United States District Court, W.D. New York
DECISION AND ORDER
KENNETH SCHROEDER, JR. UNITED STATES MAGISTRATE JUDGE
case was referred to the undersigned by the Hon. Frank P.
Geraci, Jr., in accordance with 28 U.S.C. § 636(b)(1),
for all pretrial matters and to hear and report on
defendant, Nathaniel Myers (“the defendant”),
along with a number of co-defendants, is charged with having
violated Title 21 U.S.C. §§ 846 and 856(a)(1). Dkt.
#1. He has filed an omnibus discovery motion wherein he seeks
(1) “discovery of any items or information to which
[he] is entitled” pursuant to Rule 16(a)(1)(A)(B)(C)
& (D) of the Federal Rules of Criminal Procedure; (2)
“documents and tangible objects;” (3)
“intercepted communications;” (4) evidence
relating to the “identification” of the
defendant; (5) “disclosure of witnesses
identities;” (6) “disclosure of informant's
file;” (7) “grand jury transcripts;” (8) a
“bill of particulars;” (9) Brady, Giglio
and Jencks materials; (10) “disclosure of
evidence pursuant to Rules 404(b), 608 and 609 of the Federal
Rules of Evidence;” and (11) “preservation of
rough notes and other evidence.” The defendant also
joins in the motions filed by the co-defendants herein. He
also seeks to reserve his right to “ask the court to
hold an audibility hearing to determine whether recordings
that the government seeks to introduce at trial are
audible.” Lastly, he seeks permission “to voir
dire government experts outside the presence of the
jury.” Dkt. #152.
government has filed its opposition to the defendant's
requests and has made reciprocal requests for discovery
pursuant to Rule 16(b) of the Fed. R. Crim. P. Dkt. #161,
Rule 16 Fed. R. Crim. P. Discovery
on the government's representation that “it [has]
provided all material presently within its possession that is
within the purview of Rule 16, ” the defendant's
request is denied as being moot. See Dkt. #161,
Defendant's Demand for “Documents and Tangible
on the government's representation that it “has
made available all tangible objects obtained pursuant to
search warrants or otherwise, the defendant's request is
denied as moot. See Dkt. #161, ¶ 4.
Defendant's Request Regarding “Intercepted
defendant seeks “materials [that] are necessary to
challenge the necessity of the wiretaps and whether or not
there are any Franks issues or fruit of the
poisonous tree issues as well as whether or not minimization
and sealing requirements were properly followed.” Dkt
#152, ¶ 28. The government has responded that it has
provided the wire interception applications, affidavits,
orders filed and intercepted wire communications and draft
transcripts of these communications to the defendant.
See Dkt. #161-1, Exhibits A and B attached thereto.
As a result, the defendant's request is denied as being
Defendant's Request for Evidence Relating to the
Identification of the Defendant
defendant has not established that any form of identification
procedure was utilized by the government for purposes of
making an “identification” of the defendant.
Although the government has not directly responded to this
request of the defendant, it is this Court's
understanding that no such identification procedure was
utilized by the government for purposes of making an
identification of the defendant. Therefore, this request of
the defendant is denied as being moot.
Defendant's Request for Disclosure of Witness
defendant has moved for disclosure of the identity of
witnesses who will testify at trial, but has offered no
“particularized showing of need” for same.
See United States v. Hennings, No. 95-CR-0010A, 1997
WL 714250, at *13. Fed.R.Crim. P. 16 does not require such
disclosure, and because there has been no showing of need,
the motion is denied. See id.; United States v.
Bejasa, 904 F.2d 137, 139 (2d Cir.), cert.
denied, 498 U.S. 921 (1990); United States v.
Johnson, No. 92-CR-39A, 1994 WL 805243 (W.D.N.Y. May 26,
1995), aff'd, 108 F.3d 1370 (1997); United
States v. Pastor, 419 F.Supp. 1318, 1320 (S.D.N.Y.
Defendant's Request for Disclosure of Informant's
defendant requests that the government be directed to
identify all informants on whom the government has relied or
will rely in any way in its investigation and/or prosecution
of this case and disclosure of information received from
informants. However, the defendant has failed to sufficiently
state a basis for requiring the disclosure of this
information or “that the testimony of the informant
would [be] of even marginal value to the defendant's
case.” As a result, the holding of the Court of Appeals
for the Second Circuit in United ...