The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
This case was referred to the undersigned by the Hon. Richard J. Arcara on October 25, 2006 for all pretrial matters. (Doc. No. 50). The matter is presently before the court for determination of Defendants' non-dispositive pretrial motions.
On June 14, 2006, Defendant Adrian Wayne Yarborough ("Yarborough" or "Defendant Yarborough") and nine others, including co-defendants Bonnie L. Dhondt ("Dhondt" or "Defendant Dhondt"), Sherri Louise Moreland ("Moreland" or "Defendant Moreland"), D. Andre Turner ("Turner" or "Defendant Turner"), Kenneth L. Drake ("Drake" or "Defendant Drake"), Rocco Beardsley ("Beardsley" or "Defendant Beardsley"), Taylor Larson ("Larson" or "Defendant Larson"), Demond L. Allen ("Allen" or "Defendant Allen"), Candy McBride ("McBride" or "Defendant McBride") and Jennifer L. Ostrom ("Ostrom" or "Defendant Ostrom"), were charged in a 21 count indictment ("the Indictment") with violations of 21 U.S.C. §§ 841(a)(1), 846, 848(a), 853(a)(1), and 18 U.S.C. § 2. (Doc. No. 1).*fn2 All Defendants were charged in Count 1 of the Indictment with conspiracy to possess with intent to distribute, and to distribute, 50 grams or more of cocaine, in violation of 21 U.S.C §§ 841(a)(1) and 841(b)(1)(A), and 18 U.S.C. § 2. ("Count 1"). Defendant Yarborough is alone charged in Counts 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, and 20 with knowingly, intentionally and unlawfully possessing with intent to distribute, and distribute, various quantities of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B) and 18 U.S.C. § 2.
Additionally, Yarborough is charged in Count 21 of the Indictment with knowingly, willfully, intentionally and unlawfully engaging in a continuing criminal enterprise of which he allegedly organized, supervised, and managed, and from which he allegedly obtained substantial income and resources, in violation of 21 U.S.C. § 848(a)(1) and 846 ("Count 21" or "the CCE Count"). Counts 16 and 19 charge Yarborough and Dhondt with knowingly, intentionally and unlawfully possessing with intent to distribute and distribute a quantity of cocaine on March 13, 2006 ("Count 16") and on April 12, 2006 ("Count 19") in Jamestown, New York, in violation of 21 U.S.C. §§ 841(a)(1) and 18 U.S.C § 2. Count 22 requires Yarborough to forfeit any property or proceed derived from controlled substance violations charged in the Indictment, pursuant to 21 U.S.C. §§ 853(a)(1) and 853(p). ("Count 22"). Dhondt is subject to forfeiture if convicted under Counts 1, 16 and/or 19, pursuant to 21 U.S.C. §§ 853(a)(1) and 853(p). ("Count 23").
The following Defendants filed pre-trial motions: Drake on November 15, 2006 (Doc. No. 61) ("Stuermer Affidavit"); Beardsley on November 15, 2006 (Doc. No. 63) ("O'Rourke Affidavit"); Yarborough on November 21, 2006 (Doc. Nos. 66 & 67) ("Hurley Affidavit"); Moreland on November 22, 2006 (Doc. No. 69) ("Okay Affirmation"); Larson on November 28, 2006 (Doc. No. 70) ("Larson's Joinder Motion"); and Ostrom on December 6, 2006 (Doc. No. 71) ("Stachowski Affirmation") ("Moving Defendants"). The Government filed its consolidated response to Moving Defendants' pre-trial motions on December 29, 2006 (Doc. No. 75) ("Government Response").
