The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.
On December 10, 2007, the Government issued a Superseding Indictment (S9 05 Cr. 774) against Defendant Salvatore Battaglia, charging him with racketeering, conspiracy to commit racketeering, receipt of unlawful labor payments, conspiracy to receive unlawful labor payments, obstruction of justice, conspiracy to obstruct justice, conspiracy to commit extortion, and witness tampering. This case is set for trial on Tuesday, January 22, 2008.
On November 15, 2007, Defendant filed several motions in limine seeking various pretrial rulings ("Omnibus Motion"). By letters dated December 27, 2007, and January 3, 2008, Defendant filed additional motions in limine. The Government opposed a number of these motions.
In letters dated December 31, 2007, January 2, 2008, and January 9, 2008, the Government also moved for various pretrial rulings on the admissibility of certain evidence. Defendant opposed some of these motions.
The Court first addresses Defendant's motions in limine, in the order in which they were presented in Defendant's submissions.
First, with respect to Defendant's motion for disclosure of the Government's files concerning Julius "Spike" Bernstein (Omnibus Motion 7), the Government has stated that the requested material is not exculpatory, and therefore not subject to disclosure under Brady v. Maryland, 373 U.S. 83 (1963). Defendant has given no legal support for his other grounds for disclosure of this material, and thus this motion is denied, without prejudice.
Second, Defendant's motion for notice of the Government's intention to use Rule 404(b) evidence is moot (Omnibus Motion 12), because the Government has agreed to produce any such evidence at least 14 days before trial, in accordance with the standard practice in this district (Opp'n 5).
Third, the Court cannot tell from the parties' submissions whether Defendant's motion to preclude evidence submitted pursuant to Rules of Evidence 404(b) ("Other Crimes, Wrongs or Acts") and 609 ("Impeachment by Evidence of Conviction of Crime") is moot. (Omnibus Motion 14.) Defendant shall renew this motion by January 16, 2008, if it is not moot.
Fourth, the Court denies Defendant's motion for a hearing on the "factual basis" of the Government's contention that certain recorded conversations, which the Government seeks to introduce at trial, were conducted in coded language.*fn1 (Omnibus Motion 20.)
Whether such conversations were conducted in coded language, and the ultimate interpretation of any allegedly coded or ambiguous conversations, are issues of fact for the jury.
Fifth, with respect to Defendant's motion for a hearing on the audibility of any tape recordings the Government intends to offer at trial (Omnibus Motion 22), the Court notes that an audibility hearing was held on July 21, 2006, in connection with tape recordings used at the trial of Defendant's alleged co-conspirators. If the recordings the Government intends to introduce in the instant case are the same as those introduced in the earlier case, no separate audibility hearing in this case would be warranted, given that Defendant participated fully in the prior hearing. It is unclear, however, whether the Government intends to introduce in the instant case, only the same recordings as those ruled upon at the July 21, 2006 hearing. Accordingly, no later than January 16, 2008, the Government shall state whether the recordings it will seek to introduce at Defendant's trial are the same recordings ruled upon at the July 21, 2006 audibility hearing.
Sixth, Defendant's motion for disclosure of all Giglio material is moot, because the Government has stated that it is aware of its ongoing obligation under Giglio v. United States, 405 U.S. 150 (1972), and will comply in a timely fashion should such material be discovered. (Opp'n 5.)
Seventh, Defendant's motion for disclosure of all Brady material is moot for the reasons stated immediately above. (Opp'n 5.)
Eighth, the Court denies Defendant's motion for early disclosure of all "Jencks Act" material. The Jencks Act requires disclosure of a testifying witness's prior statements only after direct examination of that witness, 18 U.S.C. § 3500(a), and the Court may not otherwise compel the early disclosure of such material over a party's objections, see id.; Fed. R. Crim. P. 26.2(a); United States v. Percevault, 490 F.2d 126, 131-32 (2d Cir. 1974). However, the Court encourages the parties to ...