United States District Court, S.D. New York
OPINION & ORDER
G. SCHOFIELD, UNITED STATES DISTRICT JUDGE
Amaury Torres and Ian Rosso (collectively,
“Defendants”) move to suppress evidence recovered
from allegedly unconstitutional searches of their cell phones
and for various types of pre-trial discovery. Torres also
moves for a bill of particulars. For the reasons stated
below, with one exception, Defendants' motions are
Defendants' Motions to Suppress Cell Phone Evidence
Defendant -- Torres and Rosso -- moves to suppress the
evidence recovered from the allegedly unconstitutional search
of his respective cell phone. The Government represents that
it does not intend to offer such evidence at trial.
Therefore, Defendants' motions to suppress are denied as
moot. See United States v. Shaw, No. 16 Cr. 642,
2017 WL 1380598, at *3 (S.D.N.Y. Apr. 13, 2017) (denying
motion to suppress under Miranda v. Arizona, 384
U.S. 436 (1966), as moot “in light of the
government's representation that it will not introduce
any of the disputed statements”); United States v.
DiMarco, No. 12 Cr. 205, 2013 WL 444764, at *13
(S.D.N.Y. Feb. 5, 2013) (denying motion to suppress evidence
recovered from allegedly unconstitutional cell phone search
as moot “because the Government does not seek to admit
any evidence obtained” from it).
Defendants' Motions for Disclosure of 404(b) Evidence
motion to compel the Government to disclose Rule 404(b)
evidence at least 21 days before trial is granted. Federal
Rule of Evidence 404(b) requires that the Government provide
“reasonable notice of the general nature of any such
evidence that the prosecutor intends to offer at
trial.” It does not define “reasonable
notice.” See Fed. R. Evid. 404(b).
“Courts in this Circuit have held that two or three
weeks notice is reasonable[, and] a longer period may be
appropriate, depending on the circumstances.”
United States v. Bonventre, No. 10 Cr. 228, 2013 WL
2303726, at *9 (S.D.N.Y. May 28, 2013) (quoting United
States v. Saleh, No. 10 Cr. 623, 2011 WL 1210207, at *8
(S.D.N.Y. Mar. 24, 2011)), aff'd in part, 646
Fed. App'x 73 (2d Cir. 2016) (summary order)).
Defendants' application is granted. See, e.g.,
United States v. Brown, No. 14 Cr. 509, 2016 WL
4734667, at *3 (S.D.N.Y. Sept. 9, 2016) (requiring disclosure
of Rule 404(b) evidence 30 days prior to trial); United
States v. Zemlyansky, 945 F.Supp.2d 438, 484 (S.D.N.Y.
2013) (denying motion for immediate production of Rule 404(b)
evidence but requiring disclosure 30 days before trial, as
offered by the Government).
Defendants' Motions for Disclosure of
Brady/Giglio/Jencks Act Material
seeks an order compelling the Government to disclose material
under Brady v. Maryland, 373 U.S. 83 (1963), and
Giglio v. United States, 405 U.S. 150 (1972), at
least 60 days before trial. Rosso seeks the same, as well as
the disclosure of Jencks Act material at least 21 days before
trial. Both requests are denied.
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of
the good faith or bad faith of the prosecution.”
Brady, 373 U.S. at 87; accord Wearry v.
Cain, 136 S.Ct. 1002, 1006 (2016). Giglio
clarified that Brady material includes
“[i]mpeachment evidence.” United States v.
Bagley, 473 U.S. 667, 676 (1985) (citing
Giglio, 405 U.S. at 154). “[A]s a general
rule, Brady and its progeny do not require immediate
disclosure of all exculpatory and impeachment material upon
request by a defendant.” United States v.
Coppa, 267 F.3d 132, 146 (2d Cir. 2001). Brady
material must be disclosed “in time for its effective
use at trial.” United States v. Singletary,
No. 16 Cr. 595, 2017 WL 1190963, at *1 (2d Cir. 2017)
(summary order) (quoting Coppa, 267 F.3d at 142).
the Jencks Act, “no statement or report in the
possession of the United States which was made by a
Government witness or prospective Government witness (other
than the defendant) shall be the subject of subp[o]ena,
discovery, or inspection until said witness has testified on
direct examination in the trial of the case.” 18 U.S.C.
§ 3500. “The practice in this District is to
provide both Giglio and Jen[c]ks Act material at the
same time, which should be at least one day prior to the
testimony of the witness.” United States v.
Reyes, 417 F.Supp.2d 257, 261 (S.D.N.Y. 2005);
accord United States v. Wey, No. 15. Cr. 611, 2017
WL 237651, at *23 (S.D.N.Y. Jan. 18, 2017) (internal
quotation marks omitted) (Giglio and Jencks Act
material is “typically produced a week or two before
the start of trial, depending on the complexity of the
case.”). “Usually, impeachment material may be
used effectively even if it is provided during the
trial.” United States v. Vondette, 248
F.Supp.2d 149, 156 (E.D.N.Y. 2001) (citing United States
v. Nixon, 418 U.S. 683, 701 (1974)).
“[Giglio] material does not ordinarily require
any independent investigation to use it effectively at
trial.” United States v. Espinal, 96 F.Supp.3d
53, 66 (S.D.N.Y. 2015) (quoting United States v. Jacques
Dessange, Inc., No. 99 Cr. 1182, 2000 WL 280050, *9
(S.D.N.Y. Mar. 14, 2000)). Because Defendants have not
identified any special circumstances necessitating early
disclosure, their motions to compel the early production of
Giglio and Jencks Act material are denied. See
United States v. Canter, 338 F.Supp.2d 460, 462
(S.D.N.Y. 2004) (“Only where the complexity of the case
is exceptional and the amount of evidentiary materials [the
Government] produces is extremely voluminous may the Court
order the Government to disclose such materials well in
advance of trial.”).
Brady material, the Government represents that it
does not have any, is not aware of any, and will
“promptly” produce any of which it becomes aware.
Neither Defendant suggests that the Government has or is
aware of any Brady material. As the Government
recognizes its continuing obligation under Brady,
and there is no suggestion of withholding such evidence, an
order is unnecessary at this time. See United States v.
Carrington, No. 2 Cr. 897, 2002 WL 31496199, at *3
(S.D.N.Y. Nov. 7, 2002); United States v. McDonald,
No. 1 Cr. 1168, 2002 WL 2022215, at *1 (E.D.N.Y. Aug. 6,
Defendants' Motion for Early Disclosure of Witnesses
motion for disclosure of Government witnesses at least 21
days before trial is denied. The Government is not required
to provide defense counsel with its witness list prior to
trial. Fed. R. Crim. Proc. 16. “A district court has
discretion to compel pretrial disclosure of . . . government
witnesses, but it should grant a request only if the
defendant makes ‘a specific showing that disclosure is
both material to the preparation of his defense and
reasonable in light of the circumstances surrounding his
case.'” United States v. Nachamie, 91
F.Supp.2d 565, ...