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. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. # 251.
The defendant, Eric De Leon-Navarro, Sr., is charged in counts 1, 4 and 5 of a 13 count indictment against 23 defendants with participation in a continuing criminal enterprise, in violation of Title 21, United States Code Sections 841(a)(1), 843(b) and 846, in violation of Title 21, United States Code Section 848(a); conspiracy to possess with intent to distribute, and to distribute, five kilograms or more of a mixture and substance containing cocaine and a mixture and substance containing marijuana, in violation of Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(A) and 841(b)(1)(D), in violation of Title 21 United States Code Section 846; and possession with intent to distribute 500 grams or more of a mixture and substance containing cocaine, in violation of Title 21, United States Code Sections 841(a)(1) and 841(b)(1)(B) and Title 18 United States Code Section 2. Dkt. #1. The defendant also faces forfeiture of money pursuant to Title 21, United States Code, Sections 853(a)(1), 853(a)(2), and 853(p). Dkt. #1.
The defendant filed an omnibus motion. Dkt. #334. The government filed a response and request for reciprocal discovery. Dkt. #376. Defendant's request for dismissal of the indictment and suppression of statements and evidence obtained pursuant to Title III incercept orders will be addressed in a separate Report, Recommendation and Order.
The government represents that it is in compliance with its obligations pursuant to Rule 16 of the Federal Rules of Criminal Procedure and declares its intention to disclose any additional information subject to Rule 16 as it is discovered. Dkt. #376, pp.1-3. In accordance with Rule 12(b) of the Federal Rules of Criminal Procedure, the government notifies the defendant of its intention to introduce any evidence disclosed to defendant at trial. Dkt. #376, p.3. However, the government notes that many of defendant's requests are beyond the scope of pre-trial discovery. Dkt. #376, p.3
In reliance upon the government's representation that it has disclosed defendants' statements to law enforcement personnel pursuant to Rule 16(a)(1)(A) of the Federal Rules of Criminal Procedure, this aspect of defendant's motion is denied as moot. Defendant's request for statements of any defendant is beyond the scope of Rule 16.
In reliance upon the government's representation that it has no present intention of introducing any statement within the residual hearsay exception set forth in Rule 807 of the Federal Rules of Evidence, and its acknowledgement of its obligations should it determine the exception applicable, this aspect of defendant's motion is denied as moot.
Statements of Co-Conspirators
Rule 16 does not encompass co-conspirator statements. United States v. Percevault, 490 F.2d 126, 131 (2d Cir. 1974). The Jencks Act provides the exclusive procedure for discovering statements that government witnesses -- including co-conspirators -- have given to law enforcement agencies. In re United States, 834 F.2d 283, 286 (2d Cir. 1987). Rule 801(d)(2)(E) of the Federal Rules of Evidence does not contain a required pretrial notice and therefore, there is no requirement on the part of the government to disclose statements made by a defendant's co-conspirator during and in furtherance of the conspiracy. The admissibility of any such statements are best addressed by the trial judge. United States v. Tellier, 83 F.3d 578, 580 (2d Cir.), cert. denied, 519 U.S. 955 (1996). Accordingly, this aspect of defendant's motion is denied.
Fed. R. Crim. P. 16(a)(1)(F) & (G)
In reliance upon the government's representation that it will disclose all materials that are discoverable under Rule 16(a)(1)(F) of the Federal Rules of Criminal Procedure and that it will comply with Rule 16(a)(1)(G) of the Federal Rules of Criminal Procedure, as well as Rules 702, 703 and 705 of the Federal Rules of Evidence, and that it will cooperate with defendant to provide the chemists' credentials and methods in the event that the defendant declines to stipulate as to the reports regarding the controlled substances, as well as the qualifications of government law enforcement experts relating to vague/coded drug references and firearms, this aspect of defendant's motion is denied as moot.
In reliance upon the government's representation that it has and will disclose information relating to pretrial identification procedures and has disclosed recorded conversations and pole camera video related to this investigation, defendant's request for visual or audio identification procedures and evidence obtained from pole cameras is denied as moot. Issues of admissibility of testimony identifiying defendant's voice, as provided by Rule 901 of the Federal Rules of Evidence, are best left to the trial judge.
Law Enforcement Documents
Defendant's request for, inter alia, any police, government, or department of correctional services' investigative reports related to the charges in this indictment and criminal history information related to any defendant and any potential witnesses are denied as beyond the scope of the government's discovery obligations. Rule 16(a)(2) of the Federal Rules of Criminal Procedure specifically exempts the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case. ...