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United States v. Nguyen

April 12, 2007


The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge



This case was referred to the undersigned by Honorable John T. Elfvin on August 25, 2005, for all pre-trial matters. The matter is presently before the court on Defendant's omnibus motion seeking discovery and a bill of particulars (Doc. No. 14), filed December 12, 2005,*fn1 and the Government's motion seeking reciprocal discovery (Doc. No. 16).


Defendant Phuong Phyllis Nguyen ("Defendant" or "Nguyen"), a United States Citizen, was charged in a criminal complaint ("Complaint") (Doc. No. 1), dated April 21, 2005, with violating 31 U.S.C. §§ 5316(a)(1)(A) and 5332, and 18 U.S.C. § 1001, by knowingly, intentionally and unlawfully attempting to transport in excess of $10,000 into the United States from Canada without reporting such attempt and making false statements, based on an incident occurring at the Peace Bridge on April 20, 2005. Specifically, at 7:30 P.M., on April 20, 2005, Defendant, driving a rental vehicle owned by Hertz Corporation, attempted to cross from the United States into Canada at the Peace Bridge Port of Entry. Defendant, however, was refused entry into Canada and was directed to return over the Peace Bridge to the United States. Upon crossing back to the United States and entering the primary inspection area, Defendant was referred by United States Customs and Border Protection ("CBP") officers to the secondary inspection area for further examination.

During the secondary inspection, Defendant was issued and completed a United States Customs Form CF-6059B, customs declaration and currency reporting form ("the customs form") to complete, indicating that she was in possession of less than $10,000 United States currency. Defendant also told the CBP officer who issued the form that Defendant was in possession of $300. A search of Defendant's vehicle revealed $119,600 in United States currency under the vehicle's rear seat. After the currency was found in Defendant's vehicle, a CBP officer prepared to pat down Defendant and Defendant voluntarily removed a bundle of one hundred dollar bills from her waistband, but denied that any more currency was concealed on her person. The pat-down of Defendant revealed two additional bundles of one hundred dollar bills in Defendant's back waistband, along with currency in Defendant's jacket pocket. In total, $46,000 was concealed in Defendant's waistband and $489 in Defendant's jacket pockets. All together, $166,089 in United States currency was found in Defendant's vehicle, waistband and jacket pockets.

At 10:21 P.M. on April 20, 2005, Defendant was advised of her Miranda rights by a United States Immigration and Customs Enforcement ("ICE") Special Agent, and gave both oral and written statements indicating she understood her rights. Defendant then stated she was fully aware that she had more than $10,000 in her possession when she departed the United States for Canada, and that she intentionally made false statements to the CBP officers on the customs form.

On August 18, 2005, a two-count indictment ("the Indictment") (Doc. No. 19) was returned, charging Defendant with one count of knowingly, willfully and unlawfully transporting in excess of $10,000 in United States currently into the United States, in violation of 31 U.S.C. §§ 5316(a)(1), (b) and 5322 ("Count 1"), and knowingly, willfully and unlawfully concealing more than $10,000 in United States currency with the intent to evade a currency reporting requirement, in violation of 31 U.S.C. § 5332(a)(1) and (b)(1).

On December 12, 2005, Defendant filed the instant omnibus motion (Doc. No. 14) ("Defendant's Motion"), with the attached Affidavit of Herbert L. Greenman, Esq. ("Greenman Affidavit"), in support. On December 30, 2005, the Government filed the Government's Response to and in Opposition of the Defendant's Notice of Motion and Cross Notice of Motion for Disclosure (Doc. No. 16) ("Government's Response"). Oral argument on Defendant's Motion was initially scheduled for January 10, 2006, but, at Defendant's request, was adjourned several times. At oral argument, held on February 20, 2007, the undersigned reserved decision on the pending requests.

Based on the following, Defendant's motion for discovery is GRANTED in part, DENIED in part and DISMISSED in part; the Government's request for reciprocal discovery is GRANTED.


1. Brady Material

Defendant seeks "immediate" pretrial disclosure of exculpatory Brady material pursuant to Brady v. Maryland, 373 U.S. 83 (1963) (hereinafter "Brady"), and its progeny. Greenman Affidavit ¶¶ 6-14. The Government maintains that it has provided Defendant with any information that may be construed as Brady material, even though the Government is not obligated to provide such material prior to trial. Government's Response ¶¶ 24-25. The Government further acknowledges its continuing duty to provide Defendant with any further discovered excuplatory and impeachment materials. Id. ¶ 16.

Brady and its progeny require the prosecution provide the defense with any evidence favorable to the accused where the evidence is material to guilt or punishment. "Favorable evidence includes not only evidence that tends to exculpate the accused, but also evidence that is useful to impeach the credibility of a government witness." United States v. Coppa (In re United States), 267 F.3d 132, 139 (2d Cir. 2001) (citing Giglio v. United States, 405 U.S. 150, 154 (1972) (holding 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)). For example, the government's failure to reveal evidence of an understanding in return for testimony will violate ...

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