The opinion of the court was delivered by: MUNSON
Presently before the court, are defendants Miller, Lindsey, Watson, Felton, Cobb, Chaney, Howard and Belgrove's criminal omnibus motions, which number well over 150 individual motions.
In the second superseding indictment containing 27 counts, each of the defendants are charged with, inter alia, conspiracy to possess with intent to distribute cocaine, cocaine base, marijuana, and methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Oct. 19, 1995 Second Superseding Indictment, Document ("Doc.") 218. Several defendants are charged with engaging in a Continuing Criminal Enterprise, in violation of 21 U.S.C. § 848(a) and (c), and 18 U.S.C. § 2. Id. The court heard oral argument on March 1, 1995 at Syracuse, New York. The following constitutes the court's Memorandum-Decision and Order ("MDO") with regard to the instant motions.
Defendants Tommy Walker and Prentis Lindsey are named in the first count of the indictment which alleges that they operated a "Continuing Criminal Enterprise" in that they supervised the distribution of drugs in Utica, Rome and Auburn, New York, in violation of 21 U.S.C. § 848(a) and (c). The second count of the indictment charges defendants Lindsey and Walker along with all of their named codefendants with conspiring to distribute and possess with the intent to distribute controlled substances including cocaine, cocaine base, methamphetamine, and marijuana between 1991 and March 1995, in violation of 21 U.S.C. §§ 841 and 846.
Counts 3, 4, and 5 refer to firearm possession and sales by Tommy Walker in Utica, New York. Counts 7 through 12 involve undercover purchases of drugs from defendant Walker. Counts 13 and 14 pertains to drugs seized from a vehicle that was occupied by defendants David Kyles and Gregory Leon Whitehurst. Count 15 refers to drugs seized from a vehicle used by defendant Kevin Watson in Auburn, New York. Counts 16 through 19 pertain to drugs and weapons seized from a residence in Utica, New York, pursuant to a warrant to search the home of defendant Walker and defendant Tracey Blackwell. Defendant Gary Miller was also present when the warrant was executed. Counts 20 through 25 refer to weapons seized pursuant to a warrant to search the home of Cynthia Chaney and Raymond Cobb in Utica, New York. Count 26 charges defendants Walker and Lindsey with conspiracy to possess and deal in firearms. Lastly, count 27 is a criminal forfeiture brought pursuant to 21 U.S.C. § 853, seeking forfeiture of illegally obtained assets in the amount of approximately $ 185,000.
Defendants request a bill of particulars specifying items, too numerous to list here, pertaining to the crimes that defendants allegedly committed. Whether to grant a motion for a bill of particulars lies within the sound discretion of the court. United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990) (citing United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984)); Fed. R. Crim. P. 7(f). A bill of particulars serves to "apprise a defendant of the nature of the charges against him, so that he can adequately prepare a defense, avoid prejudicial surprise at trial, and Plead double jeopardy in that or any subsequent related action." United States v. Greater Syracuse Bd. of Realtors, Inc., 438 F. Supp. 376, 379 (N.D.N.Y. 1977) (Munson, J.); see also United States v. Feola, 651 F. Supp. 1068, 1132 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (2d Cir. 1989) (citations omitted). If a defendant is supplied with adequate information to prepare a defense, then the court may deny the motion. Id. A bill of particulars is not to be used as a general investigative tool for the defendant, or a device through which to learn the government's evidence or legal theories prior to trial. United States v. Biaggi, 675 F. Supp. 790, 809 (S.D.N.Y. 1987). Because redundant information is not necessary to prepare a defense, defendants are not entitled to discover through a bill of particulars information which is already available to them through other sources. Feola, 651 F. Supp. at 1132 (S.D.N.Y. 1987). In determining whether a bill of particulars is warranted, the court should consider "the complexity of the offense, the clarity of the indictment, and the degree of discovery otherwise available to the defendants." United States v. Diaz, 675 F. Supp. 1382, 1390 (E.D.N.Y. 1987) (quoting United States v. Shoher, 555 F. Supp. 346, 349 (S.D.N.Y. 1983)).
