United States District Court, S.D. New York
April 21, 2005.
UNITED STATES OF AMERICA,
ROBERT UNDERWOOD, Defendant.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Defendant Rob Underwood ("Underwood") has moved both for the
immediate disclosure of Brady and Giglio materials and for
the identification of any and all persons named in forty New York
Property Clerk's Invoices turned over to defense counsel during
discovery. The government has opposed Underwood's motion, which
is granted in part and denied in part for the reasons set forth
A grand jury returned the indictment in this action on May 6,
2004, charging Underwood and nineteen co-defendants with
conspiring to distribute and to possess with intent to distribute
at least one kilogram of heroin from 1999 up to and including May
2004, in violation of 21 U.S.C. § 846. Underwood, along with his co-defendants and others, is alleged
to have been a member of a criminal organization in the Bronx
that controlled a three-block strip of Daly Avenue between East
179th Street and Bronx Park South (the "Daly Avenue Organization"
or the "Organization") from at least 1999 through May 2004.
According to the indictment, the Organization sold heroin all day
and late into the night during the period identified in the
indictment, conducting tens of thousands of hand-to-hand heroin
transactions. The Organization is alleged to have sold individual
"glassine" bags of heroin, typically stamped with so-called brand
names such as "Sean John" and "J. Lo."
According to the indictment, some members of the Daly Avenue
Organization acted as "managers," who both sold heroin directly
to retail customers and also provided heroin on consignment to
"workers" or "pitchers" in the Organization. Workers and pitchers
would then sell the heroin to customers, paying the managers for
the heroin as they were able to sell it. Workers and pitchers in
the Organization also acted as "steerers" according to the
indictment, directing customers on Daly Avenue to other workers
or to managers to complete sales of heroin.
Underwood and his co-defendants are alleged to have committed a
number of overt acts in furtherance of the conspiracy, including
the sale by Underwood of heroin in the vicinity of Daly Avenue in
the Bronx on December 18, 2003. Underwood, along with many of his co-defendants, was arrested
on May 11, 2004. He filed the instant motion on April 8, 2005,
and oral argument was heard on April 13, 2005.
Immediate Disclosure of Brady Material Is Not Required
Underwood seeks the immediate disclosure of exculpatory
evidence or material pursuant to Brady v. Maryland, 373 U.S. 83
(1963). Brady and its progeny do not require the immediate
disclosure of all exculpatory material upon a defendant's
request. Rather, as the Court of Appeals for this Circuit has
stated, the government's obligation is to disclose Brady
material in sufficient time for the defense to make effective use
of it at trial. See United States v. Coppa, 267 F.3d 132, 144
(2d Cir. 2001).
The government has made a good faith representation to the
Court and to defense counsel that it recognizes its disclosure
obligations under Brady, that currently no Brady material
exists, and that it will comply with its Brady obligations in a
timely manner should this material become available. The courts
of this Circuit repeatedly have denied pretrial requests for
discovery orders pursuant to Brady where the government has
made such good faith representations. See, e.g., United
States v. Rueb, No. 00 Cr. 91 (RWS), 2001 WL 96177, at *6 (S.D.N.Y. Feb. 5, 2001);
United States v. Perez, 940 F. Supp. 540, 553 (S.D.N.Y. 1996);
United States v. Schwimmer, 649 F. Supp. 544, 549 (E.D.N.Y.
1986). Underwood has suggested no reason to believe that the
government will not comply with its obligations under Brady;
accordingly, the Court accepts the government's representation
and therefore no discovery order pursuant to Brady is necessary
at this time.
Giglio Material Must Be Disclosed Two Business Days Before
Underwood also seeks the immediate disclosure of Giglio
material, i.e., Brady material of an impeachment nature.
See Giglio v. United States, 405 U.S. 150 (1972). See
generally United States v. Bagley, 473 U.S. 667, 676 (1985)
(noting that impeachment evidence "falls within the Brady
rule"). "In the Second Circuit, Giglio materials, like Brady
materials, must be disclosed `in time for [their] effective use
at trial.'" United States v. Giffen, No. 03 Cr. 404 (WHP), 2004
WL 1475499, at *8 (S.D.N.Y. July 2, 2004) (quoting Coppa,
267 F.3d at 142); see also United States v. Canter,
338 F. Supp. 2d 460, 462 (S.D.N.Y. 2004). The immediate disclosure of
Giglio materials merely upon a defendant's request is not
required. See Coppa, 267 F.3d at 140. The government has
represented to the Court and to defense counsel that it intends
to follow the widely accepted practice in this district of
producing impeachment material when it provides prior statements
of a witness pursuant to 18 U.S.C. § 3500, that is, the Friday
before the trial is scheduled to begin, or further in advance of a witness's
testimony if additional time is reasonably required to review the
material. See, e.g., Canter, 338 F. Supp. 2d at 462 (noting
that "[i]t has been the practice of this Court and of other
courts in this district to require that the Government produce
[impeachment] materials a few days before the start of trial,
usually on the Friday before a trial scheduled to start on a
Monday") (citing United States v. Santiago, 174 F. Supp. 2d 16,
40-41 (S.D.N.Y. 2001); Perez, 940 F. Supp. at 553).
