United States District Court, S.D. New York
November 9, 2005.
UNITED STATES OF AMERICA,
FREDERICK JACKSON and CLEON ROWE, Defendants.
The opinion of the court was delivered by: LAWRENCE MCKENNA, District Judge
MEMORANDUM AND ORDER
The following pending pretrial motions are disposed of as
Defendant Jackson's motion for an order requiring the
government to make known to him the identities of the callers who
made the 911 calls described by defendant (see Celedonio Letter
Br., Oct. 31, 2005, at 2-3 [numbering calls as 1-11]) is granted
as to calls 3 and 5. Those callers may have "material evidence
favorable to the defense," Leka v. Portuondo, 257 F.3d 89
(2d Cir. 2001), for substantially the same reasons given in the
Court's Memorandum and Order of August 27, 2003 (in which the
government was directed to allow defendant Jackson and defendant
Rasheem Jordan to listen to the tapes of the same calls). The
Court concludes that the identities of the callers on the two
tapes (if and when the government learns of such identities) are
required to be disclosed under Brady v. Maryland, 373 U.S. 83
(1963), and its progeny. Brady (unless the 911 calls are offered in evidence or the
callers are called as witnesses by the government) is the only
valid basis for the disclosure to defendant of the identities of
the callers. No showing has been made that any of the other 911
callers may have evidence favorable to the defense, and the
motion is denied as to the calls other than 3 and 5.
Defendant Jackson's motion to preclude the government's
ballistics evidence described in defense counsel's letter on that
subject (Celedonio Letter Br., Oct. 31, 2005), or for a hearing
on its admissibility, is denied. No reason has been advanced why
the evidence should not be admitted, or a hearing to determine
The Court understands that the issues raised by defendant
Jackson's application for the production of material pursuant to
Giglio v. United States, 405 U.S. 150 (1972), and
18 U.S.C. § 3500 with respect to the government's ballistics expert have been
resolved at the conference held on November 8, 2005.
The government's motion to quash defendant Jackson's subpoena
to the Metropolitan Correction Center (to the extent not rendered
moot by the government's agreements on the record at the
conference held on November 8, 2005) is granted. The materials
sought have not been shown, as they must be under Fed.R. Cr. P. 17, to be relevant and admissible. See United States v.
Nixon, 418 U.S. 683, 700 (1974).
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