution of cocaine, use of the telephone in connection with the distribution of cocaine, and certain weapons violations. Currently before the court are the following motions: (1) Defendant Fermin's motion for severance; (2) Defendant Giraldo's motion for severance; (3) Defendant Fermin's motion for a bill of particulars; (4) Defendant Giraldo's motion for pre-trial disclosure of Brady v. Maryland materials; (5) Defendant Fermin's motion for pre-trial disclosure of Rule 404(b) evidence; and (6) Defendant Fermin's motion to suppress certain physical evidence, or, in the alternative, for a suppression hearing. For the reasons set forth below, the motions are granted in part and denied in part.
Defendants Giraldo and Fermin move for the severance of their trials from the trials of certain of their co-defendants. First, Defendant Fermin contends that it was inappropriate to join the Counts in which he is charged with those Counts of the Indictment charging Defendant Giraldo with a separate conspiracy and distribution, and that he will suffer "spillover prejudice" from the joinder of his trial with that of Defendant Giraldo. Secondly, both Defendant Fermin and Defendant Giraldo contend that their trials should be severed from that of Defendant Giraldo-Gamez ("Gamez"), on the ground that the introduction of Gamez's post-arrest statements will violate their rights under the Confrontation Clause of the Sixth Amendment.
A. Joinder of the Conspiracy Involving Defendant Giraldo
In Counts One and Two of the Indictment, all four of the defendants in this prosecution are charged with conspiracy to distribute cocaine and distribution of cocaine. According to the Indictment, the conspiracy and distribution charged in these counts allegedly occurred between the months of February and March, 1994. In Counts Six and Seven of the Indictment, Defendant Giraldo is again charged with conspiracy to distribute cocaine, as well as the distribution of cocaine. The conspiracy and distribution charged in these counts allegedly occurred between 1990 and 1993. Defendant Fermin contends that because Counts Six and Seven allege a separate conspiracy involving only Defendant Giraldo, the two conspiracies were improperly joined in the Indictment (see Fermin Mem. at 8; Grossman Aff. at P 8), and that a joint trial regarding both conspiracies will result in "prejudicial spillover." (See Fermin Mem. at 8-9.)
With regard to Defendant Fermin's contention that the conspiracy involving Defendant Giraldo was improperly joined in the Indictment, the Court looks for guidance to Rule 8(b) of the Federal Rules of Criminal Procedure. Where, as here, there is both joinder of defendants and joinder of offenses, Rule 8(b) is invoked to test the validity of the joinder. United States v. Turoff, 853 F.2d 1037, 1043 (2d Cir. 1988). The Rule provides:
Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
In response to Defendant Fermin's motion, the Government contends that Counts Six and Seven are properly joined in the Indictment because these Counts "relate to Giraldo's prior sales of cocaine to [Cooperating Witness] Gibson, which were in the same series of . . . transactions' as the final transaction in which Fermin and the others participated." (Govt. Opp. Mem. at 5.) In further support of its position, the Government states that "the counts charged in the Indictment are properly triable together because there is a logical relationship between the defendants and offenses joined . . . . The fact that Counts Six and Seven charge a codefendant with a related cocaine conspiracy and distribution in which Fermin was not involved is of no consequence in the analysis." (Id.)
The Court is unpersuaded, however, by the Government's contention that the two conspiracies and distributions were "related," and were parts of the "same series of acts or transactions." In interpreting Rule 8(b), the Second Circuit has explained that the language "same series of acts or transactions" "means that joinder is proper where two or more persons' criminal acts are '"unified by some substantial identity of facts or participants," or "arise out of a common plan or scheme."'" United States v. Cervone, 907 F.2d 332, 341 (2d Cir. 1990) (quoting Attanasio, 870 F.2d at 815 (quoting United States v. Porter, 821 F.2d 968, 972 (4th Cir. 1987), cert. denied, 485 U.S. 934, 99 L. Ed. 2d 269, 108 S. Ct. 1108 (1988))). In this case, the Government has not alleged that the two conspiracies shared a common plan. Although the Government contends that all of the drug sales were made to a single cooperating witness, there is no suggestion that Defendants Fermin, Gamez, or Tellez "knew of or were involved in any overall scheme." United States v. Castiglia, No. CR-85-93E, 1986 WL 6873, at *11 (W.D.N.Y. June 18, 1986). Indeed, the Government does not contend that the conspiracies and distributions temporally overlapped: the conspiracy and distribution charged in Counts One and Two allegedly occurred during February and March, 1994, whereas the conspiracy and distribution charged in Counts Six and Seven allegedly occurred between 1990 and 1993. See United States v. Moon, 1993 U.S. Dist. LEXIS 9306, No. 88- CR-64, 1988 WL 88056, at *3 (N.D.N.Y. Aug. 23, 1988).
Nor are the conspiracies unified by a substantial identity of participants. Instead, the only individual that is charged in both of the conspiracies is Defendant Giraldo. The existence of a single, common participant, however, does not satisfy the requirements of Rule 8(b). In this regard, the Court finds instructive the case of United States v. Moon, 1993 U.S. Dist. LEXIS 9306, No. 88- CR-64, 1988 WL 88056 (N.D.N.Y. Aug. 23, 1988). In Moon, the court severed an Indictment that charged three separate conspiracies ...