wish to submit them to the court. Therefore, the court denies defendants' motions to suppress the audiotape recordings, without prejudice.
7. Motion to Strike Alias
Ruben A. Todd-Murgas moves to strike the alias contained in the indictment. Although the indictment does not contain an alias for Ruben Todd-Murgas, a defendant may legitimately complain that he may be prejudiced by the aliases of his codefendants if the indictment containing such aliases is presented to the jury. See United States v. Hargrett, 1996 U.S. Dist. LEXIS 14273, 1996 WL 551090, at *10 (citing United States v. Monroe, 164 F.2d 471, 476 (2d Cir. 1947)).
Generally, however, aliases are stricken only if they constitute prejudicial surplusage and will not assist the trier of fact in identifying a particular defendant or defendants. See, e.g., United States v. Miller, 381 F.2d 529, 536 (2d Cir. 1967) (use of aliases permitted where relevant to anticipated proof at trial); see United States v. Clark, 541 F.2d 1016, 1018 (4th Cir. 1976) (inclusion of alias permissible where it is necessary to identify the defendant in connection with the acts charged in the indictment). Here, the aliases contained in the indictment may well assist the trier of fact in identifying particular defendants, especially because many of the tape recordings of phone conversations refer to the defendants by such aliases. See United States v. Ruggiero, 824 F. Supp. 379, 397-398 (S.D.N.Y. 1993), aff'd sub nom. United States v. Aulicino 44 F.3d 1102 (2d Cir. 1995). Defendant's argument that the aliases contained in the indictment serve no useful purpose is unavailing. Accordingly, the defendant's motion to strike the aliases from the indictment is denied.
8. Motion for Additional Peremptory Challenges
Defendants Ruben A. Todd-Murgas, Vincente Rogers, and Tricia Irving move for additional peremptory challenges for voir dire as well as the opportunity to exercise such challenges separately from codefendants. As is its usual practice, the court will reserve on this decision until the time of the conference preceding jury selection. See United States v. Walker, 922 F. Supp. at 743.
9. Motion for Severance
Defendants Cesar Todd-Murgas, Ruben A. Todd-Murgas, Jayson Jones, Vincente Rogers, and Tricia Irving move to sever their trials from their codefendants pursuant to Federal Rule of Criminal Procedure 14 on a variety of grounds. The court will address each seriatim.
Rule 8(b) permits joinder of multiple defendants when they have participated in the same act or transaction or in a series of related acts or transactions which are part of a common scheme or plan. Fed. R. Crim. P. 8(b); United States v. Bernstein, 533 F.2d 775, 789 (2d Cir. 1976). When defendants' activities are part of a series of acts or transactions which make up the underlying offenses, it is not necessary that each defendant be charged in each count. See United States v. Cardascia, 951 F.2d 474, 482-83 (2d Cir. 1991). The government is not required to prove that each defendant participated in every act or transaction in the series of events comprising the scheme. See id.
Courts in this circuit have stressed "the policy favoring joinder of trials, especially where the underlying crime involves a common plan or scheme and defendants have been jointly indicted." Id. at 482; see United States v. Matos-Peralta, 691 F. Supp. 780, 789 (S.D.N.Y. 1988). The "slight prejudice" resulting from a joint trial is deemed outweighed by the judicial economies resulting from avoidance of duplicative trials as well as the avoidance of inconsistent verdicts. See Cardascia, 951 F.2d at 482-483 (citing Richardson v. Marsh, 481 U.S. 200, 209-10, 107 S. Ct. 1702, 1708-09, 95 L. Ed. 2d 176 (1987)). Thus, a defendant seeking severance bears a heavy burden. See Matos-Peralta, 691 F. Supp. at 789. To meet that burden, a defendant must show that he will be so severely prejudiced by a joint trial that he will be denied his right to a fair trial if tried in the same proceeding as his codefendants. Cf. United States v. Minicone, 960 F.2d 1099, 1110 (2d Cir. 1992). This burden is not met by merely showing a defendant's chances of acquittal would be improved by a separate trial. See United States v. Scarpa, 913 F.2d 993, 1015 (2d Cir. 1990).
Defendant Cesar Todd-Murgas argues that he is only named in two counts of the indictment and would therefore be prejudiced if tried with his codefendants. It is well established, however, that a separate trial is not required simply because one defendant's role in a conspiracy is allegedly less significant or peripheral compared to other conspirators. United States v. Torres, 901 F.2d 205, 230 (2d Cir. 1990).
