Opinion
Criminal Action No. 04-355 (CKK).
April 13, 2005
MEMORANDUM OPINION
Currently before the Court are (1) Defendant Bryan Burwell's Motion for Discovery and Production of Documents; (2) Defendant Burwell's Motion to Preserve Notes, Reports and Evidence; (3) Defendant Aaron Perkins' Motion for Preservation of Tapes and Notes; (4) Defendant Perkins' Motion for Notice by the Government of the Intent to Use Evidence Arguably Subject to Suppression; (5) Defendant Perkins' Motion for Discovery of Statements of Co-Defendants and Co-Conspirators; (6) Defendant Carlos Aguiar's Motion to Disclose Identities of Each Confidential Informant Regardless If They Will Be Called for Trial; (7) Defendant Burwell's Motion to Reveal the Identity of the Informant(s) and the Basis of Their Reliability; (8) Defendant Burwell's Motion to Compel Disclosure of Information Regarding Confidential Informants, Witnesses and Cooperating Criminals; (9) Defendant Perkins' Motion to Disclose the Identity of Confidential Informants; (10) Defendant Burwell's Motion for Notice of Intent to Introduce Uncharged Misconduct and Prior Convictions; (11) Defendant Perkins' Motion for Disclosure of Impeaching Information; (12) Defendant Aguiar's Motion for Pretrial Identification and Production of Jencks Material; (13) Defendant Perkins' Motion for the Government to Produce U.S. Sentencing Guideline Information; (14) Defendant Perkins' Motion to Disclose All Instances Where Witnesses Were Interviewed Jointly; (15) Defendant Perkins' Motion Requiring the Government to Admit or Deny the Existence of Other Investigations and Potential Indictments; (16) Defendant Perkins' Motion for Discovery and Disclosure of Any E-Mail Abuse by Metropolitan Police Officers Who Were Involved in the Investigation of this Case; (17) Defendant Perkins' Motion for Disclosure of Favorable Evidence Against Witnesses Not Called to the Stand by the Government; (18) Defendants' Oral Motion Requesting Notice of Government's Intention to Introduce Statements at Trial Under the Residual Hearsay Rule; (19) Defendant Burwell's Motion in Limine Regarding Video Tape Evidence; and (20) Defendant Lionel Stoddard's Motion to Bifurcate Trial. The Government has filed an Omnibus Response that answers, inter alia, these specific motions made by Defendants. After reviewing the parties' briefing and the relevant caselaw, the Court shall deal with each defense motion in sequence.
I: BACKGROUND
On November 9, 2004, the Grand Jury in the above-captioned case returned a twenty-one count Superseding Indictment against the six remaining defendants in this case — Miquel Morrow, Lionel Stoddard, Carlos Aguiar, Bryan Burwell, Aaron Perkins, and Malvin Palmer (collectively, "Defendants"). Count I of the Indictment charges all six Defendants with a conspiracy to participate in a Racketeer Influenced Corrupt Organization ("RICO"), in violation of 18 U.S.C. § 1962(d), based upon alleged racketeering acts involving armed robberies of four banks in the District of Columbia (Acts 1-4) and two banks in the District of Maryland (Acts 5-6), as well as three acts involving murder (Acts 7-9). Count II charges all six Defendants with a conspiracy to commit offenses against the United States. Substantive charges involving armed bank robbery (Counts III, VIII, XII, and XVII), using or carrying a firearm during a crime of violence (Counts IV, IX, XIII, XVIII), unlawful possession of a firearm by a felon (Counts V-VII, X-XI, XIV-XVI, XIX), and assault with intent to kill (Counts XX-XXI), are charged against the specific defendants named in those counts. The armed robberies were allegedly accomplished while the Defendants brandished weapons and wore body armor, hoods, masks, bandanas, and heavy clothing to avoid identification. The assaults also involved the use of firearms.
A substantially similar superseding indictment was returned on February 15, 2005, that deleted two of the previous counts, changing the numbering scheme. However, many of the motions concerning the validity of the Indictment were filed prior to this February date, and both the Government and the Defendants refer to the numbering scheme employed by the November 9, 2004 Superseding Indictment in their filings. As such, for purposes of clarity, the Court will refer to the numbering scheme used in the November 9, 2004 Indictment in this Opinion.
II: DISCUSSION
As noted above, Defendants have twenty motions currently pending before this Court for resolution before the start of trial — nearly all of these motions concern pre-trial discovery matters already worked out between the parties. However, for the sake of clarity and comprehensiveness, the Court shall analyze each motion in sequence.
A. General Motions
1. General Discovery Motion
Defendant Bryan Burwell has filed a Motion for Discovery and Production of Documents Pursuant to Federal Rule of Criminal Procedure 12(d)(2) and 16. While noting that "the government has provided considerable discovery to date," Defendant Burwell itemizes the types of evidence that he seeks in order "to preserve all issues and statutory rights to discovery." Def. Burwell's Mot. for Discovery at 1.
It appears as though Defendant Burwell's motion actually refers to Federal Rule of Criminal Procedure 12(b)(4)(B), which is a provision comprised of the former Rule 12(d). See Fed.R.Crim.P. 12 advisory committee's note (2002 Amendments). Rule 12(b)(4)(B) provides that
At the arraignment or as soon afterward as practicable, the defendant may, in order to have an opportunity to move to suppress evidence under Rule 12(b)(3)(C), request notice of the government's intent to use (in its evidence-in-chief at trial) any evidence that the defendant may be entitled to discover under Rule 16.
Fed.R.Crim.P. 12(b)(4)(B). Rule 16 provides that the Government must disclose certain materials to a requesting defendant, including a defendant's oral statement, a defendant's written or recorded statement, a defendant's prior record, certain documents and objects, reports of examinations and tests, and a written summary of expert testimony. See Fed.R.Crim.P. 16(a)(1)(A)-(G). The Government retains a continuing duty to supplement its disclosures upon the discovery of additional evidence or material. Fed.R.Crim.P. 16(c). However, certain information is not subject to disclosure. Fed.R.Crim.P. 16(a)(2).
