2. Discovery and Inspection
The ambit of pretrial discovery and inspection is set forth clearly and at length by Fed. R. Crim. P. 16.
In the instant case, each defendant moves for discovery and production of all materials enumerated under the rule.
However, the government has provided defendants with copies of taped conversations as well as reports relating to the sale of cocaine base and laboratory analysis of the substance's content pursuant to Fed. R. Crim. P. 16. Moreover, the government has acknowledged its Rule 16 responsibilities and has pledged to continue to comply. Thus, in light of the government's continuing cooperation in discovery, the Court finds it unnecessary to issue an order directing the government to fulfill its Rule 16 duties at this time.
Finally, the Court notes that insofar as defendants' requests pertain to statements of co-conspirators, such statements "are not discoverable under Federal Rule of Criminal Procedure 16(a)." United States v. Munoz, 736 F. Supp. 502, 504 (S.D.N.Y. 1990)(citations omitted). Rule 16's plain language applies only to "the discovery of statements 'made by the defendant.' The rule does not mention and is not intended to apply to the discovery of statements made by co-conspirators." See United States v. Roberts, 811 F.2d 257, 258-59 (4th Cir. 1987) (en banc). For these reasons, defendants' Rule 16 motions are denied.
3. Motion to Compel Disclosure Of Co-Conspirators' Statements
Although co-conspirators' statements are not discoverable under Fed. R. Crim. P. 16(a), such statements may be discoverable under the Jencks Act, 18 U.S.C. § 3500. See United States v. Roberts, 811 F.2d 257, 258-59 (4th Cir. 1987)(en banc)(Rule 16 "pertains to the discovery of statements 'made by the defendant.' The rule does not mention and is not intended to apply to the discovery of statements made by co-conspirators.) The Jencks Act protects witnesses' statements from discovery until after the witness has testified on direct examination at trial. See 18 U.S.C. § 3500(a). The purpose of this protection is to safeguard witnesses from possible reprisals, and thus, is consistent with "the strong public interest in encouraging the free flow of information to law enforcement officers" used to justify secreting informants' identities. See United States v. Ciambrone, 601 F.2d 616, 626 (2d Cir. 1979); United States v. Tucker, 380 F.2d 206, 213 (2d Cir. 1967). The Second Circuit has held that under the Jencks Act courts are not permitted to order, and defendant are not entitled to, production of co-conspirators's statements prior to trial. See In re United States, 834 F.2d 283 at 287; See also 18 U.S.C. § 3500; United States v. Percevault, 490 F.2d 126 (2d Cir. 1974).
Defendants argue that, despite the Jencks Act's concerns of intimidation, disclosure of co-conspirators' statements is appropriate here because both defendants are incarcerated and thus pose no threat to any one's safety. The Court does not find this argument to be completely persuasive, however, because a defendant's reach may exceed his grasp with regard to intimidation.
The Court finds no reason to depart from its usual practice of requiring Jencks Act material to be handed over after jury selection. The Court, therefore, grants defendants' motions for early production co-conspirators's statements, but only to the extent set forth herein.
4. Motion to Compel Disclosure of Witnesses' Identities
Defendants must show a specific need for the government's witness list in order succeed on a motion for compulsory disclosure. See United States v. Cannone, 528 F.2d 296, 301-02 (2d Cir. 1975). It is not enough to simply assert that such list is necessary in preparation for trial. See United States v. Santoro, 647 F. Supp. 153, 186 (E.D.N.Y. 1986), rev'd, on other grounds, United States v. Davidoff, 845 F.2d 1151 (2d Cir. N.Y. 1988). Additionally, the government is not required to identify individuals that it does not intend to call as trial witnesses. See United States v. Zirpolo, 288 F. Supp. 993, 1019 (D.N.J. 1968), rev'd on other grounds, 450 F.2d 424 (3d Cir. 1971)(noting that since the government is not required to disclose who will testify it is certainly not necessary to divulge who will not appear). Moreover, the identity of grand jury witnesses is protected from the disclosure under Fed. R. Crim. P. 6(e), and so defendants have no right to such information.
In the instant case, defendants' contend that disclosure of co-defendant cooperation, the names and addresses of individuals who testified before the grand jury and the identity of each witness the government intends to call at trial are necessary for cross-examination and the mounting of an adequate defense. With regard grand jury witnesses, such persons' identities are expressly protected from disclosure. See Fed. R. Crim. P. 6(e). As to other witnesses, defendants argue that in light of the government's expressed intention to call multiple witnesses, early production of a witness list is necessary for defense preparation. However, Davidoff rebukes this request because it essentially asks for additional preparatory materials without showing "specific need," as required by Cannone. See Davidoff, 845 F.2d 1151; Cannone, 528 F.2d 296, 301-02. Therefore, the Court denies defendants' motions for production of witnesses' identities.
