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.
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.
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.
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 229 (1990). The indictment specifies sixteen racketeering acts.
The government is directed to provide defendants (1) the specific location "in the Chinatown section of New York" where the robbery or robberies alleged in paragraphs 12, 36, and 42 of the indictment is (are) said to have occurred; (2) the dates of the robberies of the Golden Pond Restaurant alleged in paragraphs 18 and 20; (3) the date of the robbery of the No. 1 Noodle Shop alleged in paragraphs 21 and 39; and (4) the name and address of the business on Allen Street, New York, New York, alleged in paragraphs 17 and 37 to have been robbed.
Upon receipt of this information, defendants will be sufficiently apprised of the charges against them to enable them to prepare a defense, to avoid surprise at trial, and to enable them to interpose a plea of double jeopardy if necessary. See Torres, 901 F.2d at 234; United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988); United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). Accordingly, their requests for bills of particulars are denied except as noted above.
e. Disclosure of evidence of crimes, wrongs, or acts that the government intends to introduce at trial pursuant to Fed. R. Evid. 404(b)
The government agrees to disclose the substance of material it intends to introduce under Fed. R. Evid. 404(b) before offering any such material, but resists any time requirement for this disclosure. It claims that the evidence it "wishes to offer may well change as the proof and possible defenses crystallize." (Gov't Mem at 29-30.)
Fed. R. Evid. 404(b) states that "upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial." The government is directed to provide, two weeks before trial, notice of the general nature of any Pule 404(b) evidence it intends to introduce. Evidence sought to be admitted under that rule for which at least two weeks pre-trial notice was not given shall be admitted only if good cause is shown to excuse the failure to provide such notice.
f. Co-conspirator statements
Francisco moves for an order "under F.R.Cr.P. 16(a)(1)(A), directing the government to disclose all statements of co-conspirators." His attorney contends that
with regard to statements of indicted co-conspirators, they should be supplied to determine if any Bruton [ Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968)] problems exist. As for statements of unindicted co-conspirators, such statements are necessary in order for me to properly prepare the defense of this case. All statements are in the Government's possession, and cannot be obtained from any other source.