The Court notes that the Government has represented that it has provided a great volume of discovery materials to defense counsel under Rule 16 and continues to comply with its discovery-related obligations. To the extent that Defendant Burwell has requested materials that fall within the discovery obligations of the Government and to the extent that he makes specific requests for Brady and Jencks materials in this motion, his motion is GRANTED. Under the Court's Scheduling Order entered on February 24, 2005, the Government is required to provide such materials either three days in advance for all bank witnesses or one week in advance for all other witnesses. See United States v. Morrow, 04cr355 (D.D.C. Feb. 24, 2005) (scheduling order). To the extent his motion seeks disclosures exceeding those required by the Rules, it is DENIED.
2. Motions to Preserve
Both Defendant Burwell and Defendant Aaron Perkins have filed motions seeking to obtain an Order that requires government agents involved in this investigation to preserve tapes, notes, reports, and evidence generated during the course of this investigation pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), United States v. Riley, 189 F.3d 802, 806 (9th Cir. 1999), and 18 U.S.C. § 3500. The Government notes, in response, that "[c]onsistent with the policies of the United States Attorney's Office and each of the investigative agencies, the agents have preserved their notes and have already provided copies to the prosecutors." Gov'ts Omnibus Response at 43. Because the requested items have been preserved, the defendants' respective motions are MOOT.
3. Defendant Perkins' Motion Requesting Itemization of Evidence Arguably Subject to Suppression
Defendant Perkins, pursuant to Rule 12(d)(2), has filed a Motion for Notice by the Government of the Intent to Use Evidence Arguably Subject to Suppression. Once again, the Rule that Defendant Perkins actually intends to refer to is Rule 12(b)(4)(B). In response, the Government notes that it "has already complied with Rule 12(b)(4)(B)," as it "has provided itemized lists to the defendant of the evidence it seized from the defendants and some of the defendants' residences or the residences of others, and has informed defendant that it may use this evidence at trial." Gov'ts Omnibus Response at 43. As such, to the extent that Defendant Perkins' motion requests information covered by Rules 12(b)(4)(B) and 16, it is MOOT; to the extent that it seeks disclosures exceeding those required by the Federal Rules of Criminal Procedure, it is DENIED.
4. Defendant Perkins' Motion for Discovery of Statements of Co-Defendants and Co-Conspirators
Defendant Perkins has also filed a Motion for Discovery of Statements of Co-Defendants and Co-Conspirators. In this motion, he "asks this Court for an order directing the government to permit the inspection and copying of any statement of any co-defendant or co-conspirator that the government intends to offer against him under Fed.R.Evid. 801(d)(2)(E)." Def. Perkins' Motion for Discovery of Stmts. at 1. Defendant Perkins stresses that he is entitled to such statements under Federal Rule of Criminal Procedure 16(a)(1)(A) even "if the government does not intend to call the co-conspirator as a witness." Id. at 2.
Defendant Perkins' implicit argument is that because the co-conspirator's statements may be treated as the defendant's own for purposes of hearsay analysis, they should be discoverable in the same manner as the defendant's own statements. Such an argument has been rejected by numerous courts, which have found that Rule 16(a)(1)(A) could not be read to permit such discovery, because it would violate the balance chosen by Congress between the defendant's interest in use of non-witness materials and the government's interest in their non-disclosure. See United States v. Tarantino, 846 F.2d 1384, 1418 (D.C. Cir. 1988); United States v. Williams-Davis, 90 F.3d 490, 513 (D.C. Cir. 1996); United States v. Roberts, 811 F.2d 257, 258-59 (4th Cir. 1987) (en banc); United States v. Orr, 825 F.2d 1537, 1541 (11th Cir. 1987). As the D.C. Circuit held in Williams-Davis,
merely because one set of rules (internally consistent, one hopes) makes two distinct items equivalent for some specific purpose, it does not follow that they are equivalent for all related purposes. That a declarant's statement becomes a statement of the defendant under F.R.E. 801(d)(2)(E) does not mean it becomes the defendant's statement for the purposes of F.R.Crim. Pro. 16(a)(1)(A), Tarantino; that a declarant is treated as a witness for purposes of 801(d)(2)(E) or Rule 806 does not mean he becomes one for purposes of the Jencks Act.90 F.3d at 513. Instead, "[c]riminal defendants are only entitled to statements of non-testifying witnesses or co-conspirators if those statements qualify as Brady material." United States v. Edelin, 128 F. Supp. 2d 23, 33 (D.D.C. 2001) (citing Williams-Davis, 90 F.3d at 512-13); see also United States v. Cooper, 91 F. Supp. 2d 79, 86 (D.D.C. 2000). Given the Government's emphasis that it shall comply with its Brady and Jencks obligations, Defendant Perkins' request for statements falling outside of these parameters is DENIED.
B. Defendants' Motions for Confidential Informant Information
Defendants have also filed several motions relating to disclosures concerning the confidential informants in this case. Defendant Carlos Aguiar has filed a Motion to Disclose Identities of Each Confidential Informant Regardless If They Will Be Called for Trial; Defendant Burwell has filed a Motion to Reveal the Identity of the Informant(s) and the Basis of Their Reliability and a Motion to Compel Disclosure of Information Regarding Confidential Informants, Witnesses and Cooperating Criminals; and Defendant Perkins has filed a Motion to Disclose Identity of Confidential Informants. However, Defendant Burwell, on March 30, 2005, filed a motion to withdraw his Motion to Reveal the Identity of the Informant(s); in doing so, he noted that the motion was "moot and filed in error in this particular case." Def. Burwell's Mot. to Withdraw at 1.
The Supreme Court has refused to adopt an inflexible rule that the identity of an informer or cooperating witness must be disclosed whenever the testimony may be relevant and helpful to the accused. Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Rather, the Government enjoys a qualified although "time-honored privilege to withhold the identity of its informants from criminal defendants." United States v. Brodie, 871 F.2d 125, 128 (D.C. Cir. 1989). "The privilege is appropriately used here if the government otherwise complies with Brady v. Maryland and other applicable cases protecting the interests of the defendants." Edelin, 128 F. Supp. 2d at 33-34. Moreover, the Government is not required to disclose the identity "`of an informant who was not an actual participant in or a witness to the offense charged.'" United States v. Warren, 42 F.3d 647, 654 (D.C. Cir. 1994) (quoting United States v. Skeens, 449 F.2d 1066, 1071 (D.C. Cir. 1971)).
