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. Dkt. #60.
Before the Court is defendant Ronquike Maisonet's omnibus motion for discovery. Dkt. #125. In addition to the relief sought in their own separately filed motions, each of which will be the subject of a separate Decision and Order, defendants Quentin Leeper, Major Anthony Newton and Dion D. Knight join in the aforementioned motion filed by defendant Ronquike Maisonet. See Dkt. ## 114, 126-127. Defendant Ronquike Maisonet similarly seeks this Court's permission to join in the motions filed by defendants Quentin Leeper, Major Anthony Newton and Dion D. Knight. Thereafter, the government filed a consolidated response to all of the pending motions, including the above-described motion for discovery. Dkt. #132. At the conclusion of its consolidated response, the government has made a request for reciprocal discovery pursuant to Rule 16(b) of the Federal Rules of Criminal Procedure. Id. Each of the defendant's requests and the government's response will be separately addressed below using the headings set forth in defendant's motion. The following Decision and Order will principally address defendant Ronquike Maisonet's motion for discovery but will apply with equal force to those defendants who have "joined" in the relief sought by defendant Ronquike Maisonet. For the following reasons, defendant Maisonet's motion for discovery is granted in part and denied in part.
Defendants Quentin J. Leeper, Ronquike E. Maisonet, Raymond A. Hodnett, Major Anthony Newton, and Dion D. Knight are charged along with six co-defendants in a multi-count Superceding Indictment with having violated Title 21, United States Code, Sections 841(a)(1), 846 and 853(a) and Title 18, United States Code, Section 2. Dkt. ## 1 (Indictment) and 66 (Superceding Indictment). As a threshold matter, the government states in its consolidated response,
[t]he government contends that it had provided, pursuant to voluntary discovery and requests made by defendants, the wiretap application, affidavit, warrant, sealing order, search warrant and inventories and affidavits thereto, preliminary laboratory reports, two DVDs containing all pertinent conversations, and transcripts thereof, constituting all material presently within its possession that is within the purview of Rule 16 and in compliance with Rule 12(b)(4)(B) and believes that discovery is thereby complete.
Dkt. #132, ¶ 4 (internal footnote omitted).
"Summary Witness Testimony Before Grand Jury and as Anticipated upon the Trial of this Action"
By this request, defendant Maisonet seeks the production of the grand jury testimony relating to the Indictment and Superceding Indictment in this case. Dkt. #125, p.2. Moreover, defendant Maisonet seeks the production of a summary of the testimony of the witnesses who are expected to testify during the trial of this matter. Id. The Court notes that transcripts of grand jury testimony of witnesses called by the government to testify at trial must be made available to the defendant pursuant to and in accordance with Title 18, United States Code, Section 3500 ("Jencks Act material").
Title 18, United States Code, Section 3500 only requires that statements of witnesses called by the government be turned over to the defendant after the witness has completed his testimony on direct examination. In its response, the government states, "[t]he government agrees to provide impeachment Brady material, i.e., promises of leniency or immunity agreements with government's witnesses, criminal records of prosecution witnesses, immoral, various or criminal acts committed by witnesses, and prior inconsistent statements no later than one week prior to the commencement of trial, at which time the government will produce the Jencks Act material." Dkt. #132, ¶ 16. Accordingly, it appears from the government's response to the instant motion that the government has adopted a policy of turning such information over to the defendant prior to trial, defendant's request is therefore GRANTED and the government is hereby directed to comply with that policy, or in the alternative, produce such information in accordance with the scheduling order issued by the trial judge. With respect to that portion of defendant Maisonet's request concerning a summary of each witnesses anticipated trial testimony, defendant's request is DENIED.
"Informant's Notes, Nicknames, Photos"
By this request, the defendant seeks the nicknames of each of the informants as well as their identity, photos and copies of all notes taken during the interviews of these informants. Dkt. #125, p.2. In its response, the government declines to provide the identity of its informants stating that the defendant has failed to assert a basis to warrant compliance with the request. Dkt. #132, ¶ 9.
The government asserts that the defendant has failed to sufficiently state a basis for requiring the disclosure of this information or that the testimony of the informant would be of even marginal value to the defendant's case. As a result, the holding of the Court of Appeals for the Second Circuit in United States v. Saa, 859 F.2d 1067 (2d Cir. 1988), cert. denied, 489 U.S. 1089 (1989), is dispositive of this request by the defendant wherein the Court stated:
The leading Supreme Court case on this question, Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), holds that
[w]here the disclosure of an informant's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to the fair determination of a cause, the [informant's] privilege must give way.
353 U.S. at 60-61, 77 S.Ct. at 628. The Court explained that "no fixed rule with respect to disclosure is justifiable." Id. at 62, 77 S.Ct. at 628. What is required is "balancing the public interest in protecting the flow of information against the individual's right to prepare his defense." Id. Whether non-disclosure is erroneous "must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Id. See Rugendorf v. United States, 376 U.S. 528, 534-35, 84 S.Ct. 825, 829, 11 L.Ed.2d 887 (1964); United States v. Lilla, 699 F.2d 99, 105 (2d Cir. 1983); United States v. Ortega, 471 F.2d 1350, 1359 (2d Cir. 1972), cert. denied, 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973).
