Opinion
01 Cr. 1034 (SWK)
March 13, 2002
MEMORANDUM OPINION AND ORDER
Defendant Alex Rosario ("Rosario") moves for the following relief: (1) suppression of identification evidence; and (2) production of various items of discovery. For the reasons set forth below, the motion is reserved in part, granted in part and denied in part.
BACKGROUND
On or about November 2, 2001, a grand jury in the Southern District of New York returned a one count Indictment alleging conspiracy to commit bank fraud. Specifically, the Indictment alleges that on or about September 10, 1999, Rosario conspired to defraud a financial institution by fraudulently depositing a check issued by the New York City Office of Child Support Enforcement into a Chase Manhattan Bank account held jointly in the names of Rosario and another person, and that on or about September 13, 1999, two withdrawals, each in the amount of $400, were made from this account. On or about November 27, 2001, the Government provided an initial disclosure of discovery pursuant to Federal Rule of Criminal Procedure 16. The Government supplemented the initial disclosure on three occasions; on or about November 30, 2001, December 14, 2001, and January 15, 2002.
DISCUSSION
I. Suppression of Eyewitness Identification
Rosario seeks to preclude the witness who identified him during an interview conducted by the United States Postal Inspection Service from making an in-court identification. Rosario asserts that the photo array shown to the witness was "impermissibly suggestive." Affirmation of Douglas E. Grover, Esq., January 25, 2002, ("Grover Aff.") ¶ 14. During the challenged photo array, a Postal Inspector presented the witness with a photo of Rosario after the witness had described an overweight individual engaging in certain activities with Orlando Castro ("Castro"), an alleged co-conspirator. See Government's Memorandum of Law in Opposition to Defendant's Pre-Trial Motion ("Gov't. Memo.") at 2-4. Upon seeing the single photo of Rosario, the witness positively identified him. See id. The Postal Inspector then asked whether the witness knew the name of the identified person, and the witness further identified Rosario by his first name. See id. The witness was not shown any other photos.
"The linchpin for admissibility of identification testimony is reliability." United States v. Maldonado-Rivera, 922 F.2d 934, 973 (2d Cir. 1990) (citing Manson v. Brathwaite, 432 U.S. 98, 106-07 n. 9 (1977)). In evaluating the constitutional permissibility of in-court identification testimony based on an allegation that the out-of-court identification procedures involving a photo array were unduly suggestive, the Court must apply a two-step analysis. See United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994). The first inquiry is whether "the pretrial identification procedures were unduly suggestive of the [defendant's] guilt." United States v. Maldonado-Rivera, 922 F.2d at 973. To determine whether the procedures were unduly suggestive, the factors to consider are "the size of the array, the manner of presentation by the officers, and the contents of the array."United States v. Thai, 29 F.3d 785, 808 (2d Cir. 1994)
If the pre-trial procedures were unduly suggestive, the second inquiry is whether the in-court identification testimony is admissible because such testimony is independently reliable, and not the product of the earlier suggestive procedures. See United States v. Maldonado-Rivera, 922 F.2d at 973. To determine independent reliability, the Court must consider several factors, including "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the time between the crime and the confrontation."Neil v. Biggers, 409 U.S. 188, 199-200 (1972); United States v. Concepcion, 983 F.2d 369, 377 (2d Cir. 1992). However, "[a] good or poor rating with respect to any one of these factors will generally not be dispositive." United States v. Maldonado-Rivera, 922 F.2d at 377. Instead, the five factors must be assessed under the totality of the circumstances. See United States v. Tortora, 30 F.3d 334, 338 (2d Cir. 1994).
With respect to the propriety of the out-of-court identification, the Court finds that the pre-trial identification procedures were unduly suggestive because the photo array consisted of only a single photograph. See United States v. Lumpkin, 192 F.3d 280, 288 (2d Cir. 1999). However, since improper pre-trial identification procedures do not automatically necessitate the exclusion of a witness' in-court identification testimony, the Court must determine whether such testimony is independently reliable.