Defendant Jayson Jones argues that because of his mental deficiencies, his culpability may not be given the thorough attention necessary to provide him with a fair trial. See Jones' Mem. at 16. The court fails to see how a defense of diminished capacity would entitle this defendant to any special consideration regarding severance. Defendant Jones will be given ample opportunity to present his defense to the jury. The defense presented on behalf of Jones would be no different if Jones was tried collectively with codefendants or if he was tried individually. Therefore, this argument is insufficient to justify a severance. See generally Scarpa, 913 F.2d at 993.
Defendant Cesar Todd-Murgas, Jayson Jones, and Vincente Rogers complain about the likelihood that some of the evidence offered against codefendants may be inadmissible against them individually and this would be unduly prejudicial. The mere circumstance that some evidence is admissible against one defendant but not others in a joint trial does not usually constitute prejudice warranting severance. United States v. Losada, 674 F.2d 167, 171 (2d Cir. 1982); United States v. Ramirez, 602 F. Supp. 783, 787 (S.D.N.Y. 1985). In any event, where evidence is relevant to the guilt of a single codefendant, a limiting instruction is sufficient to cure any prejudice. See United States v. Alvarado, 882 F.2d 645, 655-56 (2d Cir. 1989).
Accordingly, the court denies defendants' motions to sever.
10. Notice of Insanity Defense
Defendants Cesar Todd-Murgas, Ruben Todd-Murgas, and Jayson Jones move, pursuant to Fed.R.Crim.P. 12.2(a) and (b), for an order placing the government on notice that they may offer the defense of insanity at trial, or offer expert testimony relating to a mental disease or defect for the purpose of disproving guilt. This notice requires no action or decision of the court.
B. DISCOVERY MOTIONS
1. Rule 16 Discovery
Defendants Luis Cordoba-Murgas, Cesar Todd-Murgas, Ruben Todd-Murgas, Jayson Jones and Vincente Rogers seek an order compelling discovery pursuant to Rule 16 of the Federal Rules of Criminal Procedure. In response, the government submits that it has fulfilled its discovery obligations under this rule. This assurance is sufficient in the usual case, and thus the court denies these motions without prejudice to renew in the event it appears to defendants that the government fails to comply with Rule 16 in some respect. See Walker, 922 F. Supp. at 746.
2. Witness Lists
Defendants Ruben A. Todd-Murgas, Jayson Jones, Vincente Rogers, and Tricia Irving move for disclosure of the government's witness list prior to trial. Defendants must make a particularized showing of need and materiality before a court can order such disclosure. See United States v. Bejasa, 904 F.2d 137, 139-140 (2d Cir. 1990); United States v. Cannone, 528 F.2d 296, 301 (2d Cir. 1975). Because none of the defendants have made such a showing, it would be beyond the court's discretion to order such a disclosure. The government has indicated, however, that it intends to provide the names of prospective witnesses on the date jury selection commences. Gov't Response at 19. Accordingly, the court denies defendants' motions.
3. Disclosure of Informant Identities
Defendants Ruben Todd-Murgas, Jayson Jones, Vincente Rogers, and Tricia Irving move for compulsory disclosure of information concerning the identity and background of confidential informants. 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 yield if the disclosure of an informant's identity, or the content of his or her communication, is relevant and helpful to the defense of an accused or is essential to a fair determination of a case. See United States v. Russotti, 746 F.2d 945, 950 (2d Cir. 1984). In deciding a motion to reveal an informant's identity, the court must balance the public's interest in protecting the flow of information regarding wrongdoing against a defendant's right to prepare his defense. See Roviaro, 353 U.S. at 60-61, 77 S. Ct. at 628.
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 (2d Cir. 1988) (citations omitted). Thus, both participation by the informant in the offense and relevance of the information sought must be shown by a defendant seeking disclosure. See id. at 1073; cf. United States v. Jimenez, 789 F.2d 167, 170 (2d Cir. 1986) (government not required to disclose informant, who was both participant and witness, absent showing that the testimony would have been of value to defendant's case).
