the Court denies the defendants' requests for a bill of particulars.
Disclosure of Informants, Cooperators and Witnesses (Echols, Jackson, Miller, Weller)
For the reasons discussed above, the Court has made a specific finding in this case that the disclosure of the identities of informants, cooperators and witnesses places these individuals in substantial and immediate risk in this case. No defendant has made a particularized showing that either the disclosure of any such identity, or a pre-trial interview with any such individual, is "essential" or "material" to his or her individual defense as that concept has been set forth in Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 628, 1 L. Ed. 2d 639 (1957) ("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 [informant's] privilege must give way") and more fully explained in United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988) (informant's testimony must be shown to be "material to [the] defense"). Accordingly, the Court denies the defendants' requests for the disclosure of informants, cooperators or witnesses before trial and denies the defendants' requests to interview such witnesses.
The Court, however, reserves decision on whether the Government should disclose the identities of informants or cooperators it chooses not to call as witnesses at trial. It is the judgment of this Court that until a week before trial, the Government cannot fairly discern which witnesses it will or will not use, and until that point the Court will not order disclosure of anyone's name. Therefore, a week before the trial, the Government must disclose, ex parte, to the Court the identities of such informants and cooperators, with a summary of their area of knowledge and the Government's explanation as to why those informants and cooperators would not be called at trial. The Government is also directed to have any such informants or cooperators ready and available for an interview with the Court or defense counsel if the Court should determine a need to disclose the identity of these individuals to counsel at that time. The Court will also want any § 3500 material, construed to mean any direct statement by the witness or any notes about witness disclosures, disclosed to the Court for its ex parte review at that time. Given the probable length of jury selection in this case, the Court believes that this disclosure schedule will provide defendants with ample time for investigation of these informants and cooperators.
Disclosure of Witness List (Cuff)
Because of the Court's express finding concerning the risk to the witnesses in this case posed specifically by defendant Cuff, the Court finds that the immediate disclosure of a witness list as permitted by 18 U.S.C. § 3432 is not warranted. The Court reserves decision of Cuff's motion under § 3432 until three days before trial at which time the Government is permitted to continue to demonstrate, by sufficient and particularized evidence to meet the preponderance standard set forth in § 3432, that disclosure would continue to "jeopardize the life or safety of any person." 18 U.S.C. § 3432.
Surplusage in the Indictment (Jackson)
After reviewing the Indictment and various statements by multiple defendants in this action, the Court concludes that the use of aliases in the Indictment is necessary and not unduly inflammatory or prejudicial. See United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir. 1990)("Motions to strike surplusage from an indictment will be granted only where the challenged allegations are "not relevant to the crime charged and are inflammatory and prejudicial."). Almost all of the co-defendants in this action were known to each other by nicknames. Nothing about the use of nicknames is necessarily prejudicial, and the inclusion of the nicknames in the Indictment will assist in obviating potential jury confusion about a defendant's alleged involvement in a multi-count, multi-defendant case. See United States v. Elson, 968 F. Supp. 900, 909 (S.D.N.Y. 1997) ("Aliases and nicknames should not be stricken from an Indictment when evidence regarding those aliases or nicknames will be presented to the jury at trial"); United States v. Ianniello, 621 F. Supp. 1455, 1479 (S.D.N.Y. 1985) (use of street names and aliases in an indictment "may well serve to obviate jury confusion."), aff'd, 808 F.2d 184 (2d Cir. 1986). The nicknames at issue here, "Jerry Woo" and "Little Cuz," are themselves not prejudicial and inflammatory. Under the totality of these circumstances, the Court denies defendant Jackson's motion to strike these names from the Indictment or their use at trial.
Disclosure of Co-Conspirator Statements and the Demand for a Hearing Thereupon (Cuff)
The Second Circuit has expressly held that "Rule 16 simply does not encompass [co-conspirator] statements, nor does the Jencks Act permit their disclosure over the objection of the government." United States v. Percevault, 490 F.2d 126, 131 (2d Cir. 1974); see also In Re United States, 834 F.2d 283, 287 (2d Cir. 1987)(memorialized statements of coconspirators about statements made by defendant not discoverable). Rule 16 permits discovery only of a defendant's statement, not those of others. See Percevault, 490 F.2d at 130-31. Accordingly, the Court denies Cuff's motion for disclosure of co-conspirator statements.