Rosario contends that the Government has provided him with only a "scant description of the witness and his or her relationship to Castro and/or the defendant . . ." and "no information about the witness's [sic] opportunity to observe the defendant or the degree of attention he or she paid to the defendant." Reply Letter from Douglas E. Grover, Esq., March 1, 2002, at 3. The Government describes the witness as observing Rosario on two occasions prior to making the out-of-court identification; the first time was approximately four months before the out-of-court identification, while the second time was approximately six weeks before the out-of-court identification. See Gov't. Memo. at 4. The Government, however, fails to offer any evidence regarding the circumstances surrounding the witness' two earlier observations of Rosario. Instead, the Government represents that the in-court identification testimony is independently reliable because, in addition to the witness observing Rosario on two other occasions, the witness correctly identified the make of Rosario's car, and accurately identified Rosario by his first name.See Gov't. Memo. at 8.
The Government contends that the determination of whether the identification testimony is independently reliable and, thus, admissible "should be reserved for decision at trial, and that a pre-trial hearing, as requested by the defendant, is unnecessary." See Gov't. Memo. at 9. However, a pre-trial hearing is the most favored approach to determine the admissibility of in-court identification testimony. See Watkins v. Sowders, 449 U.S. 341, 349 (1981); United States v. Archibald, 734 F.2d 938, 940-41 (2d Cir. 1984) (holding that it is preferable for the trial court to conduct a pre-trial hearing on the disputed identification issue); United States v. Santiago, 174 F. Supp.2d 16, 31 (S.D.N.Y. 2001). Therefore, the Court will convene an pre-trial hearing to determine the admissibility of the in-court identification testimony.
II. Discovery Requests
A. Rule 16 Material
Rosario seeks certain items of discovery pursuant to Federal Rule of Criminal Procedure 16. Specifically, Rosario seeks the following from the Government: (1) the defendant's own statements, including all investigational material created as a result of the statements; (2) physical or mental examinations of the defendant; and (3) the scientific tests or analysis of the defendant's handwriting exemplars. See Grover Aff. ¶¶ 15-19. The Government submits that it has already provided Rosario with evidence of some of the handwritten notes memorializing Rosario's prior statements, reports of handwriting and fingerprint analyses, fingerprint impressions of the defendant and of a co-conspirator, and handwriting exemplars taken from the defendant. See Gov't. Memo. at 22. Rosario, however, requests that the Court order the Government to disclose the written notes, if any exist, of statements he made when he was served with a grand jury subpoena for handwriting exemplars. See Grover Aff. ¶ 17.
"Rule 16 obliges the government to produce any relevant written or recorded statements made by the defendant, giving a defendant virtually an absolute right to his own statements." United States v. Thomas, 239 F.3d 163, 166-67 (2d Cir. 2001) (internal quotations and citations omitted). Accordingly, the Court orders the Government to furnish Rosario with a copy of any statements he made when he was served with a grand jury subpoena, if such statements exist, within ten days of the date of this opinion. Additionally, the Court declines to order the production, beyond what the Government has already provided, of any other requested Rule 16 materials.
B. Witness List
Rosario requests that the Court order the Government to provide the names of witnesses who identified the defendant. See Grover Aff. ¶ 15 (8). However, Rule 16 "does not require the Government to furnish the names and addresses of its witnesses in general." United States v. Bejasa, 904 F.2d 137, 139 (2d Cir. 1990), cert. denied 498 U.S. 921 (1990). Although the Court has the power to compel pre-trial disclosure in appropriate cases, the defendant must first make a "specific showing that disclosure [is] both material to the preparation of [the] defense and reasonable in light of the circumstances surrounding [the] case. . . ." Id. at 139-140 (internal quotation omitted). Here, Rosario has failed to make any specific showing of need for pre-trial disclosure of a witness list. Accordingly, the request for production of a witness list is denied.
C. Co-Conspirator Statements
Rosario seeks the disclosure of statements of others, including co-conspirator statements, the Government may hold against him under Federal Rule of Evidence 801(d)(2). See Grover Affirmation ¶ 19. With respect to such statements, the Second Circuit held that "Rule 16 (a) simply does not encompass these statements, nor does the Jencks Act permit their disclosure over the objection of the government." United States v. Percevault, 490 F.2d 126, 131 (2d Cir. 1974) (Rule 16 permits discovery of only a defendant's statement, and not the statements of others). The Government represents that it has met its obligation under Rule 16, and will meet its obligation to disclose prior statements of witnesses and co-conspirators prior to trial. See Gov't. Memo. at 23. Accordingly, Rosario's request for prior statements of witnesses and co-conspirators is denied.