Furthermore, demands for particulars regarding the formation of a conspiracy have almost universally been denied. Matters such as the exact time and place of the overt acts and names of the persons present are not properly the subject of a bill of particulars. United States v. Wilson, 565 F. Supp. 1416, 1438 (S.D.N.Y. 1983) (quoting United States v. Kahaner, 203 F. Supp. 78, 84 (S.D.N.Y. 1962)). The details regarding how and when a conspiracy was formed, or when, each participant entered it, need not be revealed before trial. Feola, 651 F. Supp. at 1132. In fact, detailed evidence of a conspiracy is generally unavailable to defendants through a bill of particulars, and overt acts in furtherance of the conspiracy need not be disclosed. United States v. DeFabritus, 605 F. Supp. 1538, 1548 (S.D.N.Y. 1985). Defendants are not entitled to the locations, other than those listed in the indictment, at which they are alleged to have violated the statute provided that this information is made available to defendants in a manner sufficient to enable them to properly prepare for trial. Feola, 651 F. Supp. at 1133 (citing United States v. Massino, 605 F. Supp. 1565, 1582 (S.D.N.Y. 1985)). "Nor are defendants entitled to receive, by way of a bill of particulars, all documents which would in any way tend to verify the meetings or activities described in the overt acts; the exact time and place of each overt act in the indictment; the names and addresses of persons present during the meetings; nor all meetings at which the defendant was present." Feola, 651 F. Supp. at 1133 (citation omitted).
Items which have been held by other courts to be subject to disclosure through a bill of particulars include: "the names of all persons the Government will claim to have been co-conspirators, to the extent such persons are known to the Government; the locations of acts set forth in the counts, to the extent performed by principals; and the place where the principal offense charged allegedly occurred." Feola, 651 F. Supp. at 1133 (citations omitted). However, even these items may be exempt from disclosure if the information would reveal the government's theory underlying those counts. Id.
In the case at bar, the court reviewed each specific request by the defendants and finds, in view of the principles listed above, that the government has already provided each defendant with information specific enough to prepare a defense with reasonably diligent effort, avoid unfair surprise, and prepare a double jeopardy pleading, if applicable. The indictment is detailed, and significant discovery materials already have been provided to the parties. It is worth noting that the indictment contains an introductory section setting forth a somewhat detailed description of the structure of the alleged criminal organization and the roles each defendant held in that organization. Oct. 19, 1995 Second Superseding Indictment ("Indictment"), Doc. 94, at 1-8. The indictment also advises each defendant, with three exceptions discussed below, as to the time and place of alleged crimes and the names of codefendants. Each count in the indictment also contains the date, location and substance of the conduct that is alleged regarding the defendants named in those counts. It is especially noteworthy that the government has already provided defendants with extensive documents, and has provided them with the opportunity to inspect physical evidence, including photographs, audiotape recordings, laboratory reports, investigative reports and witness statements obtained from various law enforcement agencies.
Although the court finds that the government has disclosed substantial materials to defendants, certain additional information requested by three of the defendants must be provided by the government. In particular, the court notes that defendants Howard, Belgrove and Felton are named only in count 2 of the indictment, charging them generally with conspiracy to possess and distribute certain narcotics. Count 2 is broadly drafted in that it alleges the defendants committed illegal acts at some point(s) during a four year period. The only other place at which defendants Howard, Belgrove and Felton are mentioned in the indictment is in the "introductory" section, which is incorporated by reference into Count 2. In the introductory section, defendant Howard is alleged to have been "a member of the conspiracy who stored drugs for Tommy Walker and others." Indictment, Doc. 94, at 7. Defendant Belgrove is alleged to have been "a member of the conspiracy and transported drugs from New York City to Central New York." Id. With regard to defendant Felton, the indictment alleges that he "was a member of the conspiracy and acted, at time, as a foremen [sic] and drug seller." Id. In contrast, the remainder of the indictment, Counts 3 through 27, names the other defendants with each count particularizing the nature of the conduct and the dates of offenses.