Defendants' motions seek (i) discovery pursuant to Federal Rules of Evidence ("Fed.R.Evid.") 403, 404(b), 609, 702, 703 and 705; (ii) disclosure pursuant to Fed.R.Evid. 807; (iii) identification of informants and the nature of their testimony; (iv) production of Giglio material; (v) early disclosure of Jencks Act material; (vi) joinder in co-defendants' motions; (vii) leave to file additional motions; (viii) preservation of investigators' rough notes; (ix) the date, time and place of any identification of Defendants and the names of those persons then present; (x) disclosure of all intercepted communications; (xi) a review of personnel files of government agent witnesses; (xii) severance; (xiii) inspection of grand jury minutes for insufficiency of evidence; (xiv) disclosure of plea agreements; (xv) the identity of the Government's witnesses; (xvi) disclosure of the existence, duration and nature of electronic surveillance; (xvii) production of statements of non-testifying witnesses; (xviii) an extension of time to file a motion to suppress and an order directing the Government to identify all evidence to be used at trial; (xix) production of mental health records and evaluations of Government witnesses; (xx) disclosure of mail covers; (xxi) disclosure of Grand Jury testimony; (xxii) transcription of Grand Jury testimony; (xxiii) permission to inspect subpoenaed evidence which was presented to the Grand Jury; (xxiv) disclosure and redaction of coconspirator statements; (xxv) setting dates for disclosure of Jencks Act, and Fed.R.Evid. 404(b), 609 and 807 material; (xxvi) particularization of each count in the Indictment pursuant to Federal Rule of Criminal Procedure 7(f) ("Rule 7(f)"); and (xxviii) a pretrial hearing pursuant to Fed.R.Evid. 801(d)(2)(E).*fn3 (Doc. Nos. 61, 53, 63, 64, 66, 67, 69, 70, 71).*fn4
At oral argument, conducted January 11, 2007, the court ruled on several of Defendants' non-dispositive pre-trial motions. (Doc. No. 76). Specifically, the court DISMISSED as moot all Defendants' Rule 16 motions seeking discovery. Id. As the Government denied possessing any identification evidence pertaining to Yarborough which it intends to use at trial, the court DISMISSED, as moot, Yarborough's motion requesting notification of such evidence. Id.
Pursuant to the Government's representation that it does not possess any Brady material of which it is presently aware, the court DISMISSED as moot Defendants' request for such material. Id. The court DENIED all particularization requests, but reserved decision on Defendant Drake's request that the court order the Government to state the identity of the person to whom it alleges Drake distributed controlled substances. The court also permitted Drake to supplement his brief and the Government to respond. Id. As Defendants failed to identify any intercepted communications that Defendants believe are inaudible, the court DENIED Defendants' requests for an audibility hearing without prejudice to renew before the District Judge. Id. Finally, the court GRANTED, without opposition, the Government's request for reciprocal discoveryunder Fed.R.Crim.P. 16(b), and instructed Defendants to provide such discovery not later than 30 days prior to trial. Defendant Drake's motion to suppress wiretap evidence was taken under advisement and is addressed in a separate Report and Recommendation filed contemporaneously with this Decision and Order. The court reserved decision on Moving Defendants' remaining motions.
Based on the following, Moving Defendants' remaining motions are GRANTED in part, DENIED in part, and DISMISSED as moot in part.
1. Discovery Pursuant to Fed.R. Evid. 403, 404(b) and 609
Defendants Yarborough, Drake, Ostrom, Moreland and Beardsley seek information pursuant to Fed.R.Evid. 404(b) ("Rule 404(b)"). Stachowski Affidavit ¶ 48; Stuermer Affidavit ¶ 29; Okay Affirmation ¶ 25; O'Rourke Affirmation ¶ 32. Defendant Ostrom also seeks discovery of Fed.R.Evid. 403 and 609 ("Rule 609") material. Stachowski Affidavit ¶ 48. Finally, in addition to requesting information pursuant to Rule 404(b), Defendant Beardsley seeks discovery of Rule 609 material, O'Rourke Affirmation ¶ 33, and that the court establish a date for disclosure of discoverable material. O'Rourke Affidavit ¶¶ 24-25.*fn5
Rule 404(b) requires the Government to provide reasonable notice in advance of trial of the general nature of any evidence of other crimes, wrongs, and acts it intends to introduce at trial. Fed.R.Evid. 404(b). The Government contends it has notified Defendants of its intention to offer proof of these activities at trial, and represents it will provide specific Rule 404(b), 608 ("Rule 608") and Rule 609 material with its disclosure of Jencks Act material. Government Response at 7. Therefore, the court directs the Government to disclose all Rule 404(b), Rule 608, and Rule 609 evidence which it intends to offer against any Defendant no later than 90 days prior to trial in sufficient detail to permit defense counsel to prepare and file appropriate motions in limine on the issue of admissibility. To the extent provided above, Defendants' motions for disclosure of Rule 404(b) evidence are GRANTED.