D. Brady Material
Rosario broadly seeks disclosure of exculpatory evidence pursuant toBrady v. Maryland, 373 U.S. 83 (1963) ("Brady"). See Aff. Specifically, Rosario requests that the Government provide: (1) a list of all witnesses who may provide information, including co-conspirators; (2)statements made by, and the identity of, all Government witnesses who did not identify him as a participant in the charged criminal acts; (3) prior statements of witnesses and co-conspirators; (4) any cooperation, immunity or other agreements between the Government and any witness; (5) the criminal records and any records of pending criminal prosecutions of all Government witnesses; (6) psychiatric and psychological records and evidence concerning drug or alcohol addiction of all Government witnesses; and (7) statements made by individuals which exculpate him or minimize his role in the charged conduct. See Grover Aff. ¶ 20.
Brady requires the Government to disclose favorable evidence to a defendant "where such evidence is "material" either to guilt or punishment." In re United States (Coppa), 267 F.3d 132, 139 (2d Cir. 2001). "Favorable evidence includes not only evidence that tends to exculpate the accused, but also evidence that is useful to impeach the credibility of a government witness." Id. However, courts have consistently held that Brady does not establish a general right to pre-trial discovery. See e.g. United States. v. Middlemiss, 217 F.3d 112, 123 (2d Cir. 2000); United States v. Polanco, No. 97 Cr. 106, 1997 WL 452389, at *3 (S.D.N.Y. Aug. 8, 1997). In response, the Government acknowledges that it is fully aware of its obligations under Brady and its continuing duty to comply with Brady. See Gov't. Memo. at 14. In accordance with its traditional practice, the Court accepts the Government's affirmation that it will abide by Brady. Accordingly, the Court declines to order production of Brady material.
With respect to the impeachment evidence component of Brady, the Government is not required to disclose such material before the witness testifies at trial. See Giglio v. United States, 405 U.S. 150 (1972) ("Giglio"); United States v. Velasquez, No. 96 Cr. 126, 1997 WL 414132, at *6 (S.D.N.Y. July 23, 1997). However, due process requires thatGigilo material must be disclosed in time to permit its effective use at trial. See United States v. Reddy, No. 01 Cr. 58, 2002 WL 15610, at *15 (S.D.N.Y. Jan. 7, 2002); United States v. Frank, 11 F. Supp.2d 322, 325 (S.D.N.Y. 2000) ("Provided that the defendant has sufficient time after receipt of Gigilo material to use it effectively at trial, there is no violation of the defendant's rights from deferring production of this material until closer to the time of the witness' testimony."). The usual practice in this district is that the Government agrees to make impeachment material available to a defendant at the same time as Jencks Act material, that is, at least one day before the Government witness is called to testify. See United States v. Kelly, 91 F. Supp.2d 580, 585 (S.D.N.Y. 2000). Therefore, the Court accepts the Government's representation that it intends to produce Giglio material in accordance with this district's practice or earlier if necessary. Accordingly, the Court declines to order production of Giglio material.
It is unclear whether Rosario requests an order directing the Government to produce materials pursuant to the Jencks Act, 18 U.S.C. § 3500. The Jencks Act provides that the statements of a government witness, which includes co-conspirators, shall not be the subject of discovery or inspection until such witness has testified on direct examination at trial. The Government has agreed to provide Jencks Act material at least one day before the Government witness is called to testify on direct examination. See Gov't. Memo. at 18-19. Accordingly, to the extent that Rosario moves for Jencks Act disclosure, the motion is denied.
CONCLUSION
For the reasons set forth above, Rosario's motion to compel the production of various items of discovery is granted in part and denied in part. Furthermore, the Court reserves decision on Rosario's motion to suppress identification evidence. The Court orders an evidentiary hearing on April 11, 2002, at 10:30 a.m. in Room 906, 40 Centre Street, New York, New York, to determine whether the in-court identification testimony is admissible.SO ORDERED