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U.S. v. DAMES

August 2, 2005.

UNITED STATES OF AMERICA,
v.
NATHANIEL DAMES, Defendant.



The opinion of the court was delivered by: VICTOR MARRERO, District Judge

DECISION AND ORDER

Defendant Nathaniel Dames ("Dames") is charged in a two-count indictment with (1) causing the intentional killing of David Harris ("Harris") while Dames was engaged in a conspiracy to distribute and possess with intent to distribute cocaine base and cocaine, in violation of Section 848 (e) (1) (A) of Title 21 of the United States Code; and (2) the intentional killing of Harris with a firearm in relation to and in furtherance of a conspiracy to distribute cocaine base and cocaine, in violation of Section 924(j)*fn1 of Title 18 of the United States Code. (Indictment 04 Cr. 1247, dated November 23, 2004 ("Indictment"), at 1-2.) Dames filed a motion for omnibus pretrial relief, each request of which the Court considers below.

I. BACKGROUND

  Dames is alleged to have intentionally caused the killing of Harris with a firearm on or around April 4, 1995 while engaged in a drug conspiracy. The indictment alleges that an identifying witness ("Identifying Witness") viewed this event. On August 12, 2004, the Identifying Witness was presented with a photographic array of six potential suspects. (Admonision, dated August 12, 2004 ("Admonision"), attached to Gov't Mem.) The instructions written on the Admonision provide:
You will be asked to look at a group of photographs. The fact that the photos are shown to you should not influence your judgment in any way. You should not conclude nor guess that the photographs contain the picture of the person who committed the crime. You do not have to identify anyone. It is just as important to free innocent persons from suspicion as to identify guilty parties. . . . Please do not indicate to other witnesses that you have or have not made an identification.
(Admonision.) The Identifying Witness identified the photo of Dames as that of the culprit of the alleged crime. Following the identification, Dames was indicted on two counts by a federal grand jury in the Southern District of New York.

  The Government disclosed in discovery the existence of at least three firearms that it intends to offer at trial. The first is a 9mm handgun which allegedly has been identified as the weapon used to shoot and kill Harris. The second is a revolver allegedly removed from Harris's person after his murder. It is the Government's contention that this revolver was used by Harris to shoot Dames several weeks before Harris's murder. The third is a MAK-90 firearm which was discovered in an apartment on 124th Street in Manhattan. The Government claims that the apartment was used by Dames and others in connection with the alleged drug conspiracy.

  Dames moved on May 5, 2005 for (1) discovery of evidence pursuant to Federal Rule of Criminal Procedure 16 ("Rule 16"), as well as material under Brady v. Maryland, 373 U.S. 83 (1963), United States v. Giglio, 405 U.S. 150 (1972), and the Jencks Act, 18 U.S.C. § 3500; (2) a bill of particulars; (3) the preclusion of the firearms from being admitted into evidence; (4) a hearing to suppress identification testimony; and (5) the exclusion of evidence of Dames's "other crimes" and bad acts. The Government opposed all of Dames's motions.

  II. DISCUSSION

  A. DISCOVERY REQUESTS

  Dames's motion for discovery pursuant to Giglio relating to the Government's witnesses is entirely premature. (Memorandum of Law in Support of Defendant Nathaniel Dames's Motion for Omnibus Pre-trial Relief, dated May 5, 2005 ("Def. Mem."), at 4-6.) The Government is under no obligation at the present time to disclose Giglio material, as the Government's obligation to do so arises only with the pendency of trial and knowledge of the specific testifying witnesses. See United States v. Coppa, 267 F.3d 132, 144 (2d Cir. 2001); United States v. Jacques Dessange, Inc., No. 99 Cr. 1182, 2000 WL 280050, at *9 (S.D.N.Y. 2000) ("Giglio material is customarily produced in this District with Section 3500 material in recognition of the fact that this type of Brady material does not ordinarily require any independent investigation in order to use it effectively at trial."); United States v. Frank, 11 F. Supp. 2d 322, 325 (S.D.N.Y. 1998) (noting that courts have approved the disclosure of Giglio material as late as the day that the witness testifies). The Government has indicated that it will disclose all relevant Giglio material at least one week before the trial in this matter, which Dames has failed to show would not be "in time for its effective use" at trial. Coppa, 267 F.3d at 144. Since Dames has made no special showing that demonstrates prejudice suffered in not having immediate access to the material, the Court is not persuaded that a sufficient basis exists at this point to grant Dames's motion.

  Dames has also requested discovery of materials pursuant to Brady. The Government's obligation under Brady is "to disclose favorable evidence to the accused where such evidence is `material' either to guilt or punishment." Coppa, 267 F.3d at 139. The Government has indicated that it is not aware of the existence of any Brady material as to Dames, and acknowledges its continuing obligation to disclose any such material. Dames's motion as to this discovery request is, therefore, denied. Should Dames become aware of any failure on the Government's part to comply with its Brady obligations, he may renew his motion at that time.

  In addition, Dames requested a list of the Government's witnesses and any statements made by those witnesses. The Court is precluded from ordering the pretrial disclosure of witness statements. See Coppa, 267 F.3d at 145. As to Dames's request for a list of the Government's witnesses, the Court finds that Dames has failed to establish a "particularized showing of need" for such information at this time. See United States v. Pastor, 419 F. Supp. 1318, 1330 (S.D.N.Y. 1976). The Court, therefore, denies Dames's request at this stage.

  To the extent the Government may not have as yet fully complied with its discovery obligations under Rule 16, which includes the disclosure of material such as Dames's prior criminal record, results of any examinations or tests, and access to documents and objects, Dames's request as to these materials is granted. Fed.R.Crim.P. 16. As discussed below in section II.E, requests for information regarding any "bad acts" to be presented by the Government in connection with this case are premature.

  B. BILL OF ...


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