However, the Government's privilege of withholding the identity of its informants is "by no means absolute." Brodie, 871 F.2d at 128. Instead, the Court must balance the public's interest in protecting the flow of information to law enforcement against the defendant's right to prepare a defense. Roviaro, 353 U.S. at 62, 77 S.Ct. at 629; Warren, 42 F.3d at 654. "In making this determination as to whether disclosure of the informant's identity is required, the Court must use a totality of the circumstances approach, consider the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant circumstances." Edelin, 128 F. Supp. 2d at 34 (citing Rovario, 353 U.S. at 62, 77 S.Ct. 623). In this balancing, it is the defendant's "`heavy burden . . . to establish that the identity of an informant is necessary to [the] defense.'" Warren, 42 F.3d at 654 (quoting Skeens, 449 F.2d at 1070). "[M]ere speculation that informer might possibly be of some assistance is not sufficient to meet [defendant's] burden." United States v. Mangum, 100 F.3d 164, 172 (D.C. Cir. 1996); United States v. Derr, 990 F.2d 1330, 1339-40 n. 10 (D.C. Cir. 1993) (citing Skeens, 449 F.2d at 1070). "As this Circuit has stated, in order to overcome the public interest in protecting the confidentiality of informants, the defendant must show that the informer was `an actual participant whose identity is necessary to the defense." Cooper, 91 F.Supp. 2d at 85-86 (quoting Mangum, 100 F.3d at 172).
Problematically, both Government and Defendants lack specificity in their filings, and fail to enter into a discussion about what informant identities remain at issue. The Government simply notes that "[h]ere, we have a number of individuals who may be characterized as `informants.' However, there is no overt act or racketeering act or substantive count in which the sole witness against the defendants will be an undisclosed `informant."' Gov'ts Omnibus Response at 46. Rather, the Government proffers that it "intends to call several witnesses who can be called `informant,' but these witnesses will be supplemented by law enforcement, civilian witnesses, and experts who were not participants in the charged conduct." Id. As such, this case is distinguishable from Roviaro, in which the informant was both the only other participant in the alleged drug transaction and the only material witness other than the defendant himself; in that case, the Government determined that the informant's identity had to be disclosed. See United States v. Ramirez, 54 F.Supp. 2d 25, 32 (D.D.C. 1999). Moreover, Defendants have failed to meet their "heavy burden," as they have not offered anything other than mere speculation that the informer(s) might possible be of some assistance; this failure is fatal to their arguments for disclosure. See Mangum, 100 F.3d at 172; Skeens, 449 F.2d at 1070; Edelin, 128 F. Supp. 2d at 34. To the extent that the Government intends to call cooperating witnesses and informants at trial, "the defendant[s] [are] not entitled to their identities until the government provides its witness list," Cooper, 91 F. Supp. 2d at 86, which the Government has provided. Accordingly, Defendants' motions for disclosure of confidential informants are DENIED.
C. Defendant Burwell's Motion for Notice of Intent to Introduce Uncharged Misconduct and Prior Convictions
Defendant Burwell has filed a Motion for Notice of Intent to Introduce Uncharged Misconduct and Prior Convictions, pursuant to Federal Rule of Evidence 404(b) and Federal Rule of Criminal Procedure 16, to require that the Government "provide notice of its intent to use evidence of prior arrests, convictions, or bad acts." Def. Burwell's Mot. for Notice at 1. In addition, he "moves for production of all evidence, documents, records of judgments and convictions, photographs and tangible evidence, and information pertaining to any judgments and convictions or bad acts." Id. The Government has already met this request, filing two Rule 404(b) Notices, and the Court has ruled on all of Defendants' Rule 404(b) challenges. See United States v. Morrow, Crim. No. 04-355 (D.D.C. Apr. 7, 2005) (memorandum opinion dealing with myriad of Rule 404(b)-related challenges). Accordingly, Defendant Burwell's motion is MOOT at this time.
D. Defendants' Motions for General Impeaching Information, and Specific Requests for Benefits Provided to Confidential Informants
Defendants Burwell and Perkins have made general requests for impeaching information, and also more specific requests that seek disclosure of any benefits that the Government provided to confidential informants. The Government responds by noting that it has made timely disclosure of all Brady information and will continue to do so. Gov'ts Omnibus Response at 47. Moreover, the Government contends that "[w]ith respect to disclosure required under Giglio v. United States, 405 U.S. 150 (1972), it is our intention to provide this information at the same time we disclose Jencks material, in advance of the witnesses [sic] testimony so that such information may be used during cross-examination." Id. (citing United States v. Phillips, 854 F.2d 273, 276 (7th Cir. 1988)). While this Circuit has noted that the Government must provide impeachment-styled information concerning government witnesses in time for defendants to make use of it, see United States v. Wilson, 160 F.3d 732, 742 (D.C. Cir. 1998), it has not explicitly spelled out a minimum amount of time between the disclosure of the information and the testimony given. The Third Circuit, in United States States v. Higgs, 713 F.2d 39, 44 (3rd Cir. 1983), suggested that such material does not have to be produced until after the relevant witness has testified. However, in this Circuit, the Edelin court — upon a Roviaro balancing test — noted that "disclosure, a minimum of three days prior to the relevant testimony, is more than adequate for the defendants to prepare their defense." Edelin, 128 F. Supp. 2d at 39. Here, the Court finds that, given the Government's representations and disclosures, that Defendants' motions for general and specific impeachment information are largely MOOT, and once again references the fact that under the Court's Scheduling Order entered on February 24, 2005, the Government is required to provide such materials either three days in advance for all bank witnesses or one week in advance for all other witnesses. See United States v. Morrow, 04cr355 (D.D.C. Feb. 24, 2005) (scheduling order).
E. Pre-Trial Jencks Material Disclosure
Defendant Aguiar has filed a Motion for Pre-Trial Identification and Production of Jencks Material, in which he contends that "[t]he timing provision of the Jencks Act, 18 U.S.C. § 3500(c) does not provide adequate time to prepare a proper defense and doesn't afford a fair trial within the unique facts of this case." Def. Aguiar's Mot. for Pre-Trial Jencks Info. at 2. According to Defendant Aguiar, "a pre-trial disclosure is warranted to avoid infringement upon Defendant's Sixth Amendment rights." Id. at 4.
