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U.S. v. OJEIKERE

January 17, 2004.

UNITED STATES OF AMERICA -against- DANIEL A. OJEIKERE, Defendant


The opinion of the court was delivered by: JOHN KOELTL, District Judge

OPINION and ORDER

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 Page 2 allegedly induced the individual to make the wire transfers by promising that the individual would receive, in return, 20% of the purported $17 million inheritance.

  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 Page 3 early production of any, impeachment material and § 3500 material.

  I.

  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) Page 4 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, 2004.

  II.

  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); Page 5 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 Page 6 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, Page 7 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 ...


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