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 Title 28, United States Code, Section 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #3.
The defendant, Eric Williams, is charged in nine counts of a 23 count superseding indictment returned against 20 defendants with violations of Title 21, United States Code, Section 841 and Title 21, United States Code, Section 846. Dkt. #2. The defendant also faces a forfeiture claim pursuant to Title 21, United States Code, Sections 853(a)(1) and 853(a)(2). Dkt. #2.
Presently pending before this Court is defendant's motion for pretrial disclosure of evidence pursuant to Rules 404(b) and 609 of the Federal Rules of Evidence; disclosure of informants; retention of government agents' notes; disclosure of Brady material; joinder in co-defendants' motions; a bill of particulars; and leave to file additional motions Dkt. #111.
The government has filed its response to the foregoing motions, as well as a motion for reciprocal discovery. Dkt. #116.
Rules 404(b) and 609 of the Federal Rules of Evidence
The defendant seeks an order directing the government to divulge any and all specific instances of other crimes, wrongs or acts it intends to use at trial pursuant to Rule 404(b) of the Federal Rules of Evidence and seeks an advance ruling that the government may not use prior convictions or proof of the prior commission of other crimes, wrongs, or acts to impeach the defendant at trial. Dkt. #111, p.2.
The government responds that it expects to timely disclose evidence that might fall within the ambit of Rules 404(b), 608(d) and 609 of the Federal Rules of Evidence, but argues that there is no basis for early disclosure of Rule 404(b) evidence. Dkt. #116, pp.1-2. As a preliminary matter, however, the government notifies the defendant that it intends to introduce at trial all prior criminal conduct acts or wrongs to show proof of defendant's motive, opportunity, intent, preparation, plan, knowledge, identity, and the absence of mistake or accident. Dkt. #116, p.3. The government notes that it is under no obligation to notify defendant of impeachment evidence pursuant to Rule 608 of the Federal Rules of Evidence and states that it is currently unaware of any evidence within the scope of Rule 609. Dkt. #116, pp.2-3.
Rule 404(b) only requires that "the prosecution. . . provide reasonable notice in advance of trial. . . of the general nature of any such evidence it intends to introduce at trial" (emphasis added). This has been done, and as a result, defendant's request on this issue is denied as moot. Rule 609 of the Federal Rules of Evidence does not contain a required pretrial notice, therefore this aspect of defendant's motion is denied. The issue of admissibility of evidence pursuant to Rules 404(b) and 609 is best left to the determination of the trial judge at the time of trial.
The defendant seeks disclosure of the identity of any informants upon whom the government has relied, including those used in the investigation and those anticipated to testify at trial. Dkt. #111, p.3.
The government responds that such disclosure is unwarranted at this time. Dkt. #116, pp.4-6.
Disclosure of the identity or address of a confidential informant
is not required unless the informant's testimony is shown to be
material to the defense. United States v. Saa , 859
F.2d 1067, 1073 (2d Cir.), cert. denied , 489 U.S.
1089 (1988); see Roviaro v. United States , 353
U.S. 53, 59 (1957) (government generally is not required to disclose
identity of confidential informants). "Speculation that disclosure of
the informant's identity will be of assistance is not sufficient to
meet the defendant's burden; instead the district court must be
satisfied, after balancing the competing interests of the government
and the defense, that the defendant's need for disclosure outweighs
the government's interest in shielding the informant's identity."
United States v. Fields , 113 F.3d 313, 324 (2d Cir.), cert.
denied , 522 U.S. 976 (1997). It is not
sufficient that the informant was a participant and witness to the
crime. Saa , 859 F.2d at 1073.
In the instant case, defendant has offered no basis for the disclosure of identifying information relating to government informants. Therefore, this ...