Defendant Aguiar's demand flies in the face of applicable law. Federal Rule of Criminal Procedure prohibits discovery of statements by government witnesses or prospective government witnesses except as provided in the Jencks Act, 18 U.S.C. § 3500(a)(1982). "The Jencks Act directs that in a criminal prosecution, statements made by government witnesses or prospective government witnesses are not open to discovery or inspection by the defense until said witnesses have testified on direct examination in the trial of the case." Tarantino, 846 F.2d at 1414 (citations omitted). As the D.C. Circuit has emphasized, "[i]n balancing a criminal defendant's need for such statements against legitimate state interests, Congress provided for discovery of statements only after the witness has testified, out of concern for witness intimidation, subordination of perjury, and other threats to the integrity of the trial process." Id. (citations omitted). Accordingly, "[t]his congressional determination is not to be disregarded by the courts." Id.; see also In re United States, 834 F.2d 283, 287 (2d Cir. 1987) (Jencks Act controls statements by witnesses and district court has "no inherent power to modify or amend the provisions of that Act"). As such, courts have repeatedly rejected pre-trial identification and production of Jencks Act material. See, e.g., Tarantino, 846 F.2d at 1414-15 ("Only after those witnesses themselves testified does the Jencks Act give the defendants access to their statements."); Cooper, 91 F. Supp. 2d at 85 (denying defendant's motion for pre-trial Jencks material but noting that, based on agreement with the Government, such material would be provided "no later than three entire days before that witness testifies"); Edelin, 128 F. Supp. 2d at 33 (denying pre-trial Jencks request). Defendant Aguiar's motion is therefore DENIED, and Defendant Aguiar — like all Defendants — will receive such material as outlined in the Court's February 24, 2005 Scheduling Order.
F. Defendant Perkins' Miscellaneous Discovery-Related Motions
Defendant Perkins has also filed five discovery-related motions that may be grouped under a "Miscellaneous" category. The Court shall deal with each motion in sequence.
1. Motion for the Government to Produce U.S. Sentencing Guideline Information
Defendant Perkins has filed a motion requesting that the Government produce certain U.S. Sentencing Guideline Information. At the status hearing held before this Court on January 31, 2005, the Government provided the requested information to Defendant Perkins and his fellow Defendants. As such, Defendant Perkins' Motion for the Government to Produce U.S. Sentencing Guideline Information is MOOT.
2. Motion to Disclose All Instances Where Witnesses Were Interviewed Jointly
Citing no authority other than the "rule against witnesses," Federal Rule of Evidence 615, Defendant Perkins also "asks this Court to order government disclosure of all instances where witnesses were interviewed jointly." Def. Perkins' Mot. to Disclose All Instances Where Witnesses Were Interviewed Jointly. While the Government notes that it is not aware of any authority requiring such a disclosure, it proffers that "the prosecutors have had no substantive discussions with civilian witnesses where more than one witness was present." Gov'ts Omnibus Response at 51. As such, Defendant Perkins' motion is MOOT.
3. Motion Requiring the Government to Admit or Deny the Existence of Other Investigations and Potential Indictments
Defendant Perkins further "respectfully moves this Honorable Court for an Order requiring the Government to admit or deny the existence of other investigations and potential indictments of him." Def. Perkins' Mot. Requiring Gov't to Admit or Deny Existence of Other Investigations at 1. In his reasoning, Defendant Perkins relies upon (1) the fact that the Department of Justice has an internal policy against dual prosecution, and (2) the Supreme Court, in Petite v. United States, 361 U.S. 529, 80 S.Ct. 450 (1960), recognized the problems inherent in dual prosecution and highlighted the Department of Justice's policy against such prosecution. Id. Importantly, Defendant Perkins' motion fails for two reasons. First, he does not argue that the Government failed to adhere to the Petite policy in this case. Second, it is well-established that since the Petite policy is an internal rule, criminal defendants may not invoke it to bar prosecution by the federal government. See, e.g., United States v. Schwartz, 787 F.2d 257, 267 (7th Cir. 1986); United States v. Thomas, 759 F.2d 659, 668 (8th Cir. 1985); United States v. Catino, 735 F.2d 718, 725 (2d Cir. 1984); United States v. Nelligan, 573 F.2d 251, 255 (5th Cir. 1978). As such, Defendant Perkins' motion is DENIED.
4. Motion for Discovery and Disclosure of Any E-Mail Abuse by Metropolitan Police Officers Who Were Involved in the Investigation of This Case
Citing to a March 28, 2001, Washington Post article referencing the fact that several MPD officers were under investigation for abusing the e-mail system by making sexist, homophobic, and racist comments, Defendant Perkins moves "for an order compelling the government to provide any evidence that any Metropolitan Police Officers involved in the investigation, arrest, surveillance or evidence gathering process of this investigation, directly or indirectly, participated in any documented abuse of the e-mail system." Def. Perkins' Mot. for Disclosure of E-Mail Abuse at 1. Defendant Perkins asserts that such participation would be probative of the witness's character for truthfulness or untruthfulness as described in Rule 608(b) of the Federal Rules of Evidence. Id. The Government, in its Omnibus Response, rightly identifies such information as impeachment material, which it promises to produce in a timely fashion under its Brady and Jencks obligations. Given that no conflict currently exists over Defendant Perkins' request, the Court finds Defendant Perkins' motion relating to e-mail abuses to be MOOT.
5. Motion for Disclosure of Favorable Evidence Against Witnesses Not Called to the Stand by the Government
Defendant Perkins also seeks "disclosure of evidence that impeaches witnesses not called to the stand, but whose testimony will be introduced against the defendant by hearsay, pursuant to Rule 801(d)(2)(e) of the Federal Rules of Evidence." Def. Perkins' Mot. for Disclosure of Favorable Evidence Against Non-Testifying Witnesses at 1. According to Defendant Perkins, such impeachment evidence would include (1) any prior or subsequent inconsistent statements; (2) any prior convictions or juvenile adjudications; and (3) all considerations or promises, such as plea agreements. Id. In other words, Defendant Perkins is attempting to obtain information directed at the impeachment of the co-conspirator who made the statement, not the witness who testified as to the statement. Defendant Perkins makes a one paragraph request in which he cites no authority to support his request. In response, the Government, in equally summary fashion, contends that it "is aware of no such authority" supporting such a request, and maintains that it "is only required to turn over at the appropriate time the impeachment material for the testifying witness," not the non-testifying co-conspirator. Gov'ts Omnibus Response at 53.