The Second Circuit held in Coppa that Brady and Giglio
material must be disclosed to defense in "sufficient time" for
defense to make "effective use" of the disclosed material.
Coppa at 144. The Court further elaborates that "the time
required for the effective use of a particular item of evidence
will depend on the materiality of that evidence . . . as well as
the particular circumstances of the case." Id. at 146. In
addition, the Court defers to "a trial judge's discretion to
order pretrial disclosures as a matter of sound case management."
While the government proposes that disclosure of Giglio
material by 5 p.m. on the Friday immediately preceding a Monday
morning trial date allows ample opportunity for defense to make
effective use of the impeachment material, "[c]learly,
information obtained on the eve of trial . . . is less effective
to an advocate than information obtained earlier." United States
v. Snell, 899 F. Supp. 17, 20 (D. Mass. 1995). See, e.g. United States v.
Deutsch, 373 F. Supp. 289, 290 (S.D.N.Y. 1974) ("It should be
obvious to anyone involved with criminal trials that exculpatory
information may come too late if it is only given at trial, and
that the effective implementation of Brady v. Maryland must
therefore require earlier production in at least some
situations."). Exculpatory material, which includes Giglio
impeachment information under the Bagley standard, influences
every aspect of a defendant's case, including:
defense investigation, how it will allocate its
resources, the voir dire questions the defense will
seek, the framing of opening statements, the nature
of pretrial research on evidentiary issues and jury
instructions, in short, all of the strategic
decisions which must be made long in advance of
Snell at 20. See United States v. Washington,
294 F. Supp. 2d 246, 250 (D. Conn. Dec. 15, 2003) (holding that defense
counsel's inability to investigate the circumstances of a prior
criminal conviction of government's key witness and counsel's
consequent inability to incorporate the fruits of such
investigation into defendant's trial strategy resulted in
prejudice as defense counsel was not able to fully or effectively
exploit the impeachment material). See also United States v.
Aparo, 221 F. Supp. 2d 359 (E.D.N.Y. June 17, 2002) (directing
the government to disclose all exculpatory and impeachment
material four weeks prior to trial to allow sufficient time for
defendants to make necessary in limine motions, for government to respond to such motions and for court
to decide them in a manner promoting sound case management).
The case currently before the Court is a multi-defendant
narcotics case, charging a conspiracy to distribute heroin over a
five year period. Underwood is alleged to have committed a single
overt act, the sale of heroin on a single day, and defense
counsel asserts that "no or few" audiotapes or videotapes connect
Underwood to the charged conspiracy, an assertion which goes
unrebutted by the government. Underwood and several of his
co-defendants face trial jointly, and as trial nears the
government concedes that there is a possibility that cooperating
witnesses may testify. Should such cooperators testify,
impeachment information with respect to these government
witnesses may prove substantially influential in determining
defendant's trial strategy.
Defense counsel must be given sufficient time to investigate
and make effective use of such exculpatory information. See
United States v. Lino, 2001 WL 8356 (S.D.N.Y. 2000) (noting
that the prominent role of government's main cooperating witness
in prosecution highlighted the importance of impeachment material
and thus warranted early disclosure of Giglio material). As
defense counsel cannot be expected to investigate impeachment
material effectively and thoroughly if given only the Saturday
and Sunday before trial begins (which is the result if the
government is permitted to disclose Giglio material by 5 p.m.
on the Friday before trial starts), additional time will be granted. Therefore,
the government will disclose all Giglio material two business
days before the commencement of this trial (i.e., no later than
the close of business on the Wednesday prior to the Monday on
which trial is scheduled to begin).
Disclosure of Identities of Defendants Implicated In Property
Clerk's Invoices Is Not Necessary At This Time
Underwood acknowledges that the government has disclosed in
discovery approximately 40 New York Property Clerk's Invoices
reflecting undercover drug purchases. However, these invoices do
not include the specific identities of the defendants allegedly
involved in each of these recorded transactions. Instead, only
the date and time of the alleged transactions are reflected in
the invoices, and thus only this limited information has been
made available to the defendants, including Underwood.
Underwood argues that the Court should order immediate
disclosure of the identities of the defendants implicated in
these invoices, asserting that the absence of such information
infringes on his ability to develop an alibi defense. However,
Underwood can assemble an alibi defense with the information
already revealed in the invoices, namely the times and dates of
the alleged transactions. Underwood does not need to know the
specific identities of the individuals implicated by the invoices
in order to ascertain whether he was present or involved in those
particular narcotics sales. Accordingly, immediate disclosure of the identities of
those persons implicated by the invoices is denied.
For the reasons set forth above, Underwood's motion is denied
in part and granted in part.
It is so ordered.
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