As stated, Discussion, supra, at 7, Defendants Ostrom and Beardsley also request pretrial disclosure of Rule 608 and 609 material, i.e., any other evidence the Government intends to use to impeach the credibility of any Defendant who should testify at trial. As with Rule 404(b), the Government represents it will disclose Rule 608 and 609 information with its disclosure of Jencks Act material.
The Government is under no obligation to provide impeachment material pursuant to Rule 609 prior to trial unless it intends to introduce evidence of a conviction that is more than 10 years old at the time of trial. United States v. Livoti, 8 F.Supp.2d 246, 250 (S.D.N.Y. 1998); United States v. Song, 1995 WL 736872 , *7 (S.D.N.Y. 1995). In such case, Rule 609(b) directs that the government "give the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence." Rule 609(b). Further, before evidence of prior convictions may be admitted at trial, Rule 609(a)(1) directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant. Fed.R.Evid. 609(a)(1). "To perform this balancing, the court must know the precise nature of the defendant's testimony which is unknowable when . . . the defendant does not testify." Luce v. United States, 469 U.S. 38, 41 (1984). Accordingly, under Rule 609(a), whether a specific conviction is admissible for impeachment purposes is an evidentiary decision which must await trial and determination by the trial judge. United States v. Weichert, 783 F.2d 23, 25 (2d Cir.) (citing Luce, supra, at 41), cert. denied, 479 U.S. 831 (1986).
The permissibility of impeachment evidence proffered under Rule 608 is subject to the same balancing test as Rule 609 evidence. Weichert, supra, at 25. As such, any decision on whether either Rule 608 or 609 evidence is admissible must be submitted to the trial judge in this case. Weichert, supra, at 25 (citing Luce, supra, at 41). However, because the Government neither confirms nor denies its intent to introduce evidence of any Moving Defendant's conviction that is more than 10 years old at the time of trial, to the extent that the Government may decide to do so, Defendants' requests for disclosure of such Rule 609 evidence is GRANTED and the Government shall notify Defendants of such convictions and its intent to use them at trial no later than two weeks prior to the commencement of trial or any other date as the District Judge may direct.
2. Discovery Pursuant to Fed.R.Evid. 702, 703 and 705
Fed.R.Crim.P. 16(a)(1)(G) provides that, with regard to expert witnesses, At the defendant's request, the Government must give to the defendant a written summary of any testimony that the Government intends to use under Rules 702, 703 or 705 of the Federal Rules of Evidence during its case-in-chief at trial.
Similarly, Fed.R.Crim.P. 16(b)(1)(c)(i)(ii) directs that
The defendant must, at the Government's request, give to the government a written summary of any testimony that the defendant intends to use under Rules 702, 703 or 705 of the Federal Rules of Evidence as evidence at trial, if -(i) the defendant requests disclosure under subdivision (a)(1)(G) and the government complies . . .
In the instant case, Defendant Ostrom requests a list of the Government's expert witnesses, the substance of the expert witnesses' reports, and written summaries of the likely testimony of said witnesses.Stachowski Affidavit ¶ 49. The Government states it will comply with this request pursuant to Rule 16(a)(1)(G) regarding testifying witnesses under Fed.R.Evid. 702, 703 and 705. Government Response ¶ 5. Such information shall be provided at least 30 days prior to trial or any other date as the District Judge directs.
3. Disclosure Pursuant to Fed.R.Evid. 807
Defendant Drake seeks disclosure of statements the Government intends to offer pursuant to Fed.R.Evid. 807, the residual exception to the hearsay rule.*fn6 The Government states it will provide notice of its intention to use such evidence, if it intends to use such evidence, when it files its pretrial memorandum with the trial court. Government Response ¶ 25. Accordingly, Defendant's request for disclosure of statements which qualify for the residual exception to the hearsay rule is DISMISSED as moot.
4. Identification of Informants and the Nature of their Disclosure
Defendants Moreland, Ostrom and Drake seek the names and addresses of all informant witnesses the Government may introduce at trial. Okay Affirmation ¶ 21; Stachowski Affirmation ¶¶ 55-57; Stuermer Affidavit ¶¶ 15-26. Specifically, Defendants assert that disclosure is required to prepare an adequate defense by investigating the allegations, biases, and benefits they may receive from cooperating with the Government, Stachowski Affirmation ¶ 56, and to assess their credibility for cross-examination. Stuermer Affidavit ¶ 25. Alternatively, Defendant Ostrom requests an in camera review "to evaluate the competing interests in such disclosure." Id. ¶ 57. The Government opposes such disclosure, arguing that Moving Defendants have provided no basis for compliance with this request.