In order to allow defendants adequate information to prepare a defense, the government must provide a single bill of particulars setting forth information to the extent discussed below. First, with regard to defendant Howard, the government must specify to the extent presently known, what types of narcotics were allegedly stored for defendant Walker and the dates those narcotics were stored. Second, with regard to defendant Belgrove, the government must specify to the extent presently known, what types of narcotics were allegedly transported by the defendant, and the dates those narcotics were transported. Third, with regard to defendant Felton, the government must specify to the extent presently known, the dates that he allegedly acted as a narcotics foreman and seller, and the types of narcotics that were involved in those transactions.
Lastly, to the limited extent discussed below regarding defendant Miller's request to consolidate counts 16 and 18 as multiplicitous, the government must specify to the extent presently known information sufficient to enable those defendants to distinguish the offenses charged under those counts.
II. Identity of Confidential Informants
Defendants call upon the government to provide identity and background information of any informants that the government intends to call as a witness. To encourage knowledgeable persons to communicate information about wrongdoing to the government, the law recognizes a privilege to withhold the identities and background of informants who are promised confidentiality. Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 627, 1 L. Ed. 2d 639 (1957). However, the privilege must give way if the disclosure of an informant's identity, or the contents of his communication is relevant and helpful to the defense of an accused, or is essential to a fair determination of a case. In deciding a motion to reveal an informant's identity, the court must "balance the public interest in protecting the flow of information against the individual's right to prepare his defense." Roviaro, 353 U.S. at 60-61, 77 S. Ct. at 627-28.
Within the Second Circuit, a defendant is generally able to establish a right to disclosure "where the informant is a key witness or participant in the crime charged, someone whose testimony would be significant in determining guilt or innocence." United States v. Saa, 859 F.2d 1067, 1073-75 (2d Cir. 1988), cert. denied, 489 U.S. 1089, 103 L. Ed. 2d 858, 109 S. Ct. 1555 (1989). Nonetheless, even when the defendant can make such a showing, courts in this Circuit have held that the defendant is not entitled to pretrial identification of an informant where (1) the Government planned to have the informant testify at trial, thereby requiring the government to turn over Jencks material, and (2) defendant did not show a particularized need for pretrial disclosure. United States v. Hana, No. 94 CR. 116, 1994 U.S. Dist. LEXIS 9008, *12, 1994 WL 323642, at *4 (S.D.N.Y. July 5, 1994); United States v. Gonzalez, No. 93 CR. 960, 1994 U.S. Dist. LEXIS 17446, *12, 1994 WL 689065, at *3 (S.D.N.Y. Dec. 8, 1994). Lastly, a defendant may not be entitled to disclosure even though he had shown that the informant was a participant in and a witness to the crime charged. United States v. Jimenez, 789 F.2d 167 (2d Cir. 1986).
In this case, the government has already identified three confidential informants, two of whom are incarcerated in federal prisons. With regard to those informants, the court notes that the government has been able to reveal their identity because of unusual circumstances that reasonably insure their safety until the time of trial. The government avers that the remaining informants are not so situated, and that they remain subject to the risk of threat and injury. Government's Response to Omnibus Motions ("Govt.'s Response"), Doc. 218, at 26. The court is unable to conclude after a careful review of each of the defendants' arguments, that the disclosure of the remaining confidential informants' identities is justified in this case. None of the defendants has identified a sufficiently particularized need that justifies access to the identity of the confidential informants prior to their testimony. Defendants' motions for disclosure of the identity of confidential informants that the government intends to call as witnesses at trial are therefore denied.
