The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
This case was referred to the undersigned by the Hon. William M. Skretny, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions.
The defendant, Claude J. Caldwell ("the defendant"), is indicted along with three co-defendants in a multi-count Indictment wherein he is charged with having violated 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) and 18 U.S.C. § 2 (Count 6); 21 U.S.C. § 844(a) and 18 U.S.C. § 2 (Count 7); 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 844(a) (Count 8); 18 U.S.C. §§ 924(c) and 2 (Count 9); and 21 U.S.C. § 844(a) and 18 U.S.C. § 2 (Count 10). (Docket #1). These charges arise from the execution of a search warrant issued by Chief Judge Violanti of the Niagara Falls City Court for the premises located at 1339-1/2 Pierce Avenue in the City of Niagara Falls, New York on November 11, 2006.
The defendant has filed and omnibus motion (Docket #58) and a supplemental motion (Docket #69) wherein he seeks: (1) a severance from the other co-defendants named in the instant Indictment; (2) "discovery as to the manner in which the search warrant was executed and clarification of what was seen upon entry, or before;" (3) "the testimony and summary of witnesses that were presented to the grand jury and/or will be utilized at trial;" (4) "the nicknames of each of the informants as well as their identity, photos and copies of all notes taken of interviews along with dates, times and places;" (5) "copies of tests as concern operability" of weapons seized "and availability of fingerprint comparisons and DNA samples" along with "a statement from the government setting forth where each item of evidence was found and the weight of each drug found;" (6) "discovery pursuant to Rule 16" Fed. R. Crim. P.; (7) "a list of the witnesses intended to be called by the government;" (8) production of "FRE 404(b) material," "FRE 609 material," and "FRE 803(24) (sic) evidence;" (9) a bill of particulars; (10) exclusion "from the trial of any statements made by any others other than those testifying co-conspirators or other witnesses that have been noticed to defense at the trial herein;" (11) production of Brady, Giglio and Jencks material; (12) "preservation of rough notes;" and (13) "leave to make other and further motions."
The government has filed a response to these requests of the defendant. (Docket #s 66 and 72).
Each of the defendant's requests will be addressed herein.
1. Defendant's Request For A Severance
The defendant is indicted along with the co-defendants, Courtney T. Moragne, Tywon M. Mallory and Tamika N. Florence.*fn1 Defendant Moragne is charged in Counts 1 through 13 of the Indictment with having violated 21 U.S.C. §§ 841, 844, 846 and 18 U.S.C. § 924. The defendant Mallory is charged in Counts 6 through 13 of the Indictment with having violated 21 U.S.C. §§ 841, 844, 846 and 18 U.S.C. § 924.
The defendant argues that since he is only charged in Counts 6 through 10 of the Indictment, he would be prejudiced by being tried with the co-defendants Moragne and Mallory who are further charged in Counts 1 through 5 and Counts 11 through 13 of the Indictment. More specifically, the defendant asserts that he "is only charged for the events of November 11, 2006" whereas the co-defendants Moragne and Mallory are charged with additional, similar crimes that allegedly occurred on June 13, 2006 and January 25, 2007 and because "the events of June 13, 2006 and January 25, 2007 are so similar in nature to those crimes of which [the defendant] is charged" he would be prejudiced and denied "a fair trial" by being tried along with said co-defendants. (Docket #58, p. 2).
The defendant also claims that the co-defendant "Moragne has relative and probative information" relating to the weapons charges herein and that "his testimony is necessary in order for [the] defendant to prepare a defense." He further asserts that "if a joint trial were to be held, Moragne would not testify on behalf of [the defendant] and "would invoke his privilege against self-incrimination." As a result, the defendant "would then be denied the benefit of any potentially exculpatory testimony Moragne may be able to provide." (Docket #58, pp. 2-3; Docket #69, p. 2).
The government responds that the defendant has not made a sufficient showing of prejudice to warrant severance.
[W]hen defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.
Zafiro v. United States, 506 U.S. 534, 539 (1993).
When the charges against the defendants involve a common plan or scheme, the defendants who have been indicted together will normally be tried together. United States v. Matos-Peralta, 691 F. Supp. 780, 789 (S.D.N.Y. 1988). "The disposition of a motion for severance under Rule 14 is entrusted to the sound discretion of the trial court. See United States v. Nersesian, 824 F.2d 1294, 1303 (2d Cir. 1987)." United States v. Matos-Peralta at 788; Opper v. United States, 348 U.S. 84 (1954).