The Court notes that the Government has represented that juvenile adjudications will be provided.
The Court, on its own, has reviewed the caselaw in this area. Under Brady and its progeny, "the Government has a constitutional duty to disclose favorable evidence to the accused where such evidence is `material' either to guilt or to punishment." In re United States, 267 F.3d at 139; see also Brady, 373 U.S. at 87, 83 S.Ct. 1194. "Favorable evidence includes not only evidence that tends to exculpate the accused, but also evidence that is useful to impeachment the credibility of a government witness." Id.; see also Giglio v. United States, 405 U.S. 150, 153-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The Circuits appear to be slightly split on this issue, and there appears to be a possible distinction between Brady and Giglio developing between the Circuits. For instance, in United States v. Jackson, 345 F.3d 59 (2d Cir. 2003), the Second Circuit declared that "[i]t is thus clear that Brady and its progeny may require disclosure of evidentiary and/or impeachment materials whether those materials concern a testifying witness or a hearsay declarant. A contrary conclusion would permit the government to avoid disclosure of exculpatory or impeachment material simply by not calling the relevant witness to testify." Id. at 71; see also United States v. Orena, 145 F.3d 551 (2d Cir. 1998) (reversing district court's grant of defendant's motion for a new trial on the basis that the government violated its Brady obligations by failing to disclose information that defendants could have used to impeach the credibility of out-of-court statements by a co-conspirator admitted under Fed.R.Evid. 801(d)(2)(E) only to because "the impeachment evidence withheld by the government [did] not meet the Brady standard of `materiality'"); Williams-Davis, 90 F.3d at 513-14 (D.C. Circuit cited Giglio and considered whether information was either exculpatory or impeachment material after observing that, "[i]f a declarant contradicted himself on a key point, then Brady v. Maryland would likely require disclosure"). However, at least two other Circuit court opinions could be read to hold that Giglio, unlike Brady, applies only to government witnesses who testify because it deals specifically with impeachment material. See Jackson, 345 F.3d at 71 n. 6 (citing United States v. Green, 178 F.3d 1099, 1109 (10th Cir. 1999) (holding that Giglio did not apply when the government "did not call" its confidential informant as a witness); United States v. Mullins, 22 F.3d 1365, 1372 (6th Cir. 1994) (finding "no authority that the government must disclose promises of immunity made to individuals the government does not have testify at trial," and holding that a grant of immunity could not be "`favorable to the accused' as impeachment evidence because the government did not call [the witness] and, thus, there was no one to impeach")).
The Court finds the Second Circuit's approach in Jackson to be the more persuasive approach, affording defendants the opportunity for a full and fair trial based on complete access to all relevant exculpatory and impeachment materials and closing a potential hole in Brady jurisprudence. See Jackson, 345 F.3d at 70 ("Although we have never expressly stated that the government must disclose exculpatory and impeachment materials pertaining to nontestifying witnesses, that conclusion flows ineluctably from our prior cases."). The Court agrees that without such a requirement, the Government could avoid disclosure of potentially exculpatory or impeachment material simply by not calling the relevant witness to testify. Such a holding approaches Brady and Giglio with the abundance of caution that each case requires, erring — if at all — on the side of greater protections for defendants in the quest to maintain a fair and accurate trial while lessening the chance of a violation. Accordingly, in this case, to the extent that Defendant Perkins' motion seeks disclosure of exculpatory and/or impeachment materials from a hearsay declarant falling under Federal Rule of Evidence 801(d)(2)(e) under Brady, his motion is GRANTED.
G. Defendants' Motion Requesting Notice of Government's Intention to Introduce Statements at Trial Under the Residual Hearsay Rule
At the hearing before this Court on December 21, 2004, Defendants requested that the Government provide notice under the residual exception to the hearsay rule. Rule 807 of the Federal Rules of Evidence requires that the government notify the defendant in a timely manner if it intends to introduce "residual hearsay." See United States v. Bachsian, 4 F.3d 796, 799 (9th Cir. 1993) (proponent should provide pretrial notice if it intends to rely upon residual hearsay rule for admission). Under Rule 807, the proponent of the residual hearsay rule must make the statement "known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant." Fed.R.Evid. 807. The Government, in its filing, proffers that "[i]f the government determines that it intends to introduce residual hearsay, it will comply with the requirements of the rule." Gov'ts Omnibus Response at 53. As such, because the Government has promised Defendants the relief requested, Defendants' oral motion is MOOT.
H. Defendant Burwell's Motion in Limine Regarding Video Tape Testimony
Defendant Burwell, in his Motion in Limine Regarding Video Tape Testimony, asserts that the Government should be precluded introducing a videotape labeled "June 12, 2004 bank robbery" because it "is of such poor quality that no reasonable juror would be able to make anything of it." Def. Burwell's Motion in Limine at 2. Defendant Burwell specifically identifies two potential problems: (1) the videotape begins with a display of a date other than June 12, 2004; and (2) "the alleged bank robbery occurs so fast; if at all, the tape can be of no assistance to a jury." Id. Moreover, Defendant Burwell asserts that such a showing to the jury should be precluded under Federal Rule of Evidence 403 because "in this case, the videos would be cumulative, cause delay and play to emotion rather than reason." Id. The Government, in response, asserts that the "tape is of sufficient quality to be of appropriate use to the jury," and pledges that, pursuant to Federal Rule of Evidence 403, the Court can limit the number of showings of the video to reduce any possible prejudice. Gov'ts Omnibus Response at 59. The Government describes Defendant Burwell's motion as "breathtaking, however, in that it seeks to preclude display of a tape of the crime as it was being committed." Id. at 60 (emphasis in original).
