The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court are various motions filed on behalf of the respective defendants, including the following: the Joint Motion by Sergio Antonio Resendiz, Javier Banda Mireles, Alvaro Soto Paz, Jesus Francisco Escalante, Miguel Angel Antimo Mireles, Simon Banda Mireles, Alberto Antimo Mireles, and Honorio Banda Mireles seeking a bill of particulars, Rule 16 discovery and exculpatory information (Docket No. 17); Honorio Banda Mireles seeking Rule 16 disclosure, information pursuant to Rules 404, 608 and 609 of the Federal Rules of Evidence, statements of witnesses and grand jury testimony, exculpatory information, severance of trial, and a bill of particulars (Docket No. 19); and Jesus Francisco Escalante (Docket No. 61) seeking disclosure of statements of witnesses.*fn1
On December 4, 2008, the Grand Jury for the Western District of New York indicted defendants Simon Banda Mireles, aka Jorge Alberto DeLarco Gonzales, Sergio Antonio Resendiz Martinez, Javier Banda Mireles on charges of obtaining the labor and services of persons by threats of serious harm, physical restraint, by means of a scheme to cause those persons to believe that if they did not perform such labor and services that they would suffer serious harm and physical restraint and by means of the abuse and threatened abuse of the law and the legal process in violation of 18 U.S.C. §§ 1589 and 1594(a) [Count One]. Count Two of the Indictment charges that those three defendants, along with Alberto Antimo Mireles, Miguel Angel Antimo Mireles, Honorio Banda Mireles, Jeses Francisco Escalante, Maurilio Bautista Feria, Alejandro Garcia, Alvaro Soto Paz, and Agustin Quinones Torres knowingly and in reckless disregard that certain aliens entered and remained in the United States illegally, concealed, harbored, and shielded those illegal aliens from detection for commercial gain in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iii) and 1324(a)(1)(B)(i).
Several defendants have entered guilty pleas in this case. Those remaining are: Simon Banda Mireles (aka Jorge Alberto DeLarco Gonzales), Sergio Antonio Resendiz Martinez, Javier Banda Mireles, Honorio Banda Mireles, Jeses Francisco Escalante.
The defendants have 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 defendants. During oral argument, the defendants inquired about the production ot third-party documents. The government has represented that the third party documents, if not yet produced, will be made available to the defendants. During oral argument, the defendants also stated that they want the government to produce immigration files relating to all of the undocumented aliens involved in this action, including those who have been deported. The government asserts that information regarding witnesses will be disclosed in accordance with the District Court's trial order, and that the government would not agree to produce the immigration records of all undocumented aliens. The government need not prove that every undocumented alien involved in this matter was the subject of force or coercion (as alleged in Count 1) or harbored, concealed or shielded from detection (as alleged in Count 2). It is sufficient that the government produce information relating to all of its witnesses who were undocumented aliens, including information relating to the immigration status of those witnesses as well as any impeachment and exculpatory information. This production can take place in accordance with the District Court trial order in this matter. Finally, during oral argument, defendant Escalante requested a jury charge enforcing the government's representation that the information relating to the obtainment of labor services by way of force or coercion is not relative to the charges against Escalante. Such a request relating to jury instructions is more appropriately determined by the District Court Judge presiding over the trial in this case.
The defendants seek a bill of particulars in this case. Rule 7(f) of the Federal Rules of Criminal Procedure provides that the Court may direct the filing of a bill of particulars. Bills of particulars are to be used only to protect a defendant from double jeopardy and to enable adequate preparation of a defense and to avoid surprise at trial. U.S. v. Torres, 901 F.2d 205 (2d Cir. 1990). The government is not obligated to "preview its case or expose its legal theory." U.S. v. LaMorte, 744 F.Supp 573 (S.D.N.Y. 1990); U.S. v. Leonelli, 428 F.Supp 880 (S.D.N.Y. 1977); nor must it disclose the precise "manner in which the crime charged is alleged to have been committed" U.S. v. Andrews, 381 F.2d 377 (2d Cir. 1967).
In the instant case, the government has produced substantial discovery to the defendants, including the reports of the interviews conducted with each of the undocumented aliens, including those who have been deported. Upon review of the indictment, and upon the discovery and information already provided or promised in this case, the defendants have not demonstrated that further particularization is required to protect them from double jeopardy or to enable him to adequately prepare a defense and avoid surprise at trial.
Brady and Jencks Material
The defendants 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 it will produce all exculpatory and impeachment information in accordance with the scheduling order set be the District Court prior to trial in this case. (Docket No. 37 at page 10).
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 ...