5. Motion to Disclose Informants' Identities
In Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 628, 1 L. Ed. 2d 639 (1957), the Supreme Court held that "where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." Despite this holding, however, the Supreme Court has held that no fixed rule for determining when to disclose the identity and information held by an informant is appropriate. See S. Ct. 623 at 628-29. Rather, the Court requires a balancing of the public's interest in protecting the flow of information against the individual's right to prepare his defense. See Id. The decision must be made in light of "the particular circumstances in each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." See Id. at 629.
The Second Circuit has interpreted Roviaro to require disclosure of informant information only when the informant's testimony is shown to be "material to the defense." See United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988). The determination of materiality lies with the trial judge who is subject to an "abuse of discretion" standard for this decision. See DiBlasio v. Keane, 932 F.2d 1038, 1042 (2d Cir. 1991).
In Saa the Circuit stated that "it is not sufficient to show that the informant was a participant in and a witness to the crime charged." See Saa at 1073. However, "disclosure has been required at trial where the informant is a key witness or participant in the crime charged, someone whose testimony would be significant in determining guilt or innocence." See United States v. Russotti, 746 F.2d 945, 950 (2d Cir. 1984). Moreover, a defendant must show that the "information sought is relevant and essential to the presentation of his case on the merits, and that the need for disclosure outweighs the need for secrecy." See Cullen v. Margiotta, 811 F.2d 698, 715-16 (2d Cir.).
In the instant case, defendants' move the Court for an order compelling the government to disclose informants' identities. Apart from bald statements that the disclosure is necessary for trial preparation, however, neither defendant has shown that such disclosure is material to his defense. As such, defendants cannot compel disclosure of an informant's identity. See United States v. Trejo-Zambrano, 582 F.2d 460, 466 (9th Cir.)(holding that a defendant cannot compel disclosure of an informant's identity upon mere speculation speculate that such disclosure will be helpful to his case). For this reason, the Court denies defendants' motions.
6. Exculpatory Materials
Pursuant to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1967), and its progeny, a prosecutor must disclose certain exculpatory material to the accused. See e.g., United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976); Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972). Normally, exculpatory material must be provided to the defendant as it becomes known to the prosecution. See United States ex rel. Lucas v. Regan, 503 F.2d 1, 3 n.1 (2d Cir. 1974).
Here defendants move the Court to compel the government to disclose all exlcupatory materials as required by Brady. However, the government's brief plainly states that it has no Brady materials. Thus, the Court denies defendants' request for an order compelling production of Brady materials. However, the Court reminds the government that disclosure under Brady is an ongoing duty. Accordingly, should any such materials arise, the government must comply with the well-established disclosure rules at that time.
Generally, joinder of multiple defendants is permissible where the defendants have participated in the same act, transaction or series of acts or transactions that are part of a common plan. See Fed. R. Crim. P. 8(b); United States v. Attanasio, 870 F.2d 809 (2d Cir. 1989). However, severance is appropriate where it appears that a "defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment." See Fed. R. Crim. P. 14.
The party requesting severance has the significant burden of showing it is necessary. See United States v. Panza, 750 F.2d 1141, 1149 (2d Cir. 1984)("the defendant seeking a severance must shoulder the difficult burden of showing that the prejudice to him from joinder is sufficiently severe to outweigh the judicial economy that would be realized by avoiding lengthy multiple trials"); United States v. Losada, 674 F.2d 167, 171 (2d Cir. 1982). The moving party must show "substantial prejudice" which must be more than evidence of "a better chance of acquittal" if severance was granted. See United States v. Potamitis, 739 F.2d 784, 790 (2d Cir. 1984).
Severance should only be granted where "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." See Zafiro v. United States, 506 U.S. 534, 122 L. Ed. 2d 317, 113 S. Ct. 933, 938 (1993). Mere antagonism among the defenses used by the co-defendant is not sufficient to warrant severance. See United States v. Serpoosh, 919 F.2d 835, 837 (2d Cir. 1990). In addition, the movant must overcome the presumption in favor of a joint trial for all defendants charged in a single conspiracy. See United States v. Dickens, 695 F.2d 765, 778-79 (3d Cir. 1982). Moreover, severance may be granted if the defendant has shown that the jury could not reasonably be expected to "compartmentalize" the evidence as it relates to him and that the failure to sever prejudices him to the point that he is denied a fair trial. See Id. at 778. The decision to grant a motion for severance finally falls within the sound discretion of the trial court. See Fed. R. Crim. P. 14.
