United States District Court, S.D. New York
August 12, 2005.
UNITED STATES OF AMERICA
FERNANDO BOSCH et al. Defendants.
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
Two defendants in this multi-defendant drug conspiracy case
have filed pre-trial motions. Defendant Fernando Bosch ("Bosch")
seeks a severance of his trial from that of other defendants
pursuant to Fed.R.Crim.P. 14. Defendant Omar Garcia ("Garcia")
seeks to suppress a statement he made to a law enforcement
officer upon to his arrest, allegedly due to the violation of his
Miranda rights by the officer. Garcia also seeks early
production of various types of evidence, including evidence that
the Government is required to disclose under the authority of
Brady v. Maryland, 373 U.S. 83 (1963); United States v.
Agurs, 427 U.S. 97 (1976); Giglio v. United States,
405 U.S. 150 (1972); material required to be disclosed under
18 U.S.C. § 3500; material that may be introduced under Fed.R. Evid. 404(b),
607, 608, & 609; and a summary of expert testimony that the
Government may seek to introduce at trial. Garcia further asks
for a bill of particulars pursuant to Fed.R.Crim.P. 7(f), and an order requiring all law enforcement
officers who participated in the investigation of Garcia to
preserve all "rough notes" taken as part of their investigation.
Garcia and Bosch each asks to join in the other's motions.
For the reasons discussed below, the Court grants Garcia's
motion for an order directing the relevant law enforcement
officers to preserve investigators' rough notes. The Court will
exercise its discretion to schedule an evidentiary hearing on
Garcia's suppression motion before ruling on that request. It
denies Bosch's motion and all of Garcia's other motions.
I. BOSCH'S MOTION
Bosch's severance motion argues that a joint trial of Bosch
with other defendants in this action would be prejudicial on the
grounds that it would result in the admission of several
post-arrest statements by co-defendants that also inculpate
Bosch. Bosch claims that ordering a joint trial of Bosch with
those co-defendants, who presumably would exercise their Fifth
Amendment right to remain silent at the trial but whose
post-arrest statements could be admitted against them, would
violate Bosch's rights under the Confrontation Clause of the
The Court denies Bosch's motion, finding that there is no reason why a combination of redactions from his co-defendants'
inculpatory statements and limiting instructions would not
adequately preserve Bosch's constitutional rights at a joint
trial in this matter. As the Supreme Court stated in Zafiro v.
United States, 506 U.S. 534, 537 (1993), "[t]here is a
preference in the federal system for joint trials of defendants
who are indicted together." The arguments in favor of a joint
trial are especially compelling where, as here, the crime charged
involves a criminal conspiracy. See United States v. Upton,
856 F. Supp. 727, 733 (E.D.N.Y. 1994) ("It is well settled that
the good-faith inclusion of a conspiracy count establishes the
requisite common scheme or plan and is sufficient to support
joinder of defendants under Rule 8(b).") (citing United States
v. Uccio, 917 F.2d 80, 87 (2d Cir. 1990); United States v.
Aiken, 373 F.2d 294, 299-300 (2d Cir.), cert. denied,
389 U.S. 833 (1967)).
Bosch has given no reason why the presumption in favor of a
joint trial should be overcome here. As the Second Circuit
explained in United States v. Sanin, 252 F.3d 79, 85 (2d Cir.
2001), "statements that are properly redacted to protect the
defendant's Sixth Amendment rights" may be introduced in a joint
trial where proper limiting instructions are given. Bosch has
failed to explain why proper redactions of his co-defendants'
statements, combined with sufficient limiting instructions, would not adequately protect his Sixth Amendment
rights at trial. Nor could the Court identify any aspects of the
statements at issue that would prevent them from being redacted
in a manner that would safeguard the defendants' rights at a
joint trial. Consequently, the Court denies Bosch's severance
II. GARCIA'S MOTIONS
The Court turns next to Garcia's motions. The Court will
exercise its discretion to hold an evidentiary hearing on
Garcia's motion for suppression of his post-arrest statement. The
circumstances surrounding Garcia's post-arrest statement, and the
posture of the motion for suppression, are very similar to one
which faced the Court in an earlier case, United States v.
Santiago, 174 F. Supp. 2d 16 (S.D.N.Y. 2001). In that case, the
Court elected to hold an evidentiary hearing to determine whether
a defendant had been "duped" by a Government agent into making
inculpatory statements, where neither the defendant nor the
Government had submitted any sworn affidavits or other testimony
concerning the post-arrest statement. The Court sees no reason to
depart from that prior precedent in this case. See id. at
26-27 (explaining the Court's rationale for holding a hearing).
The Court warns Garcia, however, that he will be unlikely to
prevail if the Government's testimony at the hearing is
consistent with the arresting officer's report indicating that the officer merely
answered a question concerning the crime he was suspected of
committing, which in turn led to an unprovoked inculpatory
statement. See United States v. Guido, 704 F.2d 675, 677-78
(2d Cir. 1983) (upholding admission of inculpatory statement made
after the arresting officer merely answered defendant's questions
concerning "the crime he was suspected of committing").