Cuff also moves for a prehearing on the admissibility of those statements. Although Bourjaily v. United States, 483 U.S. 171, 175-76, 97 L. Ed. 2d 144, 107 S. Ct. 2775 (1987) requires a court to determine, by a preponderance of the evidence, whether the statements of a co-conspirator are admissible under Fed. R. Evid. 801(d)(2)(E) -- a determination dependent upon the court's finding that a conspiracy existed, the defendant was a part of it, and the statements made were in furtherance of the conspiracy-- neither Bourjaily nor any other court precedent requires or recommends the use of pre-trial hearing (sometimes referred to as a "James hearing," see United States v. James, 576 F.2d 1121 (5th Cir. 1978)) to make this determination. In fact, the Second Circuit has expressly approved the practice of admitting such statements at trial subject to the government's introduction of evidence which will support the required finding under Bourjaily. See United States v. Tracy, 12 F.3d 1186, 1199-1200 (2d Cir. 1993); United States v. Henry, 861 F. Supp. 1190, 1196-97 (S.D.N.Y. 1994). The Court will make this determination during trial and accordingly denies defendant Cuff's motion for a hearing on this issue. The Court, however, reminds the Government of its representation in its Memorandum in Opposition that it will seek from the Court an advance ruling on any potentially doubtful evidence under the Bourjaily standard which it might seek to introduce at trial.
Suppression of Taped Prison Calls (Cuff)
Defendant Cuff moves to suppress taped telephone calls he had with co-defendant Heatley and others while the defendants were incarcerated at the Metropolitan Correctional Facility ("MCC"). I find, however, that the defendants indisputably consented to the recordings at issue.
The express or implied consent of one participant in a conversation is sufficient to satisfy the requirements of both the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Street Acts, 18 U.S.C. § 2510 et seq. See 18 U.S.C. § .2511(2)(c); United States v. White, 401 U.S. 745, 748-54, 91 S. Ct. 1122, 1124-27, 28 L. Ed. 2d 453 (1971) (Fourth Amendment does not bar the use of a conversation whose interception is consented to by another party); United States v. Workman, 80 F.3d 688, 692 (2d Cir. 1996) (Title III allows for recording without court order where one party expressly or impliedly consents); United States v. Barone, 913 F.2d 46, 49 (2d Cir. 1990) (where one party to conversation consents to recording, no need under Fourth Amendment or Title III to inform other parties or for court order).
The Second Circuit has also made clear that inmates are deemed to have impliedly consented to monitoring of their telephone calls where they receive notice of the surveillance and nevertheless use the telephone. See Workman, 80 F.3d at 693; United States v. Willoughby, 860 F.2d 15, 19-20 (2d Cir. 1988).
In its Memorandum in Opposition, the Government attached an affirmation by Dominique Raia, a Department of Justice Staff Attorney at the Bureau of Prisons ("BOP"), affirming that the MCC, pursuant to promulgated BOP regulations at 28 C.F.R. § 540.102, has authorized wardens to monitor and intercept all inmate conversations. (Gov't Mem. Ex. 2). Prisoners, like defendants Cuff and Heatley, are advised of this policy in a notice form they sign upon admission to the facility, acknowledging that they know and understand the prison's monitoring and recording rules. The Government provided acknowledgment forms which were signed by defendants Cuff and Heatley. Those forms explicitly state that the inmate is aware and understands that the "[BOP] reserves the authority to monitor (this includes recording) conversations on any telephone located within its institutions . . . ." (Gov't Mem. Ex. 4).
The BOP policy is repeated in the Inmate Handbook given to each inmate upon his admission into the BOP system. See MCC Inmate Handbook, at 5 (Gov't Mem. Ex. 3) ("Telephones are on each unit for your use and are subject to be monitored."). Finally, Ms. Raia explains in her affirmation that near each telephone in the BOP housing units, a notice is printed advising inmates that "All conversations on this telephone are subject to monitoring. Your use of this telephone constitutes consent to this monitoring. You must contact your unit team to request an unmonitored attorney call." (Gov't Mem. Ex. 2).
Defendant Cuff has not denied any of Ms. Raia's evidentiary allegations. Despite the opportunity to submit a reply memorandum, none was proffered to this Court. Accordingly, defendant Cuff has not created a material issue in dispute requiring a hearing. Under the undisputed facts, defendant Cuff acknowledged that he understood his calls were both being monitored and recorded. With this acknowledgment form, he gave his consent to the tape recording of his conversations, and the Court therefore denies his motion to suppress this evidence.
