The opinion of the court was delivered by: Hon. Hugh B. Scott
This matter is referred to the undersigned to hear and determine pretrial matters pursuant to 28 U.S.C. § 636 (b)(1)(A) and, pursuant to 28 U.S.C. § 636(b)(1)(B), to submit proposed findings of fact and recommendations for the disposition of any motion excepted by 28 U.S.C. § 636(b)(1)(A) (Docket No. 2).
The instant matter before the Court is the defendant's omnibus motion which seeks the following relief: production of Brady materials; identification of informants; production of Federal Rule of Evidence 404(b) evidence; notice and discovery under Federal Rules of Criminal Procedure 16 and 12; production of Jencks Act materials; filing of a Bill of Particulars; preservation of evidence; production of Federal Rule of Evidence 807 residual exception statements; notice of physical evidence the Government intends to use at trial (for a possible defense motion to suppress), as well as other relief (Docket No. 17*fn1 ).
The Government has filed responding papers (Docket No. 18) and, at oral argument scheduled for August 27, 2009, the motion was deemed submitted on the moving papers (Docket No. 23).
Defendant is charged with two counts of intentional possession with intent to distribute of five grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) (Docket No. 1, Indict.). The Indictment alleges that defendant possessed cocaine base on June 23, 2008 (Count One), and on July 31, 2008, in Niagara Falls, New York (id., Count Two). The Government argues that this is a simple case against defendant, based upon two undercover purchases of crack cocaine from defendant by a cooperating individual whose conversations were recorded (Docket No. 18, Gov't Response at 1). Defense counsel has been provided with the transcripts of these conversations and lab reports and, if the case goes to trial, will be provided with the recordings of these transactions (id.). The Government contends that defendant has been provided full discovery in this case (see id. at 1-2).
Defendant first has requested that the Government disclose all materials potentially favorable to the defendant, including information to be used for the impeachment of the Government's witnesses, as required under Giglio v. United States, 405 U.S. 105 (1979); see also Brady v. Maryland, 373 U.S. 83 (1963). 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." United States v. Kiszewski, 877 F.2d 210 (2d Cir. 1989).
The defendant's motion identifies numerous specific categories of documents encompassing both exculpatory and impeachment Brady materials which they seek to obtain. The Government's written response is that the only Brady material that it possesses relates to background and criminal record of the individual who made the undercover purchases from defendant and that information will be produced with the Jencks Act materials (Docket No. 18, Gov't Response at 3). The Government notes its awareness of its continuing obligations under Brady and its progeny (id.).
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." United States v. Percevault, 490 F.2d 126 (2d Cir. 1974); United States v. Green, 144 F.R.D. 631 (W.D.N.Y. 1992) (Heckman, Mag. J.).
The instant case does not appear to be unusually complex. Balancing all of the above, the Court concludes that disclosure of such 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 have a fair opportunity to utilize the information at trial) is sufficient in this case.
II. Identity of Informants
Defendant next seeks the pre-trial disclosure of the identity of any informants in this case (Docket No. 17, Def. Atty. Aff. ¶¶ 15-26). The Government is not required to furnish the identities of informants unless it is essential to the defense. Roviaro v. United States, 353 U.S. 52, 60-61 (1957); United States v. Saa, 859 F.2d 1067, 1073 (2d Cir.) cert. denied 489 U.S. 1089 (1988). Nor does Rule 16 require the Government to disclose the names of witnesses prior to trial. United States v. Bejasa, 904 F.2d 137, 139 (2d Cir.), cert. denied, 498 U.S. 921 (1990). The Government states that it did not use or intend to rely on any informants, thus this motion must be dismissed as moot (Docket No. 18, Gov't Response ...