The opinion of the court was delivered by: SOTOMAYOR
SONIA SOTOMAYOR, U.S.D.J.
This Opinion and Order addresses the pre-trial motions of defendants John Cuff, Leroy Echols, Raymond Jackson, John Porter, Yvonne Miller and Paul Weller.
John Cuff moves this Court for 1) a bill of particulars, 2) disclosure of all witness statements, 3) disclosure and preservation of all witness memoranda; 4) disclosure of the identity of informants; 4) a hearing regarding a statement allegedly made by the defendant to an inmate informant; 5) disclosure of a list of trial witnesses; 6) disclosure of co-conspirator acts and statements and a hearing to determine the admissibility of such evidence; 7) a hearing to determine the admissibility and audibility of taped telephone conversations between the defendant and defendant Heatley while both were incarcerated; 8) suppression of the evidence obtained as a result of a search warrant of defendant's non-legal mail while incarcerated, and 9) suppression of physical evidence seized from an automobile on February 1, 1993. Cuff's motion to suppress evidence obtained from his mail will be addressed in a separate opinion.
Defendant Leroy Echols moves for 1) a bill of particulars, 2) disclosure of Rule 404(b) evidence and a hearing thereupon, 3) disclosure of the identity of informants and cooperators and an opportunity to interview witnesses before trial.
Defendant Raymond Jackson moves for 1) a severance of his trial from his co-defendants; 2) a bill of particulars and additional evidentiary disclosures, 3) a list of all contemplated Rule 404(b) evidence, including a full description of the witnesses and their testimony concerning such evidence, and 4) the striking of his alleged aliases as used in the Indictment.
Defendant Yvonne Miller moves 1) to suppress a statement made at the time of her arrest, 2) to sever her trial from her co-defendants, 3) disclosure of Rule 404(b) evidence thirty days before trial, 4) disclosure of impeachment evidence and a hearing on the admissibility of any such evidence, 5) disclosure of Brady and Giglio materials, 5) disclosure of inconsistent Kyle witness statements, and 6) disclosure of the identity of witnesses, informants and cooperating co-defendants. The motion to suppress Miller's post-arrest statement will be addressed by way of a separate opinion.
Defendant John Porter moves to suppress statements he made to law enforcement officials before his arrest. This motion will be addressed by way of a separate opinion.
Defendant Paul Weller moves for 1) a bill of particulars, 2) disclosure of government informants, and 3) disclosure of agreements between the Government and informants.
With the three exceptions noted above, the Court rules upon the outstanding motions in the following manner.
Suppression of Seized Evidence (Cuff)
In the Government's Memorandum of Law in Opposition to the Defendant's Pre-Trial Motions (hereinafter the "Gov. Mem.") at 55, the Government stipulated that it would not be using the evidence seized from the automobile on February 1, 1993, in its direct case. Accordingly, the Court denies the defendant's motion for a hearing because the defendant's motion has been rendered moot by the government's stipulation.
Disclosure of Confidential Informant Identity (Cuff)
At a conference held on November 10, 1997, the Court ruled that defendant Cuff had proffered insufficient grounds to entitle him to a hearing on whether his statements to a fellow inmate had violated his Sixth Amendment rights to counsel. The Government has presented the court with an affirmation of Assistant United States Attorney Mylan L. Denerstein in which the Government represents to the Court that at the time Cuff made his statements, the informant had been arrested and was under indictment for violating the narcotics laws. (Gov. Mem. Ex. 1). The informant, prior to his contact with Cuff, had attended three proffer sessions with AUSA Denerstein and during those sessions neither the informant nor the government spoke about defendant Cuff. Only after the informant's offer of cooperation was rejected and the defendant had pled to a standard plea agreement, without cooperation, did the informant approach the government about potentially incriminating statements made by defendant Cuff to him.
In an Order dated October 31, 1997, the Court asked defendant Cuff to advise the Court of what factual and legal questions still existed entitling the defendant to a hearing in light of the standards set forth in United States v. Birbal, 113 F.3d 342, 345 (2d Cir. 1997). The defendant responded by letter dated November 6, 1997, conceding that Birbal made clear that a defendant's Sixth Amendment rights are not violated when an inmate acts in an "entrepreneurial way" to seek, obtain, and offer information useful to the Government. See id. at 346. Rather, the informant must be soliciting information at the direction of the government. See id. ("an informant becomes a government agent . . . only when the informant has been instructed by the police to get information about the particular defendant."); id. ("there is no constitutional violation in the absence of solicitation").
As noted by the Court at the November 10, 1997 conference, however, the Court will not disclose the identity of an informant based upon sheer speculation, particularly when the Court has found, on prior occasions and now, that witnesses and informants are in danger in this case. The instant indictment charges the defendants with violating the substantive and conspiracy provisions of the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c) and (d). Many of the defendants, including Cuff, are charged with engaging in a continuing criminal enterprise in which they are alleged to have counseled, commanded, induced, participated in and caused the intentional killing of over ten individuals. Some of the individuals were killed allegedly because they were suspected of being witnesses against the activities of the enterprise. Moreover, this Court has had supervision of this case since its inception and has received numerous reports of threats made against co-defendants and their families. In addition, Cuff is alleged to have threatened to have a law enforcement agent killed as a result of that agent's participation in the investigation of this case. In short, the Court has found and continues to find that disclosing the names of witnesses, informants and cooperating co-defendants creates a substantial risk of serious danger to the security of such individuals. Accordingly, the Court's decision on this motion, as well as all of the pending motions, is informed by this background.
Nevertheless, understanding that a defendant's Sixth Amendment rights are fundamental and an interview of the inmate informant is the only manner in which counsel might secure sufficient information to entitle him to a hearing, the Court agreed as an exercise of its discretion to hold an in camera interview by defense counsel of the informant. During the interview, the informant's identity was ...