The government intends to call most of the informants to testify at trial. See Gov't Response at 15. With respect to these informants, several circuits have adopted the rule that pretrial disclosure of informants' identities is not necessary where they will testify at trial. E.g., United States v. Perkins, 994 F.2d 1184, 1190 (6th Cir. 1993) . That rule is gaining ground in this circuit. See DiBlasio v. Keane, 932 F.2d 1038, 1043 (2d Cir. 1991); United States v. Leonard, 817 F. Supp. 286, 302 (E.D.N.Y. 1992). This court agrees with these authorities, that when no more particularized need for disclosure is averred by defendants, the testimony of a confidential informant at trial obviates the need for pretrial disclosure. The Jencks Act, 18 U.S.C. § 3500, prescribes the time the government must provide relevant information about testifying witnesses. Under these circumstances, the Jencks Act provides sufficient protection for defendants. See United States v. Valerio, 737 F. Supp. 844, 846 (S.D.N.Y. 1990).
With respect to any informants that will not testify at trial, the court must decide whether the identity of non-testifying confidential informants should be revealed. The court has reviewed the requests of the defendants and concludes that no defendant has demonstrated that the identities and background of confidential informants are relevant and helpful to their defense. Defendant Irving makes the only specific request asserting that "informant testimony, if there is any, would provide a critical link between charge and conviction in Irving's case" and would be critical "if the government intends to link Irving to this conspiracy." Defendant Irving's Memorandum of Law, dated August 29, 1996, Doc. 104, at 2. It is clear from this assertion that Irving only seeks disclosure of informants who will testify. Therefore, because defendants are not entitled to early disclosure of testifying informants, and because defendant Irving has not demonstrated a particularized need for disclosure on nontestifying informants, the court denies Irving's motion, as well as the motions of the other defendants.
4. Disclosure of Coconspirators' Statements
Defendants Cesar Todd-Murgas, Ruben Todd-Murgas, Jayson Jones, Vincente Rogers, and Tricia Irving move for disclosure of coconspirators' statements pursuant to Fed.R.Crim.P. 16(a)(1)(A). Rule 16 explicitly provides that statements made by the defendant himself are discoverable. The general rule is that Rule 16 does not encompass the statements made by alleged coconspirators. See United States v. Percevault, 490 F.2d 126, 130-131 (2d Cir. 1974). Despite the general rule, however, this court has held that under a broad reading of Rule 16, statements of coconspirators made during the course of and in furtherance of a conspiracy that are attributable to a defendant are discoverable by that defendant. See, e.g., United States v. Konefal, 566 F. Supp. 698, 706-07 (N.D.N.Y. 1983) (Munson, C.J.).
This court's holding in Konefal that coconspirators' statements are discoverable applies only where the government does not intend to call the coconspirators as witnesses at trial. See id. Where the government does intend to call such coconspirators as witnesses, the Jencks Act governs and expressly makes statements of government witnesses, including coconspirators, not discoverable until the witness testifies. Id.
Here, defendants request statements of their alleged coconspirators, all of whom are apparently named as defendants in the indictment. Following its previous holding in Konefal, the court finds that fairness and the interest of justice require the government to disclose the statements of alleged coconspirators who are named as defendants and who the government will not call as witnesses. Only such statements that are admissible under Fed. R. Evid. 801(d)(2)(E) need be cross-disclosed.
In its response, the government takes its usual shots at Konefal. The court has previously addressed such attacks. See Walker, 922 F. Supp. at 742-43. The government however has unsheathed a new bolt from its quiver: In re United States, 834 F.2d 283 (2d Cir. 1987). The government's reliance on this case requires careful analysis. The court has consequently considered that authority-- and now finds it inapposite.
To fully understand In re United States, the court must examine the district court opinion below which In re United States addresses and repudiates. See United States v. Gallo, 654 F. Supp. 463 (E.D.N.Y. 1987). In addition, Federal Rule of Criminal Procedure 16(a)(1)(A) must be examined to determine which statements it applies to. After performing that analysis, it becomes evident that In re United States disagreed with the Gallo court's interpretation of Rule 16 and reversed its failure to apply the Jencks Act to protect the statements of prospective prosecution witnesses from pretestimony disclosure. It did not rebuff the rule in Konefal.
Rule 16(a)(1)(A) allows a defendant to discover before trial four types of statements:
(1) Written or recorded statements made by the defendant within the possession, custody or control of the government;
(2) The portion of any written record containing the substance of any oral statement made by defendant, before or after arrest, to a person the defendant then knows to be a government agent;