The opinion of the court was delivered by: JOHN KOELTL, District Judge
In a superseding indictment filed on September 12, 2003, the
defendant, Daniel A. Ojeikere, was charged with one count of conspiracy
to commit wire fraud, in violation of 18 U.S.C. § 371, as well as one
substantive count of wire fraud, in violation of 18 U.S.C. § 1343.
The superseding indictment also contains a forfeiture allegation pursuant
to 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461.
The superseding indictment specifically alleges that, from in or about
May 2002 through on or about February 26, 2003, Ojeikere and his alleged
co-conspirators purported to be Nigerian citizens who were entitled to an
inheritance worth approximately $17 million. Ojeikere and his
co-conspirators allegedly communicated with an individual in the United
States by phone and fax and induced that person to make two wire
transfers totaling approximately $280,000 to an account held by
CitiBank, N.A., in New York, New York. Ojeikere and his co-conspirators
allegedly induced the individual to make the wire transfers by promising
that the individual would receive, in return, 20% of the purported $17
The defendant filed pre-trial motions seeking the following relief:
"(1) immediate production of favorable and impeaching materials, such
that the defense may make reasonable investigative use of these
materials; (2) advance production of 18 U.S.C. § 3500 materials; (3)
disclosure of all 404(b) evidence; (4) disclosure of any and all
uncharged misconduct or bad acts, which prosecution may seek to
introduce; (5) disclosure [of] a list of names, identities and contact
information for every witness it interviewed or received information
from; (6) disclosure of the prosecution's witness list; (7) disclosure of
any and all `unindicted co-conspirators' whom the government may seek to
introduce statements of at trial pursuant to a hearsay exception; (8)
immediate production of all expert reports and interview memorandum; (9)
disclosure of all evidence the prosecution intends to use pursuant to
Fed.R.Crim.P. 12(d)(2); (10) a Bill of Particulars; and (11) disclosure
of the identity of all confidential informant(s)." At oral argument on
the motions, the defendant's counsel withdrew the requests, contained in
points one and two, for
early production of any, impeachment material and § 3500 material.
The defendant moves for the immediate disclosure of any evidence of
other crimes, wrongs, or acts that the Government might seek to introduce
pursuant to Federal Rule of Evidence 404(b). The defendant seeks
immediate disclosure so that he can make any appropriate motions in
limine to exclude such evidence.
Under Rule 404(b), the Government must 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" any evidence of other
crimes, wrongs, or acts that the Government intends to introduce at
trial. Fed.R.Evid. 404(b). Courts in this Circuit have routinely found
that at least ten business days provides reasonable notice to a defendant
under Rule 404(b). See, e.g., United States v. Heredia, No. 02 Cr. 1246,
2003 WL 21524008, at *10 (S.D.N.Y. July 3, 2003); United States v.
Silberstein, No. 02 Cr. 800, 2003 WL 21488024, at *7 (S.D.N.Y. June 27,
2003); United States v. Greyling, No. 00 Cr. 631, 2002 WL 424655, at *4
(S.D.N.Y. Mar. 18, 2002). The defendant has identified no special
circumstances, other than the time needed to prepare motions to preclude
such evidence, that would warrant earlier disclosure of any Rule 404(b)
evidence. Indeed, the Government has represented that if it decided
more than ten business days prior to trial to offer Rule 404(b) evidence,
it will notify the defense of that decision at that time.
Therefore, the Government shall disclose any Rule 404(b) evidence that
it intends to introduce at trial by March 29, 2004. Any motions in limine
to preclude such evidence shall be submitted by April 2, 2004. The
Government's responses to the motions shall be submitted by April 6,
The defendant requests immediate production of the names and addresses
of all witnesses that the Government plans to call at trial as well as of
any individuals interviewed by the Government that the Government does
not plan to call as witnesses.
A defendant is not automatically entitled as a matter of right or under
the Federal Rules of Criminal Procedure to a list of the names and
addresses of the Government's witnesses prior to trial. See United States
v. Bejasa, 904 F.2d 137, 139 (2d Cir. 1990). However, it is
well-established that district courts have the discretionary authority to
order pretrial disclosure of the identity of the Government's witnesses.
See United States v. Cannone, 528 F.2d 296, 300 (2d Cir. 1975);
Bejasa, 904 F.2d at 139. A defendant is entitled to disclosure of the
Government's witnesses only if he makes "a specific showing that
disclosure [is] both material to the preparation of his defense and
reasonable in light of the circumstances surrounding his case." Cannone,
528 F.2d at 301; see also Bejasa 904 F.2d at 139-40. "[A]n abstract,
conclusory claim" by a defendant that such disclosure is necessary is not
sufficient. Cannone, 528 F.2d at 301-02.
The defendant contends that he has made a specific showing of need for
disclosure of the names and addresses of the Government's witnesses prior
to trial, and that there is no threat posed to any witnesses through
exposure of their identities. He argues that he is charged with the
non-violent crime of wire fraud; that he is under home detention and has
not been found to pose a danger to the community; that the superseding
indictment alleges offenses over a "lengthy time period"; that the case
involves a "complex paper trail"; that he anticipates that the Government
will call numerous witnesses against him; and that some witnesses are
within the control of the Government and not available to the defense for
pre-trial interviews. These contentions are the type of "abstract,
conclusory claim[s]" that the Court of Appeals concluded were an
insufficient basis for requiring disclosure in Cannone. The
defendant thus has not made a specific showing why the disclosure
of the Government's witness list is material to his defense. Therefore,
the request for disclosure of the Government's witness list is denied.
For the same reasons, the defendant's request for disclosure of the
names and addresses of individuals interviewed by the Government, but
whom the Government does not intend to call as witnesses, is also
denied. The defendant's only support for this request is the conclusory
statement that he believes such persons possess facts favorable to him
and supportive of his potential defenses. Such abstract, conclusory
claims are not sufficient to warrant disclosure. Moreover, to the extent
the defendant contends that individuals interviewed by the Government
possess exculpatory information, the Government has represented that it is
currently unaware of any exculpatory evidence, but that it recognizes,
and will comply with, its obligation to make ongoing and timely
disclosure of exculpatory material pursuant to Brady v. Maryland,
373 U.S. 83 (1963). This representation is sufficient. See, e.g., United
States v. Szur, No. S5 97 Cr. 108, 1998 WL 132942, at *15 (S.D.N.Y. Mar.
20, 1998), aff'd, 289 F.3d 300 (2d Cir. 2002); United States v.
Velasquez, No. 96 Cr. 126, 1997 WL 414132, at *6 (S.D.N.Y. July 23,
1997); United States v. Aguirre-Parra, 763 F. Supp. 1208,
1216(S.D.N.Y. 1991); see also United States v. Viertel, No. S2 01 Cr.
571, 2002 WL 1560805, at *10 (S.D.N.Y. July 15, 2002).
The defendant also requests that the Government be directed to identify
all individuals whose statements the Government intends to introduce as
co-conspirator statements. The request is simply another way of seeking
disclosure of the Government's witness list, or a request that the
Government provide a bill of particulars identifying co-conspirators. For
the reasons explained in greater detail below, the defendant is not
entitled to that list. See Viertel, 2002 WL 1560805, at *12. The ...