The defendant is generally able to establish a right to disclosure "where the informant is a key witness or participant in the crime charged, someone whose testimony would be significant in determining guilt or innocence." United States v. Russotti, 746 F.2d 945, 950 (2d Cir. 1984); United States v. Roberts, 388 F.2d 646, 648-49 (2d Cir. 1968); see United States v. Price, 783 F.2d 1132 (4th Cir. 1986); United States v. Barnes, 486 F.2d 776 (8th Cir. 1973). In Roberts, the informant introduced an undercover agent to the defendant and was present when the defendant and the agent negotiated and transacted two sales of heroin. The Court, noting that the informant was "present during all the significant events," 388 F.2d at 649, found that he was "obviously a crucial witness to the alleged narcotics transactions," id., and therefore, his whereabouts should have been revealed to the defense if properly requested. But disclosure of the identify or address of a confidential informant is not required unless the informant's testimony is shown to be material to the defense. See United States v. Valenzuela-Bernal, 458 U.S. 858, 870-81, 102 S.Ct. 3440, 3448, 73 L.Ed.2d 1193 (1982) (dictum); United States v. Lilla, 699 F.2d at 105. As this Court's recent opinion in United States v. Jiminez, 789 F.2d 167 (2d Cir. 1986) makes clear, it is not sufficient to show that the informant was a participant in and witness to the crime charged. In Jiminez, the informant was both participant and witness, but the district court's refusal to order disclosure of his identity was upheld on the ground that the defendant had failed to show that the testimony of the informant "would have been of even marginal value to the defendant's case. 789 F.2d at 170."
Id. at 1073; see also United States v. Fields, 113 F.3d 313, 324 (2d Cir.), cert. denied, 522 U.S. 976 (1997).
Moreover, with respect to the defendant's request for notes of interviews of the government's informants, the government stated in its response that it will disclose written statements of witnesses and investigative agency or police department memoranda of interviews with witnesses consistent with the requirements set forth in Title 18, United States Code, Section 3500. The Court notes that the government has represented that Jencks Act material will be produced no later than one week prior to the commencement of trial. Finally, to the extent that defendant Maisonet's request seeks the production of "rough notes," the government's response states "[r]egarding rough notes, no such basis exists at this time for providing the requested materials, if they exists. The government will endeavor to maintain such materials, if they exist. This in no way should be construed as any concession that said notes are subject to disclosure." Dkt. #132, ¶ 8.
Since the defendant has not made a sufficient showing that disclosure of the identity of the informants and any informant's potential testimony is essential and material to the effective preparation of her defense, this request is DENIED.
"Experts, Medical Records, Weight"
By this request, the defendant seeks the production of statements from the government setting forth where each item of evidence was found and the weight of each drug found. Dkt. #125, pp.2-3. In its response, the government states that it has provided, pursuant to voluntary discovery, preliminary laboratory reports. Dkt. #132, ¶ 4. Also in its response, the government indicates that the results and reports of physical and mental examinations and of scientific tests and experiments conducted in connection with this matter have been made available to defendants. Dkt. #132, ¶ 4. Additionally, the government states that it will comply with defendant's request for expert disclosures relating to those witnesses who will testify pursuant to Federal Rules of Evidence 702, 703 and 705. Id. at ¶ 5.
In a May 9, 2008 letter to counsel for all the defendants, counsel for the government recited in summary fashion its estimation/approximation of the weight of certain quantities of suspected controlled substances. Dkt. #132-2. The government has further stated that it has made available all tangible objects obtained pursuant to the search warrants or otherwise and further, that it will make available photographs material to the preparation of a defense or intended to be used at trial. Dkt. #132, ¶ 6. Accordingly, based on the government's representation that the requested items either have been made available or will be provided to defendant, defendant's request is DENIED as moot.
"Motion for Discovery Pursuant to Rule 16 and Notice of Intention Pursuant to Rule 12"
As a threshold matter, defendant Maisonet notes that she, through her counsel, received a disclosure memorandum and enclosed materials dated April 4, 2008, as well as a May 9, 2008 letter detailing the pre-trial disclosures made. Notwithstanding the foregoing, defendant Maisonet seeks the production of the following thirteen (13) categories of documents: (1) statements; (2) "scientific"; (3) identification; (4) law enforcement documents; (5) third party documents; (6) other documents; (7) tapes, photographs; (8) witnesses; (9) impeaching information; (10) FRE 404(b) Material; (11) FRE 609 Material; (12) FRE 803(24) Evidence; and (13) Expert Witness - FRCP 16(a)(1)(E). Each of the thirteen (13) categories of documents requested will be separately addressed below.
By this request, defendant Maisonet seeks the production of any written, recorded, oral or observed statement made by her or made by any uncharged defendant or co-conspirator, including the notes, summaries or memoranda concerning such statements. In addition, this request seeks the production of the transcript of any testimony relating to this action given by any uncharged defendant or co-conspirator before any grand jury. Moreover, defendant Maisonet seeks the production of any hearsay evidence intended to be introduced ...