Opinion
00 Cr. 398 (JFK)
May 24, 2001
MEMORANDUM OPINION and ORDER
Background
The indictment was filed on April 13, 2000. The one count charges Mauricio Gomez and three co-defendants with conspiring to violate the narcotics laws of the United States, in violation of Title 21, United States Code, Sections 812, 841 and 846.
Defendant, Mauricia Gomez, moves for: (a) a bill of particulars; (b) identification of any materials that the Government has withheld on grounds of privilege; (c) immediate production of Brady material; (d) disclosure of the identity of confidential witnesses, the Government's trial witnesses and an opportunity to interview them; (3) early disclosure of "other crimes" evidence; and (f) identification of all documents and audiotapes that the Government intends to introduce in its case-in-chief. Gomez also moves for a hearing relative to the admissibility of statements allegedly made by him following his arrest.
Discussion
The Government correctly points out that Local Criminal Rule 16.1 provides:
"No motion addressed to a bill of particulars or answers or to discovery and inspection shall be heard unless counsel for the moving party files with the court simultaneously with the filing of the moving papers an affidavit certifying that said counsel has conferred with counsel for the opposing party in an effort in good faith to resolve by agreement the issues raised by the motion without the intervention of the court and has been unable to reach such an agreement."
Gomez' counsel has made no effort to comply with the rule and on this ground alone the bill of particulars and discovery aspects of this motion are denied. But, on the merits, there is no reason to order a bill of particulars.
The indictment provides sufficient information to advise Gomez of the charges against him and to allow him to prepare a defense. He is charged with participating in the narcotics conspiracy set forth in the one count of the indictment. The indictment charges that the object of the conspiracy was the distribution and possession with the intent to distribute at least 5 kilograms of cocaine. The indictment charges that Gomez and his co-conspirators conspired to import kilogram quantities of cocaine from South America into the United States concealed in crates of bananas.
The conspiracy is charged to have lasted for approximately six months (August 1996 through February 1997). The indictment lists two overt acts alleged to have been committed by Gomez. (Indictment ¶¶ 1-3). The indictment charges that on or about February 7, 1997, Gomez discussed with coconspirator Alejandro Hurtado arrangements for the delivery of a shipment of cocaine concealed in a container of bananas. (Indictment ¶ 3(d)). The indictment further alleges that on or about February 10, 1997, Gomez paid a confidential informant $2,500, to be used as rent for a warehouse that was to store the cocaine once it arrived in the United States (Indictment ¶ 3(e)).
Additionally, the Government has provided Gomez with many cassette tapes of recorded telephone calls, many of which Gomez took part in. He has received English translations and been given access to dozens of items of physical evidence. These materials provide Gomez more than sufficient notice of the charges against him.
The Government points out that it has given all the defendants complete discovery, and has supplemented the discovery as additional information has come to light. The Government states it will continue to do so. Gomez' motion for additional discovery is denied. Moreover, no material has been withheld on grounds of privilege.
The Government recognizes its "continuing obligation" under Brady v. Maryland, 373 U.S. 83(1963) and is directed to produce any such evidence, if any is discovered, sufficiently in advance of trial to apprise all defendants so they may take appropriate measures.
The rule in this Circuit is that the district court lacks the power to mandate early production of Jencks material. See, United States ex rel. Lucas v. Regan, 503 F.2d 1, 3 n. 1 (2d Cir. 1974); In re United States, 834 F.2d 283, 287 (2d Cir. 1987); United States v. Ortiz-Montoya, 1995 WL 37841, *1 (S.D.N.Y. Jan. 31, 1995); United States v. McGuinness, 764 F. Supp. 888, 896 (S.D.N.Y. 1991).
The Government has stated it will produce 3500 material and Giglio material the day before a witness testifies. Should more time be reasonably required to review such material, a recess will be granted before the witness's testimony. This is sufficient protection for the defense.
The law is that "disclosure of the identity or address of a confidential informant is not required unless the informant's testimony is shown to be material to the defense." United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988), cert. denied, 489 U.S. 1089(1989);accord United States v. Bejasa, 904 F.2d 137 (2d Cir.), cert. denied, 498 U.S. 921(1990); United States v. Gallo, 1999 WL 9848, at *7 (S.D.N.Y. January 11, 1999); James, 1995 WL 686734, *2; see also United States v. Wray, 763 F. Supp. 752, 753-54 (S.D.N.Y. 1991), aff'd, 23 F.3d 396 (2d Cir. 1994).
There has been no such showing here. Gomez' assertions in this regard are wholly conclusory. He has no right to an order relative to the interview of these witnesses before trial.
Gomez seeks disclosure of Federal Rule of Evidence 404(b), other crimes evidence. The Court directs that notice of intention to introduce such evidence be given two calendar weeks before jury selection commences.
The requests for co-conspirator statements and a witness list are denied see p. 2 and 3 supra.
The request for the defense to examine physical evidence seized was complied with on July 2, 2000. If there is a real need for the defendant to see this evidence in person, this can be arranged to be done at a conference in open court under appropriate safeguards after counsel has viewed it.
The motion for a pretrial hearing relative to the admissibility of the alleged statement of Gomez is denied. He has made no showing requiring such a hearing and has made no effort to do so. No affidavit from Gomez was ever filed relating to his statement or the circumstances surrounding the making of same.
Other than indicated above, Gomez' motion is denied in all respects. If other defendants wish to join in this motion, or Gomez wants to join in their motions, if any are filed each defendant must specifically so indicate, specifying the part or parts of the motion there is a desire to join in.
SO ORDERED.