While the Court notes that it has not had an opportunity to review the quality of the tape in question, the Court does emphasize that properly authenticated videotape evidence of the event in question is quite probative, as it may show motive, intent, malice, premeditation, method, and atrociousness of a crime in question. Indeed, Rule 1001(2) of the Federal Rules of Evidence defines videotapes as a form of admissible photographic evidence. Courts have often focused on seven criteria for the admission of videotape recordings: (1) that the recording device was capable of taking the activity now offered in evidence; (2) that the operator of the device was competent to operate the device; (3) that the recording is authentic and correct; (4) that changes, additions, or deletions have not been made in the recording; (5) that the recording has been preserved in a manner that is shown to the court; (6) that the persons recorded are identified; and (7) that the activity elicited was made voluntary and in good faith, without any kind of inducement. See United States v. Starks, 515 F.2d 112, 121 n. 11 (3d Cir. 1975). If a videotape is authenticated and meets these standards, exclusion on the basis of Rule 403 is rarely granted. See, e.g., United States v. Curtis, 344 F.3d 1057, 1067 (10th Cir. 2003) (finding that admission of three videotapes was proper despite defendant's contentions that the tapes "were murky, lacked sufficient clarity to identify any of the defendants, and were improperly suggestive" because the tapes corroborated the testimony of some of the robbery victims and linked certain evidence obtained from defendant to the crimes); United States v. Jones, 275 F.3d 673, 681 (8th Cir. 2001) (upholding the admissibility of a videotape of a drug transaction as direct evidence that defendant was involved in a drug conspiracy).
Based on the relevant law and the fact that the Court has not viewed the videotape(s) in question, the Court concludes that Defendant Burwell's pre-trial Motion in Limine is premature at this time. Defendant Burwell simply cannot establish that the tape is of such poor quality and the robbery is so fast that "the tape can be of no assistance to the jury" at this time. As such, Defendant Burwell's motion is DENIED without prejudice at this time. However, during the trial itself, Defendant Burwell may renew his motion at the appropriate time — i.e., when the Court has an opportunity to view the quality of the tape, the authentication of the tape, and the overall context in which it is being admitted.
I. Defendant Stoddard's Motion to Bifurcate Trial
Defendant Lionel Stoddard has filed a Motion to Bifurcate Trial, asking that the Court bifurcate his trial or sever Count Sixteen of the Indictment, charging Defendant Stoddard with Unlawful Possession of a Firearm by a Person Convicted of a Crime Punishable by Imprisonment for a Term Exceeding One Year, in violation of 18 U.S.C. § 922(g)(1). See Def. Stoddard Mot. to Bifurcate at 1. Defendant Stoddard argues that "[a]bsent bifurcation or severance, [he] will suffer unfair prejudice because the jury would learn of his prior conviction(s) even if he does not take the stand to testify in this case." Id. Relying heavily on United States v. Dockery, 955 F.2d 50 (D.C. Cir. 1992), Defendant Stoddard asks that the Court structure the trial in such a manner as to ensure that the "jury first resolves the question of whether Mr. Stoddard knowingly possessed a firearm that traveled or had been transported in interstate commerce"; "[o]nly if the jury resolves that question adversely to Mr. Stoddard, should the further issue of his prior felony convictions be addressed." Id. at 5. Alternatively, Defendant Stoddard also asks that his Section 922(g)(1) count be severed from the Indictment. Id. In addition, he "offers to concede the existence of his prior convictions for an offense punishable by imprisonment for a term exceeding one year." Id. Defendants Miquel Morrow, Carlos Aguiar, and Malvin Palmer have also been charged with Section 922(g)(1) offenses in the Superseding Indictment, and have joined in Defendant Stoddard's motion. As discussed in the hearing held before this Court on April 12, 2005, all relevant defendants except Defendant Palmer have agreed to the same stipulation offered by Defendant Stoddard, which the Government has accepted. As to Defendant Palmer, the Government plans to offer certified copy of his conviction into evidence in order to establish that he is a person convicted of a crime punishable by a term of imprisonment exceeding one year.
Section 922(g) of Title 18 of the United States Code makes it a federal offense for certain classes of persons to possess ammunition or firearms that have been shipped in interstate commerce. See generally 18 U.S.C. § 922(g). In order to establish a violation of 18 U.S.C. § 922(g), the Government must prove three elements: (1) that the defendant is a member of the class of persons prohibited from possessing firearms or ammunition; (2) that the defendant possessed a firearm or ammunition; and (3) that the firearm or ammunition has the required connection to interstate commerce. See United States v. Drew, 5 F. Supp. 2d 6, 18 (D.D.C. 1998); Criminal Jury Instructions for the District of Columbia 4.79 (Barbara E. Bergman ed., 4th ed. 1993). As such, proof of the first element in a Section 922(g) charge almost always involves proof of misconduct that occurred prior to the alleged possession of the firearm. Because proof of "prior bad acts" is necessary to establish an element of Section 922(g) offenses, the Government is furnished with a per se proper purpose for seeking admission of evidence that might otherwise be inadmissible. See United States v. Bowie, 142 F.3d 1301, 1306 (D.C. Cir. 1998) ("Introduction of evidence of [defendant's] prior conviction was not improper under the Federal Rules of Evidence because the prior conviction was an element of two of the charged offenses. . . ."); Mangum, 100 F.3d at 171 n. 10 (evidence of ex-felon status "obviously admissible" to prove element of offense); cf. Fed.R.Evid. 404(b) (limiting admissibility of prior bad acts).
First on the statutory list of classes of persons prohibited from possessing firearms or ammunition are persons who have been previously convicted of a felony. 18 U.S.C. § 922(g)(1).
The existence of a proper purpose for admitting such evidence, however, does not remove the danger that introduction of such evidence could unfairly prejudice the defendant in some circumstances by providing the jury with an opportunity to use evidence to prove the status element of a Section 922(g) offense as the basis for convicting on other counts. See United States v. Dockery, 955 F.2d 50, 54-55 (D.C. Cir. 1992); 1A Charles Alan Wright, Federal Practice and Procedure § 222 at 474-486 (3d ed. 1999). Indeed, recognition that such evidence is admissible "is only the beginning of the analysis. Rules of evidence aside, the district court has an independent duty to ensure that trial procedures are fair and, in particular, to sever trials when justice so requires." Bowie, 142 F.3d at 1306 (citing Dockery, 955 F.2d at 53-54; Bradley v. United States, 433 F.2d 11113, 1117 (D.C. Cir. 1969)). Such a consideration is not to be taken likely, as "[t]here is . . . a high risk of undue prejudice whenever . . . joinder of counts in a trial of charges with respect to which the evidence would otherwise be inadmissible." United States v. Daniels, 770 F.2d 1111, 1116 (D.C. Cir. 1985). As Judge Abner Mikva emphasized,
The exclusion of bad acts evidence is founded not on a belief that the evidence is irrelevant, but rather on a fear that juries will tend to give it excessive weight, and on a fundamental sense that no one should be convicted of a crime based on his or her previous misdeeds.Id.
