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October 1, 1995


The opinion of the court was delivered by: MCAVOY


 Jury trial of defendant Cesar Fernandez commenced before this Court on August 29, 1995. On September 5, 1995, the jury returned a verdict of guilty on Count 1, charging a violation of 21 U.S.C. § 846, the sole count of the Indictment against defendant. The target crimes enumerated were distribution of cocaine and marijuana and possession with intent to distribute. See 21 U.S.C. § 841. Defendant now moves for a judgment of acquittal pursuant to Fed. R. Crim. P. 29(c) or, in the alternative, for a new trial pursuant to Fed. R. Crim. P. 33.


 The government alleges that shortly before the commencement of trial, counsel for the government attempted to locate Daniel Sudnick, who had cooperated with the Drug Enforcement Administration ("DEA") in its investigation of defendant. The government also alleges that counsel for defendant was advised of Mr. Sudnick's identity and provided an opportunity to read DEA reports relating to the investigation on the day the trial was to begin. On August 31, 1995, during the jury trial of defendant, Counsel for the government advised the Court that Mr. Sudnick was prepared to testify. Unfortunately, the government was unable to secure tape recordings that would include potential Jencks Act material pertaining to Mr. Sudnick and Rule 16 statements pertaining to defendant. See Jencks Act, 18 U.S.C. § 3500; Fed. R. Crim. P. 16.

 In order to enable the government to ensure that all these materials were furnished to defense counsel, counsel for the government formally requested a continuance from the Court. Anxious to learn the content of the tapes, the Court responded by granting the requested continuance over defendant's objection, until September 5, 1995, a period of two business days. On September 1, 1995, the government received the tape recordings made in the course of the DEA investigation. Apparently, those tapes included conversations to which defendant and Mr. Sudnick were participants. That same day, copies of the recordings were furnished to defense counsel.

 On September 5, 1995, the Court was advised of the content of the materials that had been furnished by the DEA. The Court then determined, once again over defendant's objection, that Mr. Sudnick would be permitted to testify about a statement made to him by defendant in April, 1993, that defendant "had to be in New York to take care of some customers." (Govt.'s Mem. Opp. Mot. at 5.) Mr. Sudnick also was permitted to testify that in April, 1993, pursuant to instructions from defendant, he paid a sum of money to defendant's brother for a prior marijuana shipment. Mr. Sudnick was not permitted to testify on direct examination about other dealings with defendant, and the DEA tapes were neither played nor mentioned in the jury's presence.

 After beginning their deliberations, the jury sent a note containing the following message to the Court:

We need to have you go over the charge regarding "Conspiracy" again. If we say we feel he was involved with the conspiracy but can not say he had intent to distribute -- does this mean a not guilty vote, or is all we are concerned with is finding him guilty or not guilty of conspiracy and we should not be concerned with the wording of the rest of the count?

 Defendant raises two bases for the relief he seeks. First, defendant argues that (a) the Court abused its discretion by granting the government a continuance in connection with the appearance of Daniel Sudnick, and (b) Mr. Sudnick's testimony amounted to inadmissible Rule 404(b) evidence. In regard to the continuance, defendant concedes that granting such a measure rests within the sound discretion of the Court. However, defendant argues that in this case the government offered no reasonable explanation for its failure to reveal the witness and his information well before the trial. Finally, where Mr. Sudnick's testimony is concerned, defendant contends that the evidence was unduly prejudicial because it was untimely and related to acts outside the charged conspiracy.

 Second, defendant argues that the Court erred in its response to the note from the jury concerning the requisite proof for a conviction on the conspiracy count of the Indictment. Defendant claims essentially that rather then reread the conspiracy charge, the Court should have instructed the jury that if it was not convinced of defendant's intent to distribute than a not guilty verdict was in order. Because the Court did not so respond, defendant contends that the jury was misled into believing that it could find defendant guilty of conspiracy even if it was not satisfied beyond a reasonable doubt of defendant's intent to join the conspiracy's objective of distribution.


 Although defendant has moved for alternative forms of relief, the Court initially will address whether defendant is entitled to any relief at all. As such, the Court will analyze each ...

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