The opinion of the court was delivered by: Stephen C. Robinson, United States District Judge
Defendants Victor Tavarez ("Tavarez") and Cresencia Bayron ("Bayron"; collectively the "Defendants") are charged with a conspiracy to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B), and 846. Bayron filed various pre-trial motions for suppression of evidence and discovery, and requested an evidentiary hearing to address certain of these issues. For the reasons discussed below, Bayron's motions are DENIED.
I. Requests for Discovery
A. Rule 16 "Recorded Statements"
Pursuant to Fed. R. Crim. P. 16(a)(1)(B), Bayron requests that the Government provide the date, time, place, and circumstances of an oral statement that the Complaint alleges Bayron made in the presence of a confidential source ("the CS") in December 2006, as well as any written summaries of that statement made by the confidential source or by law enforcement personnel. Bayron contends that because this oral statement "was likely memorialized in writing in a report" by either a DEA agent or the CS, it therefore constitutes a "recorded statement" within the meaning of Fed. R. Crim. P. 16(a)(1)(B). In addition, Bayron requests records of any statements attributed to Bayron that may have been recounted to the Government during a proffer session.
Rule 16(a)(1)(B)(ii) clearly requires the Government to produce the portion of any written record of an oral statement by a defendant "if the defendant made the statement in response to interrogation by a person the defendant knew was a government agent." This provision, however, does not encompass the statement at issue here, as Bayron does not claim that her statement was made to an individual she knew to be a government agent. The Second Circuit has held that oral statements by a defendant to persons other than known government agents, even if they are documented in a written record, need not be produced as part of Rule 16 discovery. See In re United States, 834 F.2d 283, 284-86 (2d Cir. 1987). Accordingly, Bayron's request for production of any written record of her December 2006 statement that was recounted by the CS is hereby DENIED.
To the extent that Bayron is requesting statements made by prospective Government trial witnesses, the text of 18 U.S.C. § 3500 et seq. makes clear that the Government is under no obligation to produce Jencks Act material until after a witness has testified on direct examination at trial. Indeed, district courts lack the authority to compel early disclosure of Jencks Act material. See In re United States, 834 F.2d at 287. Similarly, it is well established that the Government need only produce evidence that may be used to impeach the credibility of any of the Government's witnesses pursuant toGiglio v. United States, 450 U.S. 150, 154 (1972) "in time for effective use at trial." See, e.g., United States v. Perez, 940 F. Supp. 540, 553 (S.D.N.Y. 1996). Here, the Government, in good faith, has represented that it intends to produce Giglioand Jencks Actmaterial the day before the corresponding witness will testify, or, if additional time is reasonably required to review such material, sufficiently in advance of the witness's testimony so as to avoid any delay at trial. At the time of those disclosures, to the extent that Bayron or Tavarez feels that additional time is necessary given the volume or complexity of the materials provided, the Court will consider applications to continue or recall witnesses. It is unnecessary, however, to order early disclosure at this time. Thus, to the extent that Bayron's motion seeks early production of Jencks Act or Giglio material, that motion is DENIED.
B. Early Production of Rule 404(b) Material
Bayron requests disclosure of evidence the Government will seek to admit under Federal Rule of Evidence 404(b). Rule 404(b) itself only requires that the Government provide "reasonable notice in advance of trial" for the admission of prior convictions and bad acts as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The rule establishes no minimum time, however, because "the evidence the government wishes to offer may well change as the proof and possible defenses crystallize." United States v. Matos-Peralta, 691 F. Supp. 780, 791 (S.D.N.Y. 1988). The Government acknowledged its obligations under Rule 404(b), and indicated that it intends to provide notice of any 404(b) evidence it might seek to introduce at least 10 working days before the beginning of trial. The Second Circuit has held that disclosure with even less advance notice than this can still be reasonable under Rule 404(b). See, e.g., United States v. Valenti, 60 F.3d 941, 945 (2d Cir. 1995). There is therefore no need to issue the order Bayron seeks. See United States v. Ramirez, No. 91 Cr. 493 (KMW), 1991 U.S. Dist. LEXIS 12183, *4 (S.D.N.Y. Aug. 30, 1991) ("the Government has represented that it will provide timely notice of any intent to introduce [404(b)] evidence so that there is no need to issue the order defendant seeks"). Bayron's motion for early disclosure of Rule 404(b) material is therefore DENIED.
C. Informant-Related Information
Bayron seeks a ruling requiring the Government to disclose information about the CS: (1) for the purposes of testimony at a requested suppression hearing; or, alternatively, (2) so that she may investigate and interview the CS as part of trial preparation. Based on the complaint and indictment in this matter, Bayron believes "that the information attributed to the confidential source may well have been relied on as a basis for arresting Bayron."
In general, the Government may withhold from disclosure the identity of individuals who inform law enforcement officers of violations of the law. See, e.g., Roviaro v. United States, 353 U.S. 53, 59 (1957); United States v. Jackson, 345 F.3d 59, 69 (2d Cir. 2003). Where the disclosure of an informant's identity "is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause," Jackson, 345 F.3d at 69, the Government's privilege gives way to the defendant's rights. See Roviaro, 353 U.S. at 60-61. This Court is required to balance "the public interest in protecting the flow of information against the individual's right to prepare his defense." Id. at 62.
A defendant bears the burden of demonstrating the need for disclosure of an informant's identity, and must show that without such disclosure, he or she will be deprived of the right to a fair trial. See, e.g., United States v. Fields, 113 F.3d 313, 324 (2d Cir. 1997).Disclosure of a confidential informant's identity is an "extraordinary remedy," see United States v. Muyet, 945 F. Supp. 586, 602 (S.D.N.Y. 1996), and "disclosure of the identity or address of a confidential informant is not required unless the informant's testimony is shown to be material to the defense." United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988).A defendant must do more than simply allege that the informant was a participant in or witness to the crime charged, or that the informant might cast doubt on the general credibility of a government witness. Id. The Second Circuit has stated that "speculation that disclosure of the informant's identity will be of assistance is not sufficient to meet the defendant's burden." Fields, 113 F.3d at 324.
A defendant's need for disclosure of an informant's identity has been found less compelling for purposes of a pretrial suppression hearing than for purposes of trial, as the issues in suppression hearings typically do not specifically bear on the guilt of the defendant. See, e.g., Fields, 113 F.3d at 324; McCray v. Illinois, 386 U.S. 300, 311-12 (1967). Moreover, the Second Circuit has held that disclosure of an informant's identity for a suppression hearing is appropriate only where "the information supplied by such persons constitutes the 'essence,' 'core' or 'main bulk' of the probable cause upon which the authorities have relied, and where the critical ...