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UNITED STATES v. WEI HENG LEE

September 13, 1994

UNITED STATES OF AMERICA,
v.
WEI HENG LEE, a/k/a "Chih Ching Chang", ANDREW WONG, DAVID LIEN, a/k/a "Lobster", EDWIN ARROYO, a/k/a "Lumpy", TONY JAIN, a/k/a "Ah Kee", JOHN DOE, a/k/a "Sunday", JOHN DOE, a/k/a "Anthony", NGUYEN PHONG, a/k/a "Turbo", NGUYEN CHAU a/k/a "Danny", EDMUND JEONG a/k/a "BeeBee", RUAN JIAN WEI, a/k/a "Ken", a/k/a "Dai Saw", Defendants.


STANTON


The opinion of the court was delivered by: LOUIS L. STANTON

Defendants move for discovery: Brady material, a list of government witnesses, bills of particulars, disclosure of evidence of crimes, wrongs, or acts that the government intends to introduce at trial pursuant to Fed. R. Evid. 404(b), disclosure of the identity of alleged co-conspirators, disclosure of co-conspirator statements, and grand jury minutes. In addition:

 Defendants David Lien, Edwin Arroyo, Nguyen Chau, and Jian Wei Ruan move to suppress statements.

 Defendants Nguyen Phong, Edmund Jeong, Lien, Chau, Ruan, and Arroyo seek a pre-trial hearing to explore the possibility that suggestive procedures contributed to four witnesses' identifications of them from photo arrays.

 Defendant Sunday Francisco, charged in the superseding indictment *fn1" as John Doe a/k/a "Sunday," and Arroyo move for severance under Fed. R. Crim. P. 14.

 Defendants Lien and Francisco move to strike allegedly prejudicial surplusage from the indictment.

 In addition to the motions listed above, Lien, Arroyo, and Francisco move as follows. Lien moves (1) for an in limine order requiring the government "to plead and prove all of the essential provisions" of any state law offense; (2) to dismiss Counts Three through Eight; (3) to dismiss counts One and Two because 18 U.S.C. § 1961(1)(A) "is unconstitutionally vague on its face and as applied"; (4) for an order prohibiting the government from offering evidence of any criminal conduct other than that charged in paragraphs 7-22, 25, 27, 29, 31, 33, and 35-50; (5) for an order "directing the government to preserve for trial the originals of all handwritten notes of law enforcement interview[s] with witnesses"; and (6) to preclude the introduction at trial of photographs of the deceased victims.

 Arroyo moves (1) to preclude the admission of evidence of prior convictions; (2) for discovery pertaining to a photo array in which his picture was displayed; and (3) for a pre-trial hearing concerning any hearsay declarations which the government may seek to introduce at trial.

 Francisco moves to dismiss Counts One, Two, Four through Eight, Ten, Eleven, and Sixteen through Eighteen of the indictment, "for failure to state an essential element of each crime" and "for impermissibly vague allegations." If Counts Sixteen and Seventeen are not dismissed, he contends that those counts are multiplicitous, and that the government should be compelled to elect between them.

 BACKGROUND

 The twenty-count indictment charges the defendants with violations of 18 U.S.C. §§ 924, 1951, 1958 & 1959, the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. ("RICO"), and the narcotics laws, as members of the White Tigers, a criminal organization which operated principally in the Chinatown section of New York, and in Queens. The indictment states that the defendants conspired to commit, and committed, various acts of murder, arson, robbery, and narcotics trafficking.

 DISCUSSION

 1. Motions to suppress statements

 Resolution of the issues raised by the motions of Lien, Chau, and Arroyo to suppress statements requires a hearing. Accordingly, decision on those motions is reserved until after the evidence is heard.

 The government states that it does not intend to introduce the statement by Ruan in its case in chief. (Gov't Mem. at 16.) Accordingly, Ruan's motion to suppress that statement is denied without prejudice.

 2. Challenges to identification procedures

 Defendants Lien, Phong, Chau, Jeong, Ruan, and Arroyo seek a pre-trial hearing to explore the possibility that suggestive procedures contributed to four witnesses identifications of defendants from photo arrays. None of the defendants contends that the arrays themselves were suggestive, nor does any provide a basis for belief that the procedures used in showing the photographic arrays were suggestive.

 The government "anticipates that it will call at trial four witnesses who have identified the defendants from photoarrays. Each of those witnesses had previously seen the defendant they identified on numerous occasions." (Gov't Mem. at 14 (citation omitted) (emphasis in original); Murphy Aff. PP 2-3.) The government claims that the witnesses' identifications are independently reliable because of the witnesses' opportunities to view the defendants prior to the photo arrays, and thus that the identifications would be admissible even if the identification procedures were unduly suggestive. See generally United States v. Thai, 29 F.3d 785, slip op. 5461, 5496-5507, 1994 WL 365425, at *18-23 (2d Cir. 1994); United States v. Concepcion, 983 F.2d 369, 377-78 (2d Cir. 1992). Finally, the government contends that a pretrial hearing would prematurely identify government witnesses, which would subject those witnesses and their families to "significant danger." (Gov't Mem. at 15-16.)

 Where, as here, defendants' motions were based entirely on speculation whether the procedures used in identifications from photo arrays might have been suggestive, and defendants did not challenge the arrays themselves, the court in United States v. Ruggiero, 824 F. Supp. 379, 395-96 (S.D.N.Y. 1993), rejected defendants' request for a pre-trial hearing to explore the possibility that the identification procedures were suggestive. Defendants' motions for such a pretrial hearing are likewise denied. Defendants' concerns may be adequately handled at trial. See id. at 396.

 3. Discovery

 a. Witness list

 Defendants' requests for a list of government witnesses are denied, as none has made the "specific showing of need" required to establish entitlement to such a list. United States v. Biaggi, 675 F. Supp. 790, 811 (S.D.N.Y. 1987); see United States v. Love, 859 F. Supp. 725, 1994 WL 421874, at *13 (S.D.N.Y. 1994); United States v. Yu, 1994 U.S. Dist. LEXIS 10894, No. 94 Cr. 375 (MBM), 1994 WL 414352, at *2 (S.D.N.Y. Aug. 8, 1994); United States v. Munoz, 736 F. Supp. 502, 504-05 (S.D.N.Y. 1990).

 b. Brady and impeachment material

 The government acknowledges its obligation under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), stating that it "is aware of no such material relating to defendants" and that it "will provide timely disclosure if any such material comes to light." (Gov't Mem. at 19.) In order to assure defendants adequate time to utilize it, the government is directed to provide any Brady and impeachment material at least two weeks before trial, unless the government makes a particularized showing justifying exceptions.

 c. Identity of co-conspirators

 Lien and Jeong request disclosure of the names of alleged co-conspirators. The government states that it "will provide a list of co-conspirators two weeks before trial". (Gov't Mem. at 21-22.) To the extent that defendants request earlier disclosure, those requests are denied.

 d. Bills of particulars

 Defendants Lien, Phong, Chau, Jeong, and Ruan move for bills of particulars. "'A bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused.'" United States v. Torres, 901 F.2d 205, 234 (2d Cir.) (quoting United States v. Feola, 651 F. Supp. 1068, 1132 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (2d Cir. 1989)), cert. denied sub nom. Cruz v. United States, 498 U.S. 906, 111 S. Ct. 273, 112 L. Ed. 2d ...


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