The defendant maintains a "heavy burden" in establishing a right to a severance. United States v. Sotomayor, 592 F.2d 1219, 1227 (2d Cir.), cert. denied sub nom. Crespo v. United States, 442 U.S. 919 (1979). He must establish that he will be so severely prejudiced by a joint trial that he will in effect be denied a fair trial. United States v. Persico, 621 F. Supp. 842 (S.D.N.Y. 1985).
In deciding whether to grant severance based on the defendant's need to call a co-defendant, a district court should consider (1) the sufficiency of the showing that the co-defendant would testify at a severed trial and waive his Fifth Amendment privilege; (2) the degree to which the exculpatory testimony would be cumulative; (3) the counter arguments of judicial economy; and (4) the likelihood that the testimony would be subject to substantial, damaging impeachment.
United States v. Wilson, 11 F.3d 346, 354 (2d Cir. 1993), cert. denied, 511 U.S. 1130 (1994). The failure to submit a declaration affirming that a co-defendant would testify and waive his Fifth Amendment privilege warrants denial of the motion. Id.; see United States v. Bari, 750 F.2d 1169, 1177 (2d Cir. 1984) ("burden of demonstrating prejudice is not satisfied by wholly conclusory statements merely labeling the proffered testimony as exculpatory"), cert. denied sub nom Benfield v. United States, 472 U.S. 1019 (1985); United States v. Solomonyan, 451 F. Supp.2d 626, 651 (S.D.N.Y. 2006) (failure to submit a declaration from co-defendant affirming, under penalty of perjury, that co-defendant would testify and waive his Fifth Amendment privilege warrants denial of motion for severance); United States v. Ferrarini, 9 F. Supp.2d 284, 293 (S.D.N.Y. 1998) (summarily dismissing motion for severance where there was no showing that co-defendants would testify at a separate trial or that their testimony would exculpate defendant).
The ultimate question is whether, under all the circumstances of the particular case, as a practical matter, it is within the capacity of the jurors to follow the court's admonitory instructions and accordingly to collate and appraise the independent evidence against each defendant solely upon that defendant's own acts, statements and conduct. In sum, can the jury keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him? If so, though the task be difficult, severance should not be granted.
United States v. Kahaner, 203 F. Supp. 78, 81-83 (S.D.N.Y. 1962); aff'd, 317 F.2d 459 (2d Cir.), cert. denied, 375 U.S. 836 (1963).
The charges against this defendant and his co-defendants in the Indictment are such that with appropriate instructions from the trial judge, a jury will be able to collate and appraise the independent evidence against the defendant solely on his acts, statements and conduct and thereby render a fair and impartial verdict as to him. Therefore, defendant's request for a severance is DENIED.
2. Defendant's Request As To The Manner In Which The Search Warrant Of November 11, 2008 Was Executed
"The defense seeks further discovery as to the manner in which the search warrant [relating to the November 11, 2006 search] was executed and clarification of what was seen upon entry, or before" claiming that "the location of [the defendant] upon execution of the warrant is significant to the defense." (Docket #58, p. 3). The defendant also seeks production of any surveillance notes that exist that relate to any "surveillance [that] was initiated on the premises [at 1339-1/2 Pierce Avenue] prior to entry" on November 11, 2006. (Docket #58, p. 4).
The defendant does not contest the validity of the search warrant in question but rather appears to be seeking factual or evidentiary information relating to the events of November 11, 2006 in which he was involved. In support of this request, he points to what appears to be a discrepancy between what was contained in the original affidavit in support of the search warrant application and a supplementary police report relating to alleged informant controlled purchases of drugs in October 2006 and November 2006. (Docket #58, p. 3; Docket #69, p. 2).
The government has responded to these requests by stating:
The government has already provided to the defense all of the material within its possession with regard to the search warrant, the execution of the search warrant and entry into the premises named in the warrant, the recovery of items of contraband and arrest of the defendants with regard to Counts 6 through 10 of the Indictment. The government is not aware of any notes of officers involving surveillance of the premises prior ...