Rule 14 of the Federal Rules of Criminal Procedure is the vehicle for assessing when the danger of such prejudice is apparent enough that the Section 922(g) count should be tried separately from others. Id. at 1115. Rule 14 provided, in relevant part:
If it appears that a defendant . . . is prejudiced by a joinder of offenses . . . in an indictment . . ., the court may order an election or separate trials of counts . . . or provide whatever other relief justice requires.
In this Circuit, it is well-recognized that evidence of the "status" element of a Section 922(g) crime, in particular evidence in a felon-in-possession case under Section 922(g)(1), gives rise to concerns that animate Rule 14, but no per se rule governs when severance or bifurcation is appropriate. Bowie, 142 F.3d at 1307 (citing Daniels, 770 F.2d at 1118); Drew, 5 F.Supp. 2d at 19. In the felon-in-possession context, the danger of prejudice is particularly acute because the evidence of the prior felony is clearly prejudicial and could well be otherwise inadmissible. Id. at 1306; Dockery, 955 F.2d at 53 ("When trying an ex-felon [gun] count together with other counts, the trial judge must `proceed with caution' to avoid undue prejudice.") (quoting Daniels, 770 F.2d at 1118). The D.C. Circuit, in both Dockery and Daniels, declined to adopt a per se rule regarding what steps a district court must take to minimize the prejudice of other crimes evidence; however, in each decision, the Circuit provided initial guidance on how the prejudice of "status" evidence could be minimized, such as bifurcating the felon-in-possession count, accepting a stipulation as to the prior felony element without mention of the nature of the underlying felony, and limiting instructions to the jury regarding the purpose of the evidence. See, e.g., Mangum, 100 F.3d at 171; United States v. Jones, 67 F.3d 320, 323-24 (D.C. Cir. 1995); Dockery, 955 F.2d at 55-56.
In this case, Defendants Morrow, Stoddard, and Aguiar have agreed with the Government to a stipulation that they have been convicted of a crime punishable by imprisonment exceeding one (1) year. See Def. Stoddard's Mot. to Bifurcate at 5; see generally 4/12/05 Tr. The Court approves of such a stipulation, therefore avoiding any potential issue under Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), where the Supreme Court found that the district court had abused its discretion by refusing the defendant's request for to limit the evidence of the prior-conviction element of a Section 922(g)(1) charge to a similar stipulation. Id. at 174-75, 117 S.Ct. 644. Following the reasoning in Old Chief, this Court shall take three steps with respect to the defendants' potential prior conviction issues; the Court shall: (1) accept the stipulations offered; (2) keep from the jury the name and nature of the defendants' prior offenses; and (3) instruct the jury not to consider the fact of the defendant's prior conviction for anything other than that element of the felon-in-possession counts. See Bowie, 142 F.3d at 1303-04 (approving of the exact same steps taken by a trial court). Defendant Stoddard's other alternatives, such as bifurcation and severance, are simply not required based on the present circumstances. See, e.g., United States v. Clark, 184 F.3d 858, 867-68 (D.C. Cir. 1999) (rejecting defendant's suggestions in favor of bifurcation or being referred to as a "prohibited person" for the purposes of the Section 922(g)(1) offense); Bowie, 142 F.3d at 1303-04 (approving of stipulation and limiting instruction, rather than stipulation or bifurcation); Mangum, 100 F.3d at 171 n. 11 (rejecting defendant's contention that the district court should have "bifurcate[d] the ex-felon element and the other elements" of Section 922(g)(1) and explaining that severance of the prior felony element could be erroneous where "[d]oubt as to the criminality of [the defendant's] conduct may influence the jury when it considers the possession element") (quoting United States v. Collamore, 868 F.2d 24, 28 (1st Cir. 1989)); Drew, 5 F. Supp. 2d at 20 (rejecting bifurcation or severance and allowing admission of fact that defendant was subject to civil protective orders, making him subject to the prohibitions inherent in Section 922(g), with certain alleviating cautionary instructions); see also United States v. Moore, 376 F.3d 570, 573 (6th Cir. 2004) (refusing bifurcation request of felon-in-possession element because the conviction was independently relevant to the proof of the other charges involving a bank robbery); United States v. Belk, 346 F.3d 305, 310 (2d Cir. 2003) ("[A] district court's exercise of its discretion in refusing to bifurcate the elements of a [felon-in-possession] charge is not reversible error."), cert. denied, 540 U.S. 1205, 124 S.Ct. 1474, 158 L.Ed.2d 126 (2004).
Defendant Palmer, in contrast, has not agreed to a stipulation regarding his prior conviction, despite the Government's repeated statements that it would accept a stipulation similar to the ones entered into by his fellow co-defendants. The Court, at the hearing held on April 12, 2005, explained to Defendant Palmer the potential consequences of his refusal, as the Government now represents that it will introduce a certified copy of his previous felony conviction against him in order to prove the first element of the Section 922(g)(1) offense. With such an introduction, the jury will hear of the exact nature of Defendant Palmer's prior conviction. As noted previously, the D.C. Circuit has recognized that there is neither a per se rule outlining measures that sufficiently protect justice in this sort of case, Bowie, 142 F.3d at 1306, nor a per se rule requiring severance, Daniels, 770 F.2d at 1118. Rather, the district court must use its discretion to ensure that it has "sufficiently scrupulous regard for the defendant's right to a fair trial." Dockery, 955 F.2d at 54. Unfair prejudice occurred in Dockery because of two important occurrences: (1) the government rejected the defendant's offer of a stipulation, and insisted on proving the fact of the defendant's prior conviction through the testimony of his probation officer, id. at 52, 54; and (2) the government repeatedly and unnecessarily referred to the defendant's prior conviction during the trial, a fact that the D.C. Circuit regarded as "[p]erhaps the most significant" in assessing the prejudice involved, id. at 56. In the case of Defendant Palmer, the Court is confronted with a drastically different situation. Instead, the Government has indicated that it would be willing to accept a stipulation; it is the defendant who has rejected the offer and insisted that the Government use alternative means to prove the first element of the offense. Moreover, the Court plans on exercising its discretion during trial in a scrupulous manner in order to thwart any unnecessary references to the specific nature of Defendant Palmer's previous conviction, such as in the Government's opening and closing statements; such a step should cabin any undue prejudice. Cf. Jones, 67 F.3d at 324-25 (it is always error for the trial court to inform the jury of the nature of the defendant's prior felony after a defendant has raised an objection with respect to its admission). Finally, as with the other defendants, the Court shall issue a limiting instruction to the jury on this point, instructing the jury not to consider the fact or nature of the Defendant Palmer's prior conviction for anything other than that element of the felon-in-possession counts.