Here, Sapp seeks severance on the grounds that: (1) the jury may find him guilty by association; (2) his defenses are apt to be antagonistic to his co-defendant's; and (3) he will be denied access to potentially exculpatory co-defendant testimony. In his request for severance, Garrison asserts in conclusory terms that he would be prejudiced if tried jointly and posits the likelihood of a Bruton issue. See Bruton, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968)(holding that introduction of a co-defendant's hearsay confession implicating the accused violated the accused's right to confrontation despite the court's having given a limiting instruction).
The Court finds while Bruton may pose a problem in a multi-defendant case such as this, Richardson v. Marsh, 481 U.S. 200, 211, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987), provides a solution by allowing use of a co-defendant's hearsay confession where a limiting instruction has been given and the confession is redacted to eliminate reference to other defendants. Thus, pursuant to Richardson and the Second Circuit cases that have followed its teaching, the Court finds no reason to sever trial because of a potential Bruton issue. See e.g., United States v. Williams, 936 F.2d 698, 700 (2d Cir. 1991)(holding that if a redacted confession, when viewed in isolation of other trial evidence, does not incriminate defendant, it may be admitted upon a proper limiting instruction). Rather, should a Bruton issue arise, the Court will address it in keeping with the aforementioned cases.
As to the defendants' remaining severance arguments, the Court finds them unpersuasive. First, the Second Circuit has generally held that defendants who are indicted together and properly joined under Fed. R. Crim. P. 8(b), should be tried together. See United States v. Ventura, 724 F.2d 305, 312 (2d Cir. 1979). In this regard, joint trials are more efficient and "serve the interests of justice [by] avoiding the scandal and inequity of inconsistent verdicts." See Richardson, 481 U.S. at 206.
Second, the possibility of antagonistic testimony does not mandate severance. See Serpoosh, 919 F.2d at 837. Here, Sapp argues that no more than that which was held insufficient in United States v. Villegas, 899 F.2d 1324, 1346 (2d Cir. 1990). In Villegas, the Circuit stated that "the mere fact that co-defendants seek to place blame on each other is not the sort of antagonism that requires severance."
Third, in deciding whether to grant severance based on the inability of the co-defendant to testify in favor of another defendant during a joint trial, the trial court may consider at least four factors: "(1) the sufficiency of the showing that the co-defendant would testify at a severed trial and waive his Fifth Amendment privilege; (2) the degree to which exculpatory testimony would be cumulative; (3) the counter argument of judicial economy; and (4) the likelihood that the testimony would be subject to substantial, damaging impeachment." See United States v. Finkelstein, 526 F.2d 517, 523-24 (2d Cir. 1975). Sapp's motion does not even address these issues. Thus, the Court denies this motion because defendants have failed to make a sufficient showing that severance is necessary.
8. Dismissal of Indictment
Generally speaking, the Federal Rules of Criminal Procedure simply require an Indictment to contain "a plain, concise and definite written statement of the essential facts constituting the offense charged" and the rule of law allegedly violated by the defendant in each count against him. See Fed. R. Crim. P. 7(c)(1). There is no requirement of specificity, and the Indictment may be amended with the court's permission any time until the verdict is returned. See Fed. R. Crim. P. 7(e).
In the instant case, both defendants gave notice of motion to dismiss the Indictment, but have not provided any factual or legal grounds to support this request in their memoranda of law. Therefore, the Court denies these motions.
An evidentiary hearing need not be granted as a matter of course and generally will be held "only if the moving papers allege facts with sufficient definiteness, clarity and specificity to enable the trial court to conclude that relief must be granted if the facts alleged are proved." United States v. Carrion, 463 F.2d 704, 706 (9th Cir. 1972). General and conclusory factual allegations that are based upon mere suspicion or conjecture, however, will not suffice to necessitate a hearing. See Cohen v. United States, 378 F.2d 751, 760 (9th Cir. 1967). Moreover, if facts urged in support of a hearing would not entitle the moving party to relief as a matter of law, no evidentiary hearing is required. See Gentile v. County of Suffolk, 926 F.2d 142, 148 (2d Cir. 1991), citing, United States v. Irwin, 612 F.2d 1182 (9th Cir. 1980).
Sapp's Notice of Motion contains a statement that "upon information and belief" probable cause was "lacking" as to the issuance of search, arrest, or electronic surveillance warrants. In his Memorandum of Law, however, Sapp alleges no facts to support his contention that the warrants were defective. Therefore, the Court must deny Sapp's suppression motion for lack of factual and legal sufficiency. See Gentile, 926 F.2d at 148.
Similarly, Garrison moves to suppress all documents, writings, currency, controlled substances, business records, recordings, etc. the prosecution intends to use at trial, as well as any statement or action made by the defendant in violation of his Fifth, Sixth and Fourteenth Amendment rights. Garrison also fails to set forth any factual basis for this motion. See Id.