Substantial policy considerations override the need for full disclosure of informants' identities. Roviaro v. United States, 353 U.S. 53, 61 (1957) (holding that informer's privilege must yield to disclosure at trial if necessary to a "fair determination"). Disclosure of the identity of confidential informants may be withheld to protect the anonymity of informants and to secure the informants' continued cooperation in furnishing information regarding violations of law. Roviaro, 153 U.S. at 59; United States v. Fields, 113 F.3d 313, 324 (2d Cir.), cert. denied, 522 U.S. 976 (1997). It is equally permissible to withhold information from which such identity may be inferred and thus revealed. See Roviaro, supra, at 60.It is well settled that "an informant's identity need not be disclosed unless 'essential to the defense.'" United States v. Morales, 280 F.Supp.2d 262, 271 (S.D.N.Y. 2003) (quoting United States v. Russotti, 746 F.2d 945, 949 (1984) (quoting Scher v. United States, 305 U.S. 251, 254 (1938)).
In determining whether disclosure is essential, courts are required to balance the public's interest in obtaining information to assist law enforcement against the defendant's right to prepare a defense. Roviaro, supra, at 62; United States v. Jackson, 345 F.3d 59, 70 (2d Cir. 2003), cert. denied, 541 U.S. 956 (2004). A confidential informant's identity or the contents of an informant's communication must therefore be disclosed if such information is "relevant or helpful" to an accused's defense at trial, particularly in relation to a potential entrapment defense or a defendant's knowledge of the character of the contraband. Roviaro, supra, at 60-61, 64; DiBlasio v. Keane, 932 F.2d 1038, 1042 (2d Cir. 1991); see also United States v. Jackson, supra, at 69-70 (approving informant identity disclosure to facilitate entrapment defense to drug sale charge).Defendants bear the burden of establishing the need for such disclosure and a need for disclosure will be found only upon demonstrating that the absence of such disclosure will deprive the defendant of a fair trial. Fields, supra, at 324; United States v. Lilla, 699 F.2d 99, 105 (2d Cir. 1983).
In the instant case, Defendants do not demonstrate how any informant's identity is material to their potential defenses at trial, and have therefore failed to meet their burden under Roviaro to compel disclosure. Absent "a specific showing that disclosure was both material to the preparation of [the] defense and reasonable in light of the circumstances surrounding [the] case," the district court is not required to compel disclosure. United States v. Bejasa, 904 F.2d 137, 139-40 (2d Cir.), cert. denied, 498 U.S. 921 (1990). Accordingly, Moving Defendants' motion for disclosure of the identity of confidential informants as prospective Government witnesses are DENIED.
5. Production of Giglio and Jencks Act material
Defendants Yarborough, Ostrom and Moreland seek disclosure of all Giglio material, including the names, addresses and criminal records of all informants upon whose information the Government relied in investigating this case. Hurley Affidavit ¶ 13; Stachowski Affidavit ¶¶ 58-69; Okay Affirmation ¶ 33. Additionally, Defendants Drake, Ostrom and Moreland request disclosure of information pursuant to the Jencks Act, which includes statements and reports of potential Government witnesses at trial. Stuermer Affidavit § 49; Stachowski Affirmation ¶¶ 58-69; Okay Affirmation ¶¶ 42-43.
The defense is entitled to pertinent evidence regarding a material witness's credibility or reliability, including evidence of any agreement or promises of leniency between the government and a government witness. Giglio v. United States, 405 U.S. 150, 154 (1972). Failure of the government to reveal evidence of an understanding in return for testimony will violate due process. United States v. Pfingst, 477 F.2d 177 (2d Cir.), cert. denied, 412 U.S. 941 (1973); United States v. Feola, 651 F.Supp. 1068, 1135 (S.D.N.Y. 1987), aff'd., 875 F.2d 857 (2d Cir. 1989), cert. denied, 493 U.S. 834 (1989). In this case, the Government has recognized its ongoing duty to provide any exculpatory or mitigating evidence in its possession to Defendants, including any information that would impeach a government witness. Government Response ¶ 14. Specifically, the Government agrees to provide the following impeachment material promises of leniency or immunity agreements with government ...