III. Disclosure of Exculpatory Evidence
Defendants make a request to compel immediate disclosure of all exculpatory evidence and impeachment material. Disclosure of evidence tending to exonerate a defendant is, of course, mandated by Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). However, it is well-settled in this circuit that Brady establishes no general right of pretrial discovery, nor does it give rise to any pretrial remedies. In short, Brady does not create a rule of discovery. See United States v. Marquez, No. 91 CR. 451, 1992 U.S. Dist. LEXIS 5247, 1992 WL 88139 (S.D.N.Y. 1992); 2 Charles A. Wright, Federal Practice and Procedure, § 254; United States Higgs, 713 F.2d 39, 42 (3d Cir.), cert. denied, 464 U.S. 1048, 104 S. Ct. 725, 79 L. Ed. 2d 185 (1983) ("The requirements of Brady are not based on any general constitutional right to discovery in criminal cases, but rather on a defendant's due process right to a fair trial."). With regard to the timing of disclosure, the Second Circuit has held that "neither Brady nor any other case requires that disclosures under Brady must be made before trial." United States ex rel. Cornelius Lucas v. Regan, 503 F.2d 1, 3, n.1 (2d Cir. 1974), cert. denied 420 U.S. 939, 43 L. Ed. 2d 415, 95 S. Ct. 1149 (1975) (emphasis added to original); see also Higgs 713 F.2d at 44 ("No denial of due process occurs if Brady material is disclosed to [defendants] in time for its effective use at trial."). Furthermore, it has been determined that due process requires only that the defendant receive such information before it is too late for him to make beneficial use of it at trial; i.e., prior to cross examination. Regan, 503 F.2d at 3.
Likewise, the disclosure of impeachment-type materials relating to the government's witnesses is mandated by Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972), and is properly disclosed when the witness is called to testify at trial. United States v. Marquez, No. 91 CR. 451, 1992 U.S. Dist. LEXIS 5247, at *24, 1992 WL 88139, at *8 (S.D.N.Y. 1992). Specifically, this rule encompasses the information that defendants seek regarding any consideration that the government may offer to a witness in exchange for his testimony or any matter which would cause the witness to color his testimony in favor of the government. Id.
The government indicates that it has provided and will continue to provide any exculpatory evidence as it becomes known, and that it will produce impeachment material at the time of trial. This anticipated schedule for production of discovery is appropriate. James v. Kelly, 648 F. Supp. 397, 403-04 (E.D.N.Y. 1986); Feola, 651 F. Supp. at 1135. Accordingly, because the government is not required to do any more at this time, the court denies defendants' requests for disclosure of exculpatory evidence and impeachment material.
IV. Discovery of Identification Evidence
The government also delivered to defense counsel government investigative reports setting forth all identification procedures used in this case. The court agrees with the government that the additional information sought by the defendants is not necessary to challenge the propriety of the lineup photographs. Because the government states that the defendants have access to all relevant photographic lineups and reports, and that the government will provide defendants with whatever other evidence in its possession with regard to the photo arrays, defendants' motions for additional identification evidence are denied without prejudice. Defendants may renew their motions if it appears that the government has not fully complied with its offer to disclose the material.
V. Discovery of Co-conspirator Statements
Several defendants assert that they are entitled to disclosure of the statements of their alleged co-conspirators pursuant to Rule 16(a)(1)(A) of the Federal Rules of Criminal Procedure. Rule 16 explicitly provides that statements "by the defendant" are discoverable. The general rule in this Circuit is that statements made by co-conspirators are not discoverable under Rule 16(a). United States v. Percevault, 490 F.2d 126, 130-31 (2d Cir. 1974). Rule 16 permits discovery only of a defendant's statements. However, this court previously held that on a broad reading of Rule 16, it is possible to regard the statements of co-conspirators made during the course of and in furtherance of a conspiracy as the statements of the defendant, and as such those statements are discoverable. United States v. Konefal, 566 F. Supp. 698, 706-07 (N.D.N.Y. 1983) (Munson, C.J.).
