The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court are the respective omnibus motions filed on behalf of Wymiko Anderson (Docket No. 44); Melvin Calhoun (Docket Nos. 66 and 67); Steven Butler (Docket No. 68); Tajia Anderson (Docket No. 69); Theresa Anderson (Docket No. 70) and Anquensha Hodge (Docket No. 75). In addition, the government has moved to strike certain language from the Indictment (Docket No. 33).*fn1
In an indictment dated January 18, 2012, the Grand Jury for the Western District of New York alleged that the nine defendants in this case operated an illicit drug trafficking organization ("the Anderson Drug Trafficking Organization"). (Docket No. 1 at ¶¶ 1-11). Theresa Anderson was charged with engaging a continuing criminal enterprise in violation of 21 U.S.C. 848(a) [Count 1]. All nine defendants were charged with conspiracy to possess and distribute cocaine base in violation of 21 U.S.C. §846 [Count 2]. Theresa Anderson and Dion Anderson were also charged with maintaining a premises for the purpose of manufacturing, distributing and using cocaine base in violation of 21 U.S.C. 856(a)(1) and 18 U.S.C. §2 [Counts 3 and 7]. Theresa Anderson was further charged separately in three additional counts of maintaining a premises for the purpose of manufacturing, distributing and using cocaine base in violation of 21 U.S.C. 856(a)(1) [Counts 4-6]. In Counts 8 through 33, the respective nine defendants are charged with possession of cocaine base with the intent to distribute on various dates between February 19, 2010 and October 31, 2011 in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2 [Counts 8-33]. Finally the indictment includes a forfeiture allegation seeking forfeiture of more than $1,250,000, 15 separate pieces of real property and substitute assets pursuant to 21 U.S.C. §853(a)(1), §853(a)(2) and §853(p). (Docket No. 1 pages 13-16).
In their respective motions, the defendants identified several general categories of discovery sought in the respective motions. The government has represented that it has provided the voluminous discovery. The parties have not identified any outstanding discovery issues at this time. If there are additional specific discovery requests outstanding, the defendants are granted leave to make further application for relief.
Pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure, the defendants have requested that the government give notice of its intention to use at trial any evidence which is discoverable under Rule 16 in order that the defendants have an opportunity to move to suppress under Rule 12 (b)(3)(C). To the extent the government has not already done so, the government is directed to provide such notice to the defendants.
Brady & Jenks Act Material
The defendants seek 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 defendants 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 Giglio v. United States, 405 U.S. 150 (1972), as well as the Jencks Act. The government represents that it will provide this material as directed in the District Court's trial order.
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 produced prior to trial); U.S. Biaggi, 675 F.Supp 790 (S.D.N.Y. 1987)(information bearing on a witness' credibility may be turned over at the same time as [Jencks Act] materials); U.S. V. Feldman, 731 F.Supp 1189 (S.D.N.Y. 1990)(it is sufficient for the government to disclose Brady impeachment materials along with [Jencks Act] materials).
The Jencks Act relates only to "statements" made by government witnesses. Such statements may include inconsistencies which make them useful for impeachment purposes, and thus, subject them to disclosure under Brady principles. To this extent, it has been suggested that the constitutional requirements underlying Brady could act to modify the Jencks Act. U.S. v. Campagnuolo, 592 F.2d 852, 860 (5th Cir. 1979). But see U.S. v. Presser, 844 F.2d 1275 (6th Cir. 1988)(the government may not be compelled to pretrial disclosure of Brady or Jencks material). The record in this case does not reflect whether any of the materials withheld by the government may be considered both Brady and Jencks material. Certainly "impeachment Brady" material may include several items which are not considered "statements" under the Jencks Act.
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." U.S. v. Percevault, 490 F.2d 126 (2d Cir. 1974); U.S. V. Green, 144 F.R.D. 631 (W.D.N.Y. 1992).
In the instant case, and while balancing all of the above, the Court concludes that disclosure of such inculpatory and 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 defendants to ...