The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is defendant's omnibus motion (Docket No. 13) seeking notice of statements; exclusion of statements made by non-testifying co-conspirators; filing a Bill of Particulars; disclosure of identity of informants; discovery; production of Jencks Act materials; production of Brady material; production of Federal Rules of Evidence 404(b), 608, 609 materials; preservation of evidence; and access to the Grand Jury minutes (id.). During oral argument, defendant stressed that the Court consider her motion for a Bill of Particulars. Defendant also seeks a voir dire of the Government's expert witnesses (id., Def. Atty. Decl. ¶¶ 105-10) and an audibility hearing (id. ¶¶ 111-12); both of these items are better decided by the Judge with plenary jurisdiction and the motions as to those forms of relief are deferred to the District Judge.
The Government responded (Docket No. 17), moved for reciprocal discovery (id. at 26-27). These motions were argued on July 11, 2012 (text minute entry, Jul. 11, 2012; cf. Docket No. 15) and the motions were deemed submitted as of July 11, 2012.
Defendant is charged with conspiracy, in violation of 18 U.S.C. § 371; three counts of false swearing in an immigration matter, in violation of 18 U.S.C. § 1546(a), during three different occasions; making a false statement, in violation of 18 U.S.C. §§ 1001(a)(3) and 2; and unlawful procurement of naturalization, in violation of 18 U.S.C. § 1425(a) (Docket No. 1, Indict.). These steps are allegedly defendant's attempts, as a native of Kenya (id. ¶ 12), to stay in this country under false pretenses. Defendant entered the United States on a visitor visa (see id.). The Indictment alleges that defendant conspired to defraud the United States to impede the fair and objective evaluation of an application for conditional residence, permanent residence, and naturalization, to enter a marriage to evade immigration laws, and to make and use false documents (id. ¶ 3). Defendant allegedly conspired to enter into a sham marriage in order to obtain naturalization in the United States (see id. ¶ 14). Then defendant allegedly made false statements regarding this marriage to immigration officials from 2006 to 2010, filing the various interim and permanent residence and naturalization documents that purport to a valid marriage by defendant to a United States citizen (id. Counts 2-6), David Owens (Docket No. 17, Gov't Response at 2).
According to the Government's response (Docket No. 17, Gov't Response at 1-6), defendant obtained her United States naturalization status by fraud, by enticing a United States citizen to enter into a marriage for the sole purpose of aiding defendant's quest for United States citizenship rather than a bona fide desire to live as husband and wife (id. at 1-2). Investigation by the Department of Homeland Security, Bureau of Immigration and Customs Enforcement ("ICE") revealed a friend of defendant's who stated that, in 2004, defendant asked if her friend knew of someone willing to marry her so that she could gain status in the United States and that defendant offered to pay that husband to marry her (id. at 5). The friend replied that she knew Owens and that the friend asked if Owens was interested in marrying defendant for money, and the friend arranged a meeting between defendant and Owens (id.). The friend stated that she was present at Buffalo City Hall on June 30, 2004, when Owens and defendant wed (id.). Owens told ICE agents that the marriage was solely to allow defendant to obtain status in this country and for Owens to be paid $5,000 for the sham marriage (id. at 6). Owens stated that he never lived with defendant but that she put some of her clothes in his closet in case Immigration inspected his house (id.). Owens stated that any documents that were filed regarding their marriage were false, and that he and defendant lied during Immigration interviews (id.). Owens then told investigators that defendant paid him $500 more for cooperating in their divorce in January 2009 (id.) although she attested in a Form N-400 that she remained lawfully married to Owens and appeared in a January 2010 interview claiming that she was still married to Owens (id. at 4).
I. Defendant's Statements
Defendant first asks for the Government to disclose her statements that the Government
intends to offer, reserving the right to move to suppress such statements (Docket No. 13, Def. Atty. Decl. ¶ 11). The Government responds that it has no written or recorded statements of defendant following her arrest but has provided to defendant her statements during the naturalization process (Docket No. 17, Gov't Response at 7-8), the statements of others made in support of the naturalization application, Owens' statement, and will provide defendant's statements in another investigation (id. at 8). This satisfies defendant's present request.
II. Non-Testifying Co-Conspirators
Defendant next seeks to bar the admission of statements of non-testifying co-conspirators and co-defendants (Docket No. 13, Def. Atty. Decl. ¶ 12), see Bruton v. United States, 391 U.S. 123 (1968). Since defendant is the sole defendant in this case, the Government concludes that this request is not relevant here (Docket No. 17, Gov't Response at 8). The Government adds that, through voluntary discovery, defendant has received the statements of co-conspirators, but statements not made in the course of the conspiracy. Statements in response to the ICE investigation and prosecution prior to trial will be produced pursuant to the Jencks Act. (Id. at 8-9.)
Defendant has the relevant statements from co-defendants to make a Bruton ...