The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
Defendant Nathaniel Dames ("Dames") is charged with the killing of David Harris in furtherance of a conspiracy to distribute narcotics in violation of 21 U.S.C. § 848(e)(1)(A) and § 18 U.S.C. 924(j). Dames now moves to preclude the testimony of Denise Hughes ("Hughes") from his trial based on alleged violations of the Jencks Act, 18 U.S.C. § 3500, and Brady v. Maryland, 373 U.S. 83 (1963). Dames also moves in limine to preclude the Government from introducing a firearm found on the body of David Harris, Dames's alleged victim, after his death, and a firearm seized from an apartment allegedly used by Dames. The Government in turn moves in limine to introduce evidence of prior arrests of Dames and his alleged co-conspirators, to preclude Dames from introducing evidence of any dismissal or acquittal of the charges stemming from those arrests, and to introduce various testimony under Federal Rules of Evidence 804(b)(3) and 801(d)(2)(E).
DEFENDANT'S MOTION TO PRECLUDE HUGHES'S TESTIMONY
Hughes, now deceased, was deposed by the parties to preserve her testimony on September 23, 2005 and October 6, 2005. Prior to the deposition, the Defendant requested that the Government produce notes taken by Detective Stefano Braccini ("Det. Braccini") during an interview of Hughes conducted on August 12, 2004 (the "August 12 Notes"). The Government asserted that it had no such notes in its possession, and the deposition was conducted without such notes being produced. On March 21, 2007, the Government, having located the August 12 Notes, produced them to Defendant, who then brought this motion. On March 30, 2007, the Government also produced additional notes taken by Det. Braccini during an interview with Hughes conducted on August 26, 2004 (the "August 26 Notes"). On April 4, 2007, the Court ordered the Government to "submit all contemporaneous notes and official reports regarding New York Police Department interviews of Denise Hughes for in camera review." United States v. Dames, 04 Cr. 1247 (S.D.N.Y. April 4, 2007).
The Jencks Act requires that the Government must produce any prior statements in its possession that were made by a Government witness and concern the subject matter of the witness's direct testimony. 18 U.S.C. § 3500(b). If the Government fails to carry out its obligations under the Jencks Act, the witness's testimony may be excluded under 18 U.S.C. § 3500(d). A statement under the Jencks Act may be a written statement "signed or otherwise adopted and approved by [the witness]" or a contemporaneous "substantially verbatim recital of an oral statement made by said witness." 18 U.S.C. 3500(e). A witness's statement is similarly defined by the Federal Rules of Criminal Procedure as, inter alia "a written statement that the witness makes and signs, or otherwise adopts and approves" or "a substantially verbatim, contemporaneously recorded recital of the witness's oral statement.." Fed. R. Crim. P. 26.2(f).
Neither set of notes were made or signed by Hughes, nor has Dames presented any evidence that she "adopted or approved" them. Indeed, Hughes's testimony on cross-examination clearly implies that she never saw the notes or had them read to her. Deposition of Denise Hughes, September 23, 2005, 119-120; see Goldberg v. United States, 425 U.S. 94, 111 (1976)(the requirement that the notes be adopted or approved "clearly is not met when the lawyer does not read back, or the witness does not read, what the lawyer has written"). The sole basis for production of the notes is therefore that they were substantially verbatim recitals of the interviews with Hughes.
In Palermo v. United States, 360 U.S. 343 (1959), the Supreme Court held that statements which "contain the agent's interpretations or impressions," "evidence substantial selection of material," or "were prepared after the interview without the aid of complete notes, and hence rest on the memory of the agent," were not covered by the Jencks Act. Id. at 352-53. The Second Circuit has subsequently held that the central question is whether the relevant writing "could fairly be deemed to reflect fully and without distortion what had been said to the government agent."United States v. Scotti, 47 F.3d 1237, 1249 (2d Cir. 1995) (quoting Palermo, 306 U.S. at 352).
The Court's in camera review shows that August 12 Notes include three pages of fragmentary jottings that appear to convey the impressions of Det. Braccini. Only one brief paragraph uses a form that suggests it similar to the words actually spoken by Hughes, and there is at least one clear interpolation of Det. Braccini's own thoughts in the form of a "To Do" list. Accordingly, the August 12 Notes do not constitute a statement under the Jencks Act, and the Government was not required to produce them to the Defendant. See United States v. Lamma,349 F.2d 338, 340(2d Cir. 1965) (finding that notes were not substantially verbatim where they were "fragmentary," contained "no indication that they conform to [the witness's] language rather than that of the Assistant U.S. Attorney," and contained "several interpolations of the interviewer.."); United States v. Aviles, 315 F.2d 186, 191 (2d Cir. 1963) (same, where "the documents themselves indicate that they are the result of a process of selection," and "signs of addition and interpolation are evident on the face of the documents."); United States v. Sainato, 29 F.Supp.2d 116, 119 (E.D.N.Y. 1998) (same, where notes were "rough, choppy, disjointed, scattered jottings full of sentence fragments.").
The August 26 Notes are similarly fragmentary, are non-narrative, and clearly evidence substantial selection of material in the form of a number of names listed without explanation. Therefore they are also beyond the scope of the Jencks Act. See United States v. Mora, 994 F.2d 1129, 1139 (5th Cir. 1993)(notes that "consist of names of persons provided by [the witness]" and "are scattered jottings, not a formal memorandum or report" were not a substantially verbatim recital). As neither the August 12 Notes nor the August 26 Notes constitute Hughes's prior statements under § 3500(e), Hughes's testimony cannot be precluded on the basis of the Jencks Act.*fn1
Brady requires the Government to disclose exculpatory and impeachment material "that, if suppressed, would deprive the defendant of a fair trial." United States v. Bagley, 473 U.S. 667, 675 (1985). The defendant is deprived of a fair trial for Brady purposes "only where only where there is a reasonable probability that the government's suppression affected the outcome of the case, or where the suppressed evidence 'could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" United States v. Coppa, 267 F.3d 132, 135 (2d Cir. 2001) (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)) (internal citations omitted). The nature of the Brady inquiry leaves it ill-suited to resolution before the trial is completed:
Although the government's obligations under Brady may be thought of as a constitutional duty arising before or during the trial of a defendant, the scope of the government's constitutional duty -- and, concomitantly, the scope of a defendant's constitutional right -- is ultimately defined retrospectively, by reference to the ...