The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
This case was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #6.
The defendant, Shawna Fish, is charged in a one-count indictment with unlawfully, willfully and knowingly making false material declarations to the grand jury about her knowledge that one of the targets of a grand jury investigation had corruptly influenced, or attempted to corruptly influence, the testimony of another witness before the grand jury, in violation of 18 U.S.C. § 1623. Dkt. #1.
The defendant has filed a motion seeking: (1) dismissal of the indictment or suppression of the transcript of the May 3, 2005 grand jury proceeding; (2) retention and preservation of all notes or other tangible evidence; (3) restriction of evidence relating to prior bad acts; (4) disclosure of Brady and Jencks materials; (5) disclosure of Rule 16 materials; and (6) disqualification of the Assistant United States Attorney, Anthony Bruce. Dkt. ##10 & 11. Defendant's motion for dismissal of the indictment or suppression of the transcript of the May 3, 2005 grand jury proceeding is addressed in a separate Report, Recommendation and Order. The remaining requests are addressed below.
Retention and Preservation of All Notes or other Tangible Evidence
Pursuant to Rule 16, the defendant seeks an order compelling all law enforcement agents and Assistant United States Attorneys involved in this case to retain and preserve their notes, reports and rough notes, and to preserve tangible evidence relating to the questioning of the defendant with respect to her grand jury testimony, including, but not limited to, any video, audio or documentary evidence concerning a meeting on or about December 6, 2004 at the Niagara County jail. Dkt. #10, ¶ 2.
The government responds that it "will retain and preserve all reports and tangible evidence relating to the government's questioning of the defendant." Dkt. #13, ¶ 6. The government also states that "[n]o notes exist." Dkt. #13, ¶ 6.
Notwithstanding the government's assurances, the express admonition of the Court of Appeals for the Second Circuit bears repeating in addressing this particular request of the defendant:
[W]e will look with an exceedingly jaundiced eye upon future efforts to justify non-production of a Rule 16 or Jencks Act "statement" by reference to "departmental policy" or "established practice" or anything of the like. There simply is no longer any excuse for official ignorance regarding the mandate of the law. Where, as here, destruction is deliberate, sanctions will normally follow, irrespective of the perpetrator's motivation, unless the government can bear the heavy burden of demonstrating that no prejudice resulted to the defendant. . . . We emphatically second the district court's observation that any resulting costs in the form of added shelf space will be more than counterbalanced both by gains in the fairness of trials and also by the shielding of sound prosecutions from unnecessary obstacles to a conviction. United States v. Buffalino, 576 F.2d 446, 449-50, (2d Cir.), cert. denied, 439 U.S. 928 (1978); see also United States v. Grammatikos, 633 F.2d 1013, 1019-20 (2d Cir. 1980); United States v. Miranda, 526 F.2d 1319 (2d Cir. 1975), cert. denied, 429 U.S. 821 (1976).
The government is hereby DIRECTED to maintain and preserve all materials that are known by the government to exist, that constitute potential Jencks material in this case.
The defendant seeks to restrict the government's introduction of evidence of prior bad acts, if any, pursuant to F.R.E. 404(b) and of other crimes or impeachment material, if any, pursuant to Rules 607, 608 and 609. Dkt. #10, ¶ 3. The government responds that it has no evidence that it will offer pursuant to F.R.E. 404(b), 607, 608 or 609. Dkt. #13, ¶ 8. ...