Disclosure of 404(b) Evidence (Echols, Jackson, Miller)
Fed. R. Evid. 404(b) requires that the government "provide reasonable notice in advance of trial . . . of the general nature of any .... evidence it intends to introduce at trial" of other or similar crimes, wrongs or acts, which a defendant has committed. The Court understands that the evidence which the Government wishes to offer at trial "may well change as the proof and possible defenses crystallize" (Gov't Mem. at 49) as trial approaches and even as a trial unveils. However, adequate advance notice to the defendants and the Court of the use of such evidence is necessary for a defendant to prepare for trial, prevent unfair surprise, and for the Court to rule upon the admissibility of such evidence. Although the Government offers to make such disclosures within ten days of trial, the Court determines this to be an inadequate notice time. The Court requires the Government to make such disclosure, with a full and particularized explanation of the grounds for admissibility of such evidence, within three weeks of trial, and the defendants are to move for exclusion of any such evidence within two weeks of trial. The Government can respond to the defendants' motion within five calendar days thereafter. The Court will schedule a pre-trial conference to address these issues just before trial.
The Court understands that the Government may apply to be excused from providing such information before trial upon a showing of good cause under Rule 404(b). The Court expects a particularized proffer of good faith by the Government, however, at the three week disclosure period specified herein. Moreover, the Court expects that during further trial preparation and the trial itself new disclosures may become necessary. The Court will evaluate those late further disclosures under the good cause standard set forth in Rule 404(b). For all of these reasons, the Court denies in part and grants in part the motions of Raymond Jackson, Leroy Echols and Yvonne Miller to compel the Government's immediate disclosure under Rule 404(b)
Disclosure of Impeachment Evidence (Miller)
Defendant Miller provides no authority for the proposition that she is entitled to disclosure, before trial, of impeachment evidence the government possesses. The rules she cites -- Fed. R. Evid. 403, 608, and 609 -- contain no such command. The Court agrees with the Government that the defendant is not entitled to any such evidence until after she testifies. The Court, however, conditions its denial of the defendant's motion upon the Government's representation that it will seek a ruling from the Court on the admissibility of any impeachment evidence prior to its cross-examination of the defendant, if she chooses to testify.
Disclosure of Brady, Giglio, Kyle and Jencks Act materials (Cuff, Miller, Weller)
A defendant has no constitutional right to receive Brady, Giglio, Kyles, or Jencks Act materials before trial. See United States ex rel. Lucas v. Regan, 503 F.2d 1, 3 n.1 (2d Cir. 1974); United States v. Nova-Nunez, 1997 U.S. Dist. LEXIS 662, at *9-10, No. 96 Cr. 0599, 1997 WL 30965, at *3-4 (S.D.N.Y. Jan. 24, 1997). Exculpatory materials, however, must be disclosed in sufficient time to permit a defendant to make effective use of them at trial. See Grant v. Alldredge, 498 F.2d 376, 382 & 383 n.7 (2d Cir. 1974); United States v. Chen De Yian, 1995 U.S. Dist. LEXIS 8560, at *11, No. 94 Cr. 719, 1995 WL 368445, at *4 (S.D.N.Y. June 21, 1995). The Government represents to the Court that it has already provided defendant Miller with Brady materials and that it will disclose such materials to all defendants as it is found. The Government intends, however, to provide Giglio and Kyles materials at the same time witness statements are provided as § 3500 materials. The Court cautions the Government, however, that sufficient time must be built into such disclosures to permit counsel to adequately investigate and prepare for trial. Accordingly, as the trial date approaches, the Court, government and counsel will confer as to an orderly time frame of disclosure of materials that will not compromise the safety of witnesses but ensures that counsel are not overwhelmed with materials during trial and are given adequate time and opportunity to identify and investigate inconsistencies among the statements of witnesses. On these grounds and subject to the limitations set forth herein, the defendant Miller's motion for immediate production of Brady, Giglio, Jencks Act and Kyles materials is denied.
Production and Preservation of Agent Notes (Cuff)
The Government has agreed to preserve original notes and memoranda if they exist. The Court assumes by this agreement that the government will instruct agents not to destroy any such notes if they are created henceforth. Upon this representation of the Government, the Court denies defendant Cuff's request for an order to preserve such notes as mooted by the Government's agreement. The Court denies defendant Cuff's motion for immediate production of those notes on the same grounds the court has denied defendant Miller's requests for immediate production of Brady, Giglio, Jencks and Kyle materials.
For the reasons discussed, the motions of defendants Cuff, Echols, Jackson, Miller, Porter, and Weller are denied in part and granted in part. For those issues reserved by the Court herein, the Court will either issue separate orders or render decisions on the record after the pertinent hearings, some of which are still on-going, are completed.
Dated: New York, New York
February 13, 1998