This court acknowledged in Konefal however, that discovery of co-conspirator statements may be permitted on a Rule 16 motion only if the government does not intend to call the co-conspirators as witnesses at trial. If the government intends to call such co-conspirators as witnesses, the Jencks Act expressly makes statements of government witnesses, including co-conspirators, not discoverable until such time as the witness testifies.
In the case at bar, defendants request statements of their alleged co-conspirators, all of whom apparently are named as defendants in the indictments. The government has said that they intend to call some of these defendants as witnesses. Thus, as the situation presently stands, to the extent that the government will not be calling certain defendants as witnesses at trial, strict adherence to Percevault with regard to those defendants is not required. Following the rule established by this court in Konefal, the court finds that fairness and the interests of justice require disclosure of statements of co-conspirators who are named as defendants and who will not be called as witnesses by the government. This approach adequately addresses the government's concern for the safety of the co-defendants who will testify at trial.
In reaching this conclusion, the court declines the invitation to follow its previous decision in United States v. Greater Syracuse Bd. of Realtors, 438 F. Supp. 376 (N.D.N.Y. 1977). In Konefal, this court expressly declined to adhere to its prior decision in Greater Syracuse to the extent that decision is read as an absolute ban on pretrial disclosure of co-conspirator statements. Konefal, 566 F. Supp. at 706. In dicta, however, this court left open the possibility of following a course of non-disclosure if, in circumstances such as those presented in Greater Syracuse, there are numerous defendants and pretrial disclosure would unnecessarily reveal business secrets. Konefal, 566 F. Supp. at 706-07. Aside from the large number of defendants in the case at bar, the court is not presented with circumstances in which their is a risk of harm to third parties from the disclosure of business secrets. Numerous courts have adopted the approach taken by this court in Konefal. See Konefal, 566 F. Supp. at 706, and cases cited therein; United States v. Jackson, 757 F.2d 1486 (4th Cir.), cert. denied, 474 U.S. 994, 106 S. Ct. 407, 88 L. Ed. 2d 358 (1985) ("defendant entitled to disclosure of statements of co-conspirators if the co-conspirator is not a prospective government witness and disclosure does not unnecessarily reveal sensitive information"); United States v. Davidson, No. 92- CR-35, 1992 U.S. Dist. LEXIS 19434, at *29, and cases cited therein. The facts in the case at bar do not justify departure from the rule employed by this court in Konefal requiring the disclosure of co-conspirator statements. The court therefore declines to apply an absolute ban on disclosure of co-conspirator statements.
Defendants' motions for discovery of co-conspirators' statements are therefore granted, and the government must disclose to each defendant all the statements in its possession made during the course and in the furtherance of the conspiracy by those defendants the government does not intend to call as witnesses at trial.
VI. Extra Peremptory Challenges
Defendants next seek additional peremptory challenges and the opportunity to exercise such challenges separately. For felonies such as those with which defendants are charged, Rule 24(b) provides for 6 peremptory challenges for the government and 10 for the defendants jointly. Of course, the court has broad discretion to change this allotment and provide additional peremptory challenges. Likewise, the court may determine whether peremptory challenges should be exercised jointly or separately. United States v. Aloi, 511 F.2d 585, 598 (2d Cir.), cert. denied, 423 U.S. 1015, 46 L. Ed. 2d 386, 96 S. Ct. 447 (1975). Moreover, the award of additional peremptory challenges may be conditioned on the defendants' stipulation that the government also receive additional challenges.
The court is inclined to increase the number of peremptory challenges for the defendants upon their stipulation that the government receive a proportional increase. Final decision on this issue is reserved, however, as well as the issue of whether the defendants should be allowed to exercise these challenges separately, until such time as the parties file their final pretrial submissions. At that time, defendants should notify the court whether they would prefer to exercise these challenges individually.
VII. Early Disclosure of Jencks Act Material
Defendants request an order directing the government to produce witness statements and reports in a timely fashion pursuant to the Jencks Act, 18 U.S.C. § 3500. However, the Jencks Act provides that no statements by a government witness shall be the subject of discovery or inspection until such witness has testified on direct examination in the trial. This court cannot order production of witness statements before they have testified. United States v. Percevault, 490 F.2d 126, 129 (2d Cir. 1974).