Finally, the government states in its opposition papers that it is unaware of any post-arrest statements or physical evidence obtained in relation to this matter. Absent anything to suppress, the Court cannot grant Garrison's motion. The Court therefore denies Garrison's motion to suppress.
10. Evidence Relating to Prior Convictions or Bad Acts
Defendants raise evidentiary issues relating both to Fed. R. Evid. 404 and 609. The Court addresses these issues in turn.
a. 404(b) Material
Rule 404(b) allows the admission of evidence of other crimes, wrongs or acts for purposes including "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed. R. Evid. 404(b). However, the Rule also requires that "the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on good cause shown, of the general nature of any such evidence it intends to use at trial." See Fed. R. Evid. 404(b); see also, United States v. Paccione, 949 F.2d 1183, 1199 (2d Cir. 1991). This is designed to reduce surprise and promote early resolution of admissibility issues. See Fed. R. Evid. 404(b)
Defendants seek an order from the Court directing the government to disclose any similar or extrinsic acts evidence the government intends to use at trial. Thus, according to Rule 404(b), the Court grants defendants motion for disclosure of similar and extrinsic acts evidence the government plans to use at trial. However, the Court notes that this disclosure is intended to require the prosecution only "to apprise the defense of the general nature of the evidence of extrinsic acts," and it does not supersede other rules on admissibility and disclosure such as the Jencks Act, nor does it require the government to reveal the names and addresses of its witnesses. See Committee Note to 1991 Amendment to Rule 404(b). The government has stated that it understands its duties under 404(b), and that it has satisfied them. As the government is aware of its duties and appears to be in compliance, the Court denies defendants' motion.
b. Rule 609(a) Material
Defendants seek to prevent the government from admitting evidence of prior felony convictions and bad acts under Fed. R. Evid. 609
where the prejudicial effect outweighs its probative value under Fed. R. Evid. 404(b). The Court, however is hindered in any effort to rule on evidentiary questions outside a factual context. See Luce v. United States, 469 U.S. 38, 41, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984)(stating that "to perform this balancing, the court must know the precise nature of the defendant's testimony, which is unknowable when . . . the defendant does not testify"). This is particularly true under Rule 609(a)(1), which directs the Court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant. Accordingly, the Court declines to determine any evidentiary issues that may arise under 609 outside the context of the trial.
11. Leave to Renew or Initiate New Motions
Sapp, "in anticipation of materials to be produced and responses given by the government in response to the instant application," also moves the Court to reserve his right to bring further motions as are necessary for his defense. Garrison essentially makes an identical motion.
The government does not oppose defendants' requests inasmuch as they apply to motions which could not have been made within the original time period authorized by the Court. To this extent only, the Court will allow defendants leave to renew or initiate new motions.
12. Audibility Hearing
The Second Circuit has expressed a "clear preference for the admission of recordings notwithstanding some ambiguity and inaudibility, as long as the recordings are probative." See United States v. Arango-Correa, 851 F.2d 54, 58-59 (2d Cir. 1988). Therefore, a recording is generally admissible unless its audibility is so substantially impaired as to render it unintelligible. See Id. at 58.
Both defendants have had access to the government's tapes and the transcripts thereof. Based on their review, defendants' claim that portions of the recording are inaudible. However, the government claims that even if the tapes are not fully inaudible, they must be admitted under United States v. Weiser, 428 F.2d 932, 937 (2d Cir. 1969), since partial inaudibility goes to weight, not admissibility.
Because the parties dispute the tapes' audibility, the Court must determine whether the recordings are "sufficiently audible to be probative." See United States v. Bryant, 480 F.2d 785, 790 (2d Cir. 1973)(stating that trial court has discretion to decide if partially audible recordings are admissible). Thus, the Court grants defendants an audility hearing to determine the extent of the recordings' coherence. Such hearing will be conducted immediately before trial.
13. Request to Join in Co-Defendants' Motions
Finally, Sapp, pursuant to Fed. R. Crim. P. 12 and 57, seeks to join the motions made by his co-defendants but does not specify what these arguments are. To allow such joinder would inhibit the government's ability to reply to such arguments effectively. Thus, the Court denies Sapp's motion.
For the foregoing reasons, the Court GRANTS the government's motion to amend the Indictment. Furthermore, the Court GRANTS defendants' motions for early production of Jencks Act materials, but only to the extent allowed by the local rules. The Court also GRANTS defendants' motions to renew or initiate new motions and for an audibility hearing. The Court DENIES all other motions made by Sapp or Garrison.
IT IS SO ORDERED.
Dated July 15, 1997 at Albany, New York
Thomas J. McAvoy
Chief U.S. District Judge