The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is the defendant's omnibus motion seeking various forms of pretrial relief (Docket No. 11).*fn1
On March 26, 2009, the Grand Jury for the Western District of New York indicted the defendant, Joshua Figueras ("Figueras") asserting that on various occasions he possessed cocaine with the intent to distribute [Counts 4-5] and distributed cocaine [Counts 1-3] in violation of 21 U.S.C. §§841(a)(1), 841(b)(1)(A), 841(a)(1)(B), 841(b)(1)(C), and 844(a). The indictment also charges that Figueras illegally possessed a firearm in furtherance of the alleged drug trafficking in violation of 18 U.S.C. §924(c) [Count 6], and that he illegally possessed various firearms and ammunition in violation of 18 U.S.C. §§922(g)(1) and 924(a)(2) [Count 7]. Finally, the indictment includes a forfeiture charge relating to the firearms and ammunition [Count 8].
The defendant has set forth a variety of items sought by way of pretrial discovery in this matter. It appears that the government has provided much of the discovery sought by the defendant. During oral argument, the defendant stated that the government had not yet produced copies of transcripts of recorded conversations involving the defendant. The defendant stated that he did not believe that the government was refusing to produce the transcripts, but that the government had not yet obtained the transcripts. The government represented that it would check on whether the transcripts were yet available, and if so, they would be produced. The government offered to allow counsel for the defendant to listen to the recordings at the offices of the United States Attorney. The government is directed to provide the transcripts to the defendant as soon as they are available.
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).
The government has acknowledged its obligations under Brady and the Jencks Act and has represented that other than information relating to the confidential cooperating individual who made controlled purchases from the defendant, it is unaware of any exculpatory evidence in its possession. The government contends that disclosure of any information relating to this individual prior to trial would "create a threat to the individual and [compromise] the ability of the investigating agencies to use this person in ongoing investigations. The government states that it will produce impeachment information regarding this individual in accordance with the scheduling order set be the District Court prior to trial in this case. (Docket No. 12 at page 6-7).
Neither the Supreme Court, nor the Second Circuit*fn2 , 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 ...