The Court will also order preservation of rough notes of all
law enforcement officers who participated in the investigation of
the conspiracy. The Government asserts that it has no obligation
to preserve notes that have been incorporated into formal
reports. The Government is correct that the destruction of rough
notes incorporated into formal reports cannot be grounds for
reversal of a conviction, see United States v. Barlin,
686 F.2d 81, 92 (2d Cir. 1982) ("[A]ppellants do not question that
the notes were made part of the agent's formal report. That being
the case, the notes need not have been preserved and their
destruction violated no Jencks Act right."). Garcia, however, may
be entitled to production of at least a portion of the notes at
trial if they were still in existence at the time of trial and
were discoverable under the provisions of the Jencks Act, see
18 U.S.C. § 3500(e)(2) (defining potentially discoverable "statement" as including "a stenographic, mechanical, electrical,
or other record, or a transcription thereof, which is a
substantially verbatim recital of an oral statement made by said
witness and recorded contemporaneously with the making of such
oral statement"), or under the Fifth or Sixth Amendments.
The Court concludes that an order requiring preservation of
rough notes taken as part of the investigation of the defendants
in existence at the time of this order, or created afterwards, is
warranted in this case. In similar circumstances, courts in this
Circuit have ordered preservation of such notes upon a
defendant's pre-trial motion, or have noted that the Government
has consented to preserving all notes in existence at the time of
the order. See, e.g., United States v. Urso,
369 F. Supp. 2d 254, 274 (E.D.N.Y. 2005) (ordering preservation of notes even
though Government had promised to preserve notes); United States
v. Santoro, No. 03 Cr. 484, 2004 WL 2346621, at *3 (S.D.N.Y.
Oct. 19, 2004) (dismissing motion compelling preservation of
notes as moot where Government promised to preserve notes).
Moreover, it is unclear whether the notes that Garcia seeks to
preserve, to the extent they still exist, have actually been
incorporated into formal reports. The Court will therefore order
preservation of rough investigative notes so that those notes may be reviewed and, if appropriate, disclosed, at a later
Garcia's remaining motions require only brief mention. Garcia's
request for witness statements, Giglio material, material that
the Government may seek to introduce under Fed.R. Evid. material
that may be introduced under Fed.R. Evid. 404(b), and Section
3500 material, is premature for the reasons stated by the Court
in United States v. Dames, ___ F. Supp. 2d ___, 2005 WL
1812948, at *2 (S.D.N.Y. Aug. 2, 2005). The Government has
committed to providing Giglio and Section 3500 material on the
Friday before the Government witness is scheduled to testify, or
earlier if more time is necessary to review that material. This
schedule is consistent with accepted practice in this District
and appears reasonable under the circumstances of the case. The
Government has reaffirmed its continuing obligation to supply
Brady material to all defendants, and has further committed to
providing timely disclosure of expert and material admissible
under Fed.R. Evid. 404(b) prior to trial, which is not scheduled
to begin for more than three months. Garcia fails to provide any
support for his contention that the Government should be required
to turn over material that may be admissible under Fed.R. Evid.
607, 608, & 609 in advance of trial.
Garcia is not entitled to a bill of particulars. As the Court stated in Dames, a bill of particulars "is required `only
where the charges of the indictment are so general that they do
not advise the defendant of the specific acts of which he is
accused.'" Id., at *3 (quoting United States v. Walsh,
194 F.3d 37, 47 (2d Cir. 1999)). The Court, upon review of the
indictment, concludes that it adequately advises Garcia (and
Bosch, to the extent he may be deemed to have joined in Garcia's
motion), of the specific acts of which the alleged
co-conspirators are accused. Garcia and Bosch are specifically
alleged to have had a telephone conversation on September 9,
2004, in which Garcia asked Bosch to bring him heroin. Bosch is
also accused of several other overt acts in connection with the
conspiracy. The indictment's description of these overt acts, in
combination with language tracking the statutes that Garcia and
Bosch allegedly conspired to violate, are sufficiently clear and
comprehensive that no further elaboration is required.
For the reasons stated above, it is hereby
ORDERED that the motion of defendant Fernando Bosch for a
severance pursuant to Fed.R.Crim.P. 14 is DENIED; and it is
ORDERED that defendant Omar Garcia ("Garcia") and the
Government are ordered to appear for an evidentiary hearing on Garcia's motion to suppress his post-arrest statement on October
13, 2005 at 2:00 p.m.; and it is further
ORDERED that the Government shall preserve all rough notes of
law enforcement officers who participated in the investigation of
the conspiracy charged in the instant case which are in existence
as of the date of this order, or which are created after the date
of this order, until such time as the Court determines some or
all of these materials are discoverable; and it is further
ORDERED that Garcia's motion for a bill of particulars is
DENIED; and it is finally
ORDERED that Garcia's remaining pretrial motions are DENIED,
without prejudice to their renewal at trial.
© 1992-2005 VersusLaw Inc.