The case most applicable to Defendant Palmer's situation is United States v. Myles, 96 F.3d 491 (D.C. Cir. 1996). In Myles, counsel for the defendant failed to object to the felon-in-possession charge, did not move for a severance or bifurcation, and did not enter into a stipulation with the Government. Id. at 495-96 As such, the district court allowed the jury to learn the nature of the defendant's predicate felony on four occasions — twice by the prosecutor and twice by the court. Id. at 496. Upon a review of the defendant's appeal, the D.C. Circuit found that "[i]n light of the fact that there was no sua sponte duty on the district court to redact the description of [defendant's] prior felony from the certified copy of his conviction, the court's failure to prevent the Government from referring to the prior felony was not plain error." Id. Moreover, the Myles court approved of the district court's reading of the exact offense in the course of the judge's preliminary instructions to the jury, wherein the judge read the charges listed in the indictment: "[i]n light of this practice, and in the absence of a request by [defendant] that the prosecution refrain from revealing the nature of his prior felony, we cannot fault the district judge for having informed the jury of the content of [the felon-in-possession count]." Id. The only reference to the exact nature of the prior offense that the D.C. Circuit found fault with was when the district judge, at a later point, reminded jurors once more of the precise prior offense when answering a question posed by jurors regarding the meaning of "possession" in the felon-in-possession count. Id. at 496-97. While the D.C. Circuit found that, in this instance, the trial court had "gratuitously identified" the defendant's prior felony, it found that the error was not "plain error." Id. at 497. As such, the Circuit affirmed the defendant's conviction and found that undue prejudice had not occurred.
The Myles case has been read to stand for the proposition that a district court should focus on "whether the references to the previous conviction were legitimate or gratuitous." United States v. (Opio) Moore, 104 F.3d 377, 382 (D.C. Cir. 1997) (citing Myles, 96 F.3d at 497). Given the parameters of Myles, the Court sees no need to identify the precise nature of Defendant Palmer's previous felony conviction outside of one context: when the Government requests that Defendant Palmer's certified conviction be read into evidence, Myles, 96 F.3d at 496 (approving of such a reading because "the prosecutor was entitled to refer to the evidence that it planned to introduce and to describe the contents of the certified conviction being introduced into evidence"). The Court believes that such a reference in this sole instance would be legitimate, and not gratuitous. Outside of this instance, the Court notes that it will exercise scrupulous scrutiny to ensure that the Government is not attempting to highlight or otherwise improperly use Defendant Palmer's predicate conviction to his prejudice. Indeed, as part of the preliminary instructions, the Court shall summarize the Superseding Indictment and simply indicate that Defendant Palmer, like several of his other defendants, "has been convicted of a crime punishable by imprisonment for a term exceeding one year"; the Court shall not specify the nature of Defendant Palmer's prior offense. Given these usage limitations, as well as the Court's planned limiting instruction, the Court finds that bifurcation or severance is not warranted as to Defendant Palmer's Section 922(g)(1) charge, despite the fact that he has rejected a proposed stipulation which would limit any prejudice. Based on the Court's discussion and findings, Defendant Stoddard's Motion to Bifurcate, which his fellow co-defendants have joined, is therefore DENIED.
III: CONCLUSION
For the reasons set forth above, the Court: (1) GRANTS Defendant Bryan Burwell's Motion for Discovery and Production of Documents to the extent his requested materials fall within the discovery obligations of the Government and to the extent that he makes specific requests for Brady and Jencks materials in his motion, and DENIES his motion to the extent that he seeks disclosures exceeding those required by Federal Rule of Criminal Procedure 12 and 16; (2) DENIES AS MOOT Defendant Burwell's Motion to Preserve Notes, Reports and Evidence; (3) DENIES AS MOOT Defendant Aaron Perkins' Motion for Preservation of Tapes and Notes; (4) DENIES AS MOOT Defendant Perkins' Motion for Notice by the Government of the Intent to Use Evidence Arguably Subject to Suppression to the extent that his motion requests information covered by Rules 12(b)(4)(B) and 16, and DENIES Defendant Perkins' motion to the extent that he seeks disclosures exceeding those required by Federal Rules; (5) DENIES Defendant Perkins' Motion for Discovery of Statements of Co-Defendants and Co-Conspirators; (6) DENIES Defendant Carlos Aguiar's Motion to Disclose Identities of Each Confidential Informant Regardless If They Will Be Called for Trial; (7) DENIES AS MOOT Defendant Burwell's Motion to Reveal the Identity of the Informant(s) and the Basis of Their Reliability; (8) DENIES Defendant Burwell's Motion to Compel Disclosure of Information Regarding Confidential Informants, Witnesses and Cooperating Criminals; (9) DENIES Defendant Perkins' Motion to Disclose the Identity of Confidential Informants; (10) DENIES AS MOOT Defendant Burwell's Motion for Notice of Intent to Introduce Uncharged Misconduct and Prior Convictions; (11) DENIES AS MOOT Defendant Perkins' Motion for Disclosure of Impeaching Information; (12) DENIES Defendant Aguiar's Motion for Pretrial Identification and Production of Jencks Material; (13) DENIES AS MOOT Defendant Perkins' Motion for the Government to Produce U.S. Sentencing Guideline Information; (14) DENIES AS MOOT Defendant Perkins' Motion to Disