enable the Defendants to use the material effectively at trial.
In addition, as discussed previously, Defendants argue that the
Government should produce as Brady material statements from EDS employees
who may have provided exculpatory information to the EDS investigators.
The Government must disclose information to the defendant to insure that
the defendant will not be denied access to exculpatory evidence known
only to the Government. United States v. LeRoy, 687 F.2d 610, 619 (2d
Cir. 1982); see also Tate v. Wood, 963 F.2d 20, 25 (2d Cir. 1992). As
noted above, the scope of disclosure required by Brady and its progeny is
limited to such evidence the suppression of which would be likely to
affect the outcome of the proceeding or to undermine confidence in that
outcome. Coppa, 267 F.3d at *144. The Government is not obligated to
disclose its investigative files merely because they contain information
which could assist the defendant. United States v. Zackson, 6 F.3d 911,
918 (2d Cir. 1993); LeRoy, 687 F.2d at 618; see also United States v.
Agurs, 427 U.S. 97, 109 (1976). Furthermore, exculpatory and material
evidence is not required to be disclosed under Brady if the defendant
knows or should have known of "the essential facts permitting him to take
advantage of any exculpatory evidence." Zackson, 6 F.3d at 918 (internal
quotation omitted). See also Zagari, 111 F.3d at 320; Gonzalez, 110 F.3d
In fulfilling its obligations under Brady, the Government may direct
the Defendants' attention to any witnesses who may have material
exculpatory evidence. Once the Defendants are aware of the existence of
such witnesses, the Defendants "may attempt to interview them to
`ascertain the substance of their prospective testimony,' or subpoena
them if the Government does not intend to call them as witnesses at
trial." Jacques Dessange, Inc., 2000 WL 280050, at *8 (citing United
States v. Ruggiero, 472 F.2d 599, 605 (2d Cir. 1973)).
Early Production of Giglio and 18 U.S.C. § 3500 Materials
Defendants requests that the Court direct the Government to immediately
provide Giglio material*fn4 and section 3500 (Jencks Act) materials. In
Coppa, the Court of Appeals for the Second Circuit made clear that the
timing requirement for disclosure of Giglio material is the same as that
for exculpatory materials required to be disclosed under Brady. See
Coppa, 267 F.3d at 139. In other words, Giglio material must be disclosed
in time to permit its effective use at trial. Id. at 146. Thus, just as
the Government has no obligation to provide Brady-type material
exculpatory evidence on Defendants' demand, the Government has no
obligation to provide Giglio-type impeachment material on Defendants'
demand. As is the case with Brady material in general, it is the
Government's responsibility to determine what Giglio evidence is material
and when such evidence must be disclosed to permit its effective use.
With respect to section 3500*fn5 materials, the Court in Coppa made
clear that unless witness statements are material in the Brady sense,
they are not subject to required disclosure outside the requirements of
section 3500. See Coppa, 267 F.3d at
146. Accordingly, the Government is not required to produce section 3500
materials other than as required by the statute, unless such statements
are material within the meaning of Brady. In such case, the Government
must produce material witness statements in time to permit their
effective use at trial. Id.
Federal Rule of Evidence 404(b) Materials
Defendants request that the Court direct the Government identify
evidence sixty days before trial, that may be proffered pursuant to
Fed.R.Evid. 404(b). Rule 404(b) provides, in pertinent part:
[e]vidence of other crimes, wrongs, or acts . . . may
. . . be admissible . . . provided that upon request
by the accused, the prosecution in a criminal case
shall provide reasonable notice in advance of trial .
. . of the general nature of any such evidence it
intends to introduce at trial.
What constitutes reasonable notice depends upon the circumstances of
the particular case. See United States v. Kevin, No. 97 Cr. 763, 1999 WL
194749, at *13 (S.D.N.Y. April 7, 1999) (collecting cases). The purpose
of the notice provision is "to reduce surprise and promote early
resolution" of any challenge to admissibility of the proffered evidence.
Fed.R.Evid. 404(b), Advisory Committee's Note; Lino, 2001 WL 8356, at
*22. "While notice is typically provided no more than two to three weeks
before trial, a longer period is appropriate [where there is an] absence
of any threat to the safety of prospective witnesses and the . . .
Rule 404(b) evidence [is important to] this action." Nachamie, 91 F. Supp.2d
at 577 (internal citations and quotations omitted) (requiring Government
to provide 404(b) material 30 days prior to trial).
A survey of the cases reflects, as might be expected, a range time
periods determined by the courts to be reasonable notice for purposes of
Rule 404(b) disclosure. In Lino, the court determined that sixty days
notice was reasonable. In that case, however, the sixty day period was
proposed by the Government. See Lino, 2001 WL 8356, at *22. In United
States v. Livoti, 8 F. Supp.2d 246 (S.D.N.Y. 1998), the court ordered
Rule 404(b) disclosure 45 days before trial.*fn6 In United States v.
Yian, No. 94 Cr. 719, 1995 WL 368445 (S.D.N.Y. June 21, 1995), the court
ordered Rule 404(b) disclosure over 4 months prior to trial to permit
expected motions in limine.*fn7 In United States v. Aronson, No. 98 Cr.
564, 1999 WL 97923 (S.D.N.Y. Feb. 24, 1999), the court ordered
Rule 404(b) disclosure a month prior to trial. In United States v. Wilson,
No. 95 Cr. 688, 1997 WL 10035 (S.D.N.Y. Jan. 10, 1997), thirty days
notice was held sufficient.
The Government contends that Rule 404(b) notice thirty days prior to
trial constitutes reasonable notice under the circumstances of this case
because the Government has yet to finalize its order of proof and does
not yet know what facts may constitute 404(b) evidence. Defendants argue
that should the Government make Rule 404(b) disclosure, Defendants will
require time to interview witnesses and gather evidence to rebut the
In light of trial schedule in this case, the Court finds that
Rule 404(b) disclosure 45 days prior to trial is appropriate, providing time
for the Government to finalize its order of proof, for the parties to
present and the Court to resolve in limine issues relating to
Rule 404(b), and for Defendants to gather evidence in rebuttal.
For the reasons stated above, Defendants' request for an order
compelling the Government to file a bill of particulars identifying the
specific GAAP and EDS accounting rules, "street practices," principles of
"business judgment" and the provisions of Delaware law Defendants are
alleged to have violated is denied. Defendants' request for a bill of
particulars identifying each of the false claims and fraudulent documents
referred to in the Indictment is denied, except that the Government shall
within thirty (30) days deliver a bill of particulars specifying the
fraudulent claims to Massachusetts and New York that are referred to in
paragraph 28 of the Indictment. Defendants' request that the Government
file a bill of particulars identifying parties referred to, but not
identified in the Indictment is denied, and Defendants' request that the
Government provide particulars regarding the "assistance" of Defendant
Fasciana as alleged in the Indictment is denied. Defendants' request for
an order directing the Government to identify all documents that it
intends to rely on in its case-in-chief is denied. Defendants' request
for an order directing the Government to supplement its Rule 16(a)
production by producing the withheld portion of the EDS investigatory file
is denied to the extent that such items are not required to be produced
under Brady, Giglio or section 3500. Defendants' request for an order
directing early production of Brady, Giglio and section 3500 materials is
denied. The Government is directed to make its Rule 404(b) disclosure 45
days prior to trial.