Coley's Post Arrest Statements
In her initial motion papers, defendant Coley moves to suppress certain post-arrest statements which the government has indicated that it may seek to introduce at trial. These statements were allegedly made to FBI agents following her arrest on January 24, 1996. Defendant does not contend that she did not receive her Miranda warnings, but rather contends that due to her lack of sophistication, she did not understand her rights and therefore any waiver of these rights was not knowing and voluntary.
The government, in its papers, urges this Court to deny Coley's motion without an evidentiary hearing based on her failure to allege, with specificity, facts sufficient to raise an issue that, if proved, could lead to the suppression of evidence. See United Sates v. Pena, 961 F.2d 333, 339 (2d Cir. 1992) (noting that the allegations in the moving papers must be "definite, specific, detailed and non-conjectural") (citations and internal quotations omitted); United States v. Warren, 453 F.2d 738, 743 (2d Cir.), cert. denied, 406 U.S. 944, 32 L. Ed. 2d 331, 92 S. Ct. 2040 (1972). The government argues that since the defendant failed to present an affidavit of an individual with personal knowledge of the facts, United States v. Gillette, 383 F.2d 843, 848-49 (2d Cir. 1967), and merely presented a brief lacking in specificity and case law support for her claim, this Court has the discretion to deny the motion without the need to hold an evidentiary hearing. See United States v. Warren, 453 F.2d at 743.
There is, however, no need for this Court to address the issue at this time because at the hearing held on August 12, 1997, counsel for defendant Coley requested this Court to issue an order providing for a psychiatric evaluation of the defendant to determine her competency and ability to understand her rights. The government consented, subject to an order allowing the government to conduct its own evaluation of defendant, and the court reserved decision on the issue. On September 10, 1997, Judge Gershon appointed Dr. Kathy F. Yates, a psychologist, to conduct an examination of Coley.
Accordingly, based on the consent of the parties, this Court has stayed its decision on this motion pending a further report from the parties.
Jackson's Motion to Suppress Physical Evidence
Defendant Alfred Jackson moves to suppress all physical evidence seized from 181 Hegeman Avenue on the grounds that the warrant for Jackson's arrest was based in large part on the information gathered from the wiretaps. Since this Court has recommended that the wiretap evidence not be suppressed and Jackson has raised no other grounds for suppressing the physical evidence seized during the search, this Court respectfully recommends that Jackson's motion be denied.
Jackson's Discovery Motion
Pursuant to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), Jackson moves for an order requiring the government to produce all recorded statements, notes, or memorandum reflecting statements made by former co-defendant, Althea Pierce, with respect to the conspiracy, regardless of whether it pertains to Mr. Jackson or not. Jackson also requests that the government produce Ms. Pierce for an interview by defendants' agents.
In response, the government has submitted, as part of the May Affidavit, the substance of statements made by Pierce regarding Jackson. According to the May Affidavit, Ms. Pierce has stated that while she knows Jackson from 181 Hegeman Avenue, she is not aware that he was involved in drugs, and that when dealers stashed their drugs in his doorway, Jackson did not approve. She has also told the agents that Jackson would argue with King about keeping drugs and guns in the abandoned building next to Jackson's address.
Apart from these statements, the government states that it is unaware of any other Brady material regarding Jackson. To the extent that Jackson seeks all statements by Pierce for use for impeachment purposes, the government indicated at the hearing that it would disclose such information two weeks from the hearing. This Court agrees that that is sufficient under the law, see United States v. Nixon, 418 U.S. 683, 701-02, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974), and recommends that, absent a showing that the government has failed to comply with its obligations under Brady, see, e.g., United States v. Schwimmer, 649 F. Supp. 544, 549-50 (E.D.N.Y. 1986), defendant Jackson's motion should be denied.
Rule 404(b) Evidence
Pursuant to Rule 404(b) of the Federal Rules of Evidence, defendants Coley, Jackson, and King
move for an order requiring the government to give notice of its intention to offer evidence of any similar acts against the defendants. Rule 404(b) requires the government to "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 the evidence [of the similar act] it intends to introduce at trial." Fed. R. Evid. 404(b).
At the August 12, 1997 hearing, counsel for the government acknowledged her responsibility under Rule 404(b) and represented to this Court that the government would comply with its obligations. In view of the government's indication of compliance, this Court sees no reason to enter an order at this time and, accordingly, respectfully recommends that defendants' request be denied.
Any objections to this Report and Recommendation must be filed with the Clerk of the Court, with a copy to the undersigned, within ten (10) days of receipt of this Report. Failure to file objections within the specified time waives the right to appeal the District Court's order. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 6(e), 72; Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).
The Clerk is directed to mail copies of this Report and Recommendation to the parties.
Dated: Brooklyn, New York
November 7, 1997
Cheryl L. Pollak
United States Magistrate Judge