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United States v. Rivera

United States District Court, S.D. New York

May 8, 2017

CARLOS RIVERA, et al., Defendants,

          OPINION & ORDER


         Defendants 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 denied.

         I. DISCUSSION

         A. Defendants' Motions to Suppress Cell Phone Evidence

         Each 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).

         B. Defendants' Motions for Disclosure of 404(b) Evidence

         Defendants' 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).

         C. Defendants' Motions for Disclosure of Brady/Giglio/Jencks Act Material

         Torres 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.

         “[T]he 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).

         Under 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.”).

         Regarding 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, 2002).

         D. Defendants' Motion for Early Disclosure of Witnesses

         Defendants' 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, ...

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