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UNITED STATES v. KIPP

January 20, 1998

UNITED STATES OF AMERICA against RICHARD KIPP, et al., defendants.


The opinion of the court was delivered by: MCAVOY

 I. BACKGROUND

 On May 21, 1997, defendant Richard Kipp was indicted on charges of knowingly and intentionally conspiring and possessing with intent to distribute and distributing a quantity of cocaine base, a schedule 2 controlled substance, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846.

 Now before the Court is defendant's motion for an order requesting the following: (1) disclosure of Giglio, Brady and Jencks Act material; 2) disclosure of statements between co-conspirators; (3) a bill or particulars; (4) severance (5) the preservation of notes of law enforcement personnel; (6) an audibility hearing; and (7) to join the motions of other defendants.

 The Court addresses each request in turn.

 II. DISCUSSION

 1. Disclosure of Giglio, Brady and Jencks Act Material

 Pursuant to Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), a prosecutor must disclose exculpatory material upon request by the defense. The scope of evidence required to be disclosed has been expanded to include that which might affect the jury's determination of the credibility of a prosecution witness. See Giglio v. United States, 405 U.S. 150, 154, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972). It is now axiomatic that the prosecutor has an affirmative duty to volunteer evidence that arguably falls within the scope of Brady, and, in fact, is presumed to have knowledge of the contents of his files, such that claims that exculpatory evidence was overlooked will not be tolerated. See United States v. Agurs, 427 U.S. 97, 110, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976). Normally, Brady 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), cert. denied, 420 U.S. 939, 43 L. Ed. 2d 415, 95 S. Ct. 1149 (1975). In this case, the government acknowledges its continuing duty under Brady.

 Brady impeachment material, as well as Bagley and Giglio material, must be supplied to the defendant with the statements of witnesses producible under 18 U.S.C. § 3500(a) and (b) of the Jencks Act, which is to say these need not be produced until after the relevant witness has testified on behalf of the government. See United States v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983). The government also acknowledges its responsibilities in this area.

 It is the normal practice in the Northern District to require Jencks Act material to be handed over after the jury is selected for trial. To the extent that such material has not been handed over to date, the Court states that it can find no reason to depart from its usual practice and order early production, particularly since the government already seems to have provided Jencks material.

 Accordingly, the defendant's motions are DENIED.

 2. Disclosure of Statements of Co-conspirators

 Defendant seeks disclosure of any statements made by any alleged co-conspirators.

 "The statements made by co-conspirators 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). "The plain language of [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. Such statements are more properly governed by the Jencks Act, 18 U.S.C. § 3500." United States v. Roberts, 811 F.2d 257, 258-59 (4th Cir. 1987) (en banc). Further, a co-conspirator who testifies for the Government is a witness under the Jencks Act; thus, the Government is not required to disclose statements of co-conspirators that it intends to offer in evidence as an admission of the defendant. In re United States, 834 F.2d 283, 286-87 (2d Cir. 1987). The Second Circuit has held that under the Jencks Act, a ...


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