However, the government agrees to provide Jencks material to the defendants one week prior to the trial. Because the government has already agreed to provide the information sought by the defendants, their motions are denied.
VIII. Production of Witness List
Defendants request disclosure of a witness list in advance of trial. While the general discretion of district courts to compel the government to identify its witnesses is widely acknowledged, in this Circuit the government may be required to produce a witness list only if defendant makes a "particularized showing of need." United States v. Bejasa, 904 F.2d 137, 139 (2d Cir. 1990). As justification for production of a witness list, defendants merely cite the number of defendants, the length of the conspiracy, and the need to prepare an adequate defense as justifications for their requests. None of the defendant makes a particularized showing sufficient to require the production of a witness list prior to trial. Therefore, the defendants' requests for production of a witness list in advance of trial are hereby denied.
IX. Preservation of Government Agents' Notes
Defendants next request the court to direct the preservation of all notes of law enforcement officials relating to this case. Some of the defendants ask this court to "place the government on notice" to retain any existing rough notes.
The government must permit a defendant to inspect and copy the substance of any oral statement that the government intends to offer in evidence at the trial made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be a government agent. Fed. R. Civ. Proc. 16(a)(1)(A). In order to fully comply with Rule 16, the government only needs to provide the defendant with the typewritten memoranda of interviews prepared from the agent's handwritten notes. United States v. Konefal, 566 F. Supp. 698, 708 (N.D.N.Y. 1983).
There are, however, certain circumstances under which a defendant is entitled to receive copies of a government agent's rough notes. The Jencks Act provides that a defendant in a federal criminal trial, after a government witness has testified on direct examination, is entitled to receive for purposes of cross-examination any written statement of the witness in the government's possession, including handwritten notes, which relates to the subject matter as to which the witness testified. 18 U.S.C. § 3500(b); United States v. Koskerides, 877 F.2d 1129, 1133 (2d Cir. 1989). Therefore, defendants are entitled to examine any notes by a government witness after that witness has testified at trial.
The government cites the Koskerides decision for the proposition that "rough notes, even if retained, are not discoverable, even under the Jencks Act." Govt.'s Response, Doc. 218, at 21. That is a misstatement of the holding in Koskerides. In that case, the defense was provided with typewritten memoranda of interviews prepared from handwritten notes. The handwritten notes were preserved by the agent and submitted to the district court for in camera inspection. The court compared the notes with the memoranda of interview and denied disclosure of the notes, finding that everything in the notes was contained in the memoranda given to the defendant. The trial court also found that the notes did not pertain to anything discussed by the agent in his testimony on direct examination. Based on those circumstances, the Second Circuit held that the district court's refusal to order disclosure of the handwritten notes did not violate the Jencks Act. Koskerides, 877 F.2d at 1133. The Court's holding in Koskerides does not support the proposition advanced by the government in the case at bar, that a government agent's notes are not discoverable under the Jencks Act, even if retained.
Lastly, the court notes that the Second Circuit has held that the Jencks Act imposes no duty on the part of government agents to retain rough notes when their contents are incorporated into official records, provided however that the notes had been destroyed in good faith. United States v. Anzalone 555 F.2d 317, 321 (2d Cir. 1977); United States v. Sanchez, 635 F.2d 47, 66 n.20 (2d Cir. 1980). In the case at bar, the government is under an obligation to advise the appropriate law enforcement agents that any rough notes pertaining to the instant case must be retained for possible disclosure at trial pursuant to the government's obligation under the Jencks Act.
In summary, defendants' motions are a reasonable request for the preservation of material potentially discoverable under the Jencks Act, and therefore their motions are granted. The government must advise the appropriate law enforcement agents to retain rough notes, consistent with the court's discussion above.