United States District Court, W.D. New York
DECISION AND ORDER
HUGH B. SCOTT, Magistrate Judge.
Before the Court are the defendant's following motions: omnibus motion for various types of pretrial relief (Docket No. 40); motion to suppress identification (Docket No. 51) and motion to dismiss the indictment (Docket No. 52).
On April 13, 2013, the Grand Jury for the Western District of New York issued the Second Superseding Indictment charging Clifford Smith ("Smith") with conspiracy to commit bank robbery [Count 1], bank robbery, the entry of a bank to commit larceny, and bank larceny relating to the robbery of a HSBC bank on September 29, 2011 [Counts 2-4]; bank robbery, the entry of a bank to commit larceny, and bank larceny relating to the robbery of a HSBC bank on October 21, 2011 [Counts 5-7]; bank robbery, the entry of a bank to commit larceny, and bank larceny relating to the robbery of a HSBC bank on October 25, 2011 [Counts 8-10]; bank robbery, the entry of a bank to commit larceny, and bank larceny relating to the robbery of a HSBC bank on November 8, 2011 [Counts 11-13]; brandishing a firearm during a crime of violence [Count 14]; and tampering with a witness [Count 15]. (Docket No. 36).
The defendant motion seeks various types of pretrial discovery. The government has produced substantial discovery in this case. The defendant specifically requested notification of any identification procedures used in this case. (Docket No. 40 at page 14). The government represented that it has provided such notice (Docket No. 43 at page 15). The parties have not identified outstanding discovery issues.
Rule 12 Notice
The defendant also requests notice under Rule 12. (Docket No. 40 at page 4). The government's response does not reflect of such notice has been provided. In any event, if not already provided, the government shall provide notice to the defendants pursuant to Rule 12.
Exclusion of Non-Testifying Co-Conspirators
The defendant seeks to preclude introduction of any statements made by non-testifying co-conspirators. The Jencks Act provides the exclusive procedure for discovering statements that government witnesses have given to law enforcement agencies. U.S. v. Covello , 410 F.2d 536, 543 (2d. Cir.) cert. denied 396 U.S. 879 (1969). The defendant is not entitled to a pretrial hearing to determine the admissibility of co-conspirator statements under U.S. v. James , 590 F.2d. 575 (5th Cir. 1979). James hearings are not required in the Second Circuit. Instead, in this circuit the judge presiding over the trial of the case makes a ruling pursuant to U.S. v. Geaney , 417 F.2d 1116 (2d Cir. 1969) during the trial regarding the admissibility of the statements. See also U.S. v. Feola , 651 F.Supp. 1068 (SDNY 1987), aff'd 875 F.2d 857 (2d Cir. 1989, cert. denied 493 U.S. 834 (1989); U.S. v. Margiotta , 688 F.2d 108 (2d Cir. 1982) cert. denied 461 U.S. 913 (1983); U.S. v. Mastropieri , 685 F.2d 776 (2d Cir. 1982) cert. denied 459 U.S. 945 (1982); U.S. v. Persico , 621 F.Supp. 842 (SDNY 1985) aff'd 774 F.2d 30 (2d Cir. 1985).
Similarly, challenges to the admissibility of a statement under Bruton v. United States , 391 U.S. 123 (1968) are more appropriately determined by the presiding District Judge at trial.
Brady and Jencks Act Material
The defendant 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 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. (Docket No. 43 at page 18). Neither the Supreme Court, nor the Second Circuit, 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. ...