The opinion of the court was delivered by: Hugh B. Scott United States Magistrate Judge Western District of New York
Before the Court are the defendant's motions seeking various pretrial relief (Docket Nos. 10 and 13). Among other things, the defendant seeks separate trials with respect to certain counts in the indictment, as well as dismissal of counts one, six and eight of the indictment.*fn1
The Second Superseding Indictment*fn2 charges the defendant, Ryan Warme ("Warme"), with wire fraud - deprivation of honest services in violation of 18 U.S.C. §§ 1343 and 1346 (Count One); deprivation of civil rights (allegedly forcing Victim 1 to have sexual intercourse with him while he was on duty as a police officer) in violation of 18 U.S.C. §242 (Count Two); deprivation of civil rights (allegedly fondling Victim 2's breasts, buttocks and genital area without her consent while he was on duty as a police officer) in violation of 18 U.S.C. §242 (Count Three); deprivation of civil rights (allegedly forcing Victim 3 to perform an act of oral sex upon him while he was on duty as a police officer) in violation of 18 U.S.C. §242 (Count Four); using, carrying and possessing a firearm during a crime of violence (in connection with the alleged violation of Victim 3's civil rights) in violation of 18 U.S.C. § 924(c) (Count Five); extortion under the color of official right (allegedly obtained services -- sexual favors-- of a prostitute [Victim 4] while on duty as a police officer) in violation of 18 U.S.C. §1951 (Count Six); conspiracy to distribute cocaine in violation of 21 U.S.C. §§841(a)(1) and 841(b)(1)(B) (Count Seven); using, carrying and possessing a firearm during a drug trafficking crime in violation of 18 U.S.C. §924(c) (Count Eight); possession of a firearm with an obliterated serial number in violation of 18 U.S.C. §§922(k) and 924(a)(1)(B) (Count Nine); misprision of a felony (possession of a firearm by a convicted felon, and possession of a firearm with an obliterated serial number by a convicted felon) in violation of 18 U.S.C. §4 (Count Ten); and conspiracy to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 844(a) (Count Eleven).
The defendant has set forth a variety of items sought by way of pretrial discovery in this matter. During oral argument, the government provided or agreed to provide certain outstanding discovery. To the extent the government becomes aware of additional material that should have been produced pursuant to Rule 16 of the Federal Rules of Criminal Procedure, such information must be disclosed.
Brady and Jencks Material
The defendant also seeks the disclosure of all potentially exculpatory materials, including information to be used for the impeachment of the government's witnesses, as required under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny. Brady material, as those cases have come to define it, includes all evidence which may be favorable to the defendant and material to the issue of guilt or punishment. Such evidence includes "[a]ny and all records and/or information which might be helpful or useful to the defense in impeaching ... [and] [a]ny and all records and information revealing prior misconduct ... attributed to the [government's] witness." U.S. v. Kiszewski, 877 F.2d 210 (2d Cir. 1989). The defendant also seeks disclosure of the statements of witnesses under the Jencks Act (15 U.S.C. §3500).
Neither the Supreme Court, nor the Second Circuit*fn3 , have ruled directly on whether there is a meaningful distinction between "exculpatory Brady" and "impeachment Brady" materials for purposes relating to the time within which such information must be disclosed. Several other courts have discussed the issue at hand, which often arises in the context of a potential, if not inherent conflict between the government's obligations to disclose under Brady, and the governments right to delay disclosure of certain information pursuant to the Jencks Act. Those cases suggest that the court has some discretion with respect to directing the timing of such disclosure. U.S. v. Campagnuolo, 592 F.2d 852 (5th Cir. 1979)(the Court interpreted Brady to require disclosure "at the appropriate" time, which often is prior to trial); U.S. v. Perez, 870 F.2d 1222 (7th Cir. 1989)(the government's delay in disclosing Brady material violates due process only if the delay prevented the defendant from receiving a fair trial); U.S. v. Ziperstein, 601 F.2d 281 (7th Cir. 1979)(a defendant receives a fair trial, notwithstanding delayed disclosure of Brady material, as long as disclosure is made before it is too late for the defendant to make use of any benefits of the evidence). But see U.S. V. Wilson, 565 F.Supp 1416 (S.D.N.Y. 1983) (impeachment material need not be produced prior to trial); U.S. Biaggi, 675 F.Supp 790 (S.D.N.Y. 1987)(information bearing on a witness' credibility may be turned over at the same time as [Jencks Act] materials); U.S. V. Feldman, 731 F.Supp 1189 (S.D.N.Y. 1990)(it is sufficient for the government to disclose Brady impeachment materials along with [Jencks Act] materials).
The Jencks Act relates only to "statements" made by government witnesses. Such statements may include inconsistencies which make them useful for impeachment purposes, and thus, subject them to disclosure under Brady principles. To this extent, it has been suggested that the constitutional requirements underlying Brady could act to modify the Jencks Act. U.S. v. Campagnuolo, 592 F.2d 852, 860 (5th Cir. 1979). But see U.S. v. Presser, 844 F.2d 1275 (6th Cir. 1988)(the government may not be compelled to pretrial disclosure of Brady or Jencks material). The record in this case does not reflect whether any of the materials withheld by the government may be considered both Brady and Jencks material. Certainly "impeachment Brady" material may include several items which are not considered "statements" under the Jencks Act.
This Court believes that fundamental fairness and the constitutional due process requirements which underlie Brady mandate that the court have some discretion with respect to the timing of the disclosure of such information, even if it may be considered combined Brady/Jencks material. Indeed, even with respect to purely Jencks Act materials, the Second Circuit has stated that "pre-trial disclosure will redound to the benefit of all parties, counsel and the court, ... sound trial management would seem to dictate that Jencks Act material should be submitted prior to trial ... so that those abhorrent lengthy pauses at trial to examine documents can be avoided." U.S. v. Percevault, 490 F.2d 126 (2d Cir. 1974); U.S. V. Green, 144 F.R.D. 631 (W.D.N.Y. 1992).
In the instant case, and while balancing all of the above, the Court concludes that disclosure of such inculpatory and impeachment material, if any exists, in accordance with the common practice in this district (prior to trial so long as it is disclosed in sufficient time for the defendant to ...