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United States v. Ordaz-Gallardo

October 17, 2007

UNITED STATES OF AMERICA
v.
SALVADOR ORDAZ-GALLARDO AND ERIBERTO JIMENEZ, A/K/A "RAUL COTTO," A/K/A : "RAUL COTTO DE LA PAZ," DEFENDANTS.



The opinion of the court was delivered by: Stephen C. Robinson, United States District Judge

DECISION AND ORDER

Salvador Ordaz-Gallardo ("Ordaz-Gallardo") and Eriberto Jimenez ("Jimenez"; 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)(A). Defendants filed various pre-trial motions for suppression of evidence and discovery, and requested evidentiary hearings to address certain of these issues.*fn1 For reasons discussed below, Defendants' discovery motions are all DENIED; this Court reserves judgment on Defendants' motions for suppression of evidence pending an evidentiary hearing.

I. Requests for Discovery

A. General Rule 16 Disclosures

Defendants request that this Court direct the Government to provide all materials that must be supplied to Defendants under Rule 16 of the Federal Rules of Criminal Procedure, including, but not limited to: (1) any and all written, recorded, or oral statements made by Defendants within the possession, custody, or control of the Government; (2) all books, papers, photographs or other documents that were obtained from the Defendants, and/or that the Government intends to use at trial; (3) any reports of any physical or mental examinations and of any scientific tests or experiments; (4) any records of telephone charges over any instrument in which the Defendants maintained a possessory interest; (5) any warrant applications and items obtained during any searches; (6) any pre-trial identification procedures; (7) any photographs or video recordings, or telescopically-enhanced surveillance made in conjunction with this case; and (8) any notes, reports, or other writings made by officers or agents or any law enforcement agency relating to the case.

In its papers, the Government represents, in sum and substance, that it has already complied with its discovery obligations pursuant to Rule 16. Many of Defendants' specific requests for documents, therefore, are moot, as the documents have already been provided. The Government is well-acquainted with its Rule 16 obligations, including its obligation under Rule 16(c) to provide additional discovery if and when it becomes available. This Court has no reason to believe that the Government has not acted reasonably and in good faith to comply with its Rule 16 obligations, and is satisfied with the Government's representations that it will continue to do so. See United States v. De La Cruz, No. 05 Cr. 773 (NRB), 2006 U.S. Dist. LEXIS 55725, *8 (S.D.N.Y. Aug. 8, 2006). Accordingly, Defendants' request for an order directing the Government to comply with its Rule 16 discovery obligations is DENIED. To the extent that Defendants' request discovery under Rule 16 of any materials that are not specifically provided for under Rule 16 -- such as information concerning oral statements which were not given in response to interrogation by a person the Defendants knew was a government agent -- those requests are also DENIED.*fn2

B. Statements of Co-conspirators

Defendants each request oral, written, or recorded statements made by any known co-conspirator, whether indicted or un-indicted, including, but not limited to, all such statements the Government intends to introduce at trial, or that the Government does not intend to introduce, but which relate to any issue in this case. As an alternative, Defendants request that the Government be required to disclose any and all statements of co-conspirators that the Government intends to introduce at trial under the co-conspirator exception to the hearsay rule. See Fed. R. Evid. 801(d)(2)(E).

Defendants cite no authority in support of their request for disclosure of co-conspirator statements. The Second Circuit has held that disclosure of co-conspirator statements is not required, reasoning that "allowing a defendant to discover the statement of a co-conspirator as his own would transmogrify the coconspirator into the person of the defendant himself.. [A] defendant who fears further disclosure by a coconspirator could take whatever unlawful steps are necessary to insure that his alter ego is silenced." In re United States, 834 F.2d 283, 286-87 (2d Cir. 1987). Disclosure is also not warranted under Fed. R. Evid. 801(d)(2)(E). See United States v. Robles, No. 04 Cr. 1036 (GEL), 2005 U.S. Dist. LEXIS 7168, *4 (S.D.N.Y. 2005) ("discovery of statements by alleged co-conspirators that the Government will seek to introduce pursuant to Fed. R. Evid. 801(d)(2)(E) is not required"). Accordingly, Defendants' motion to receive co-conspirator statements is DENIED.

C. Grand Jury Transcripts

Defendants request that this Court direct the release of grand jury transcripts so that Defendants can determine whether those proceedings would support a motion to dismiss the indictment. Ordaz-Gallardo in particular claims that there is insufficient proof to connect him to the crime charged in the indictment, and speculates that the grand jury testimony might support that contention.

The Second Circuit has held that "a review of grand jury minutes is rarely permitted without specific factual allegations of government misconduct." United States v. Torres, 901 F.2d 205, 233 (2d Cir. 1990) (citing United States v. Wilson, 565 F. Supp. 1416, 1436-37 (S.D.N.Y. 1983)). Fed. R. Crim. P. 6(e)(3)(E)(ii), however, provides that "the court may authorize disclosure.of a grand-jury matter at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury." To obtain disclosure of grand jury materials, a defendant must demonstrate a "particularized need" for the materials. See United States v. Moten, 582 F.2d 654, 662 (2d Cir. 1978) (burden is on party seeking disclosure of grand jury minutes to show a "particularized need" that outweighs need for secrecy). Further, it is clear that "an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence." United States v. Calandra, 414 U.S. 338, 345 (1978).

Defendants offer little more than speculation that some impropriety may have occurred before the grand jury that would require this case to be dismissed. Such speculation falls well short of the "particularized need" Defendants must show to obtain disclosure of grand jury materials. See United States v. Dunn, No. 05 Cr. 127 (KMK), 2005 U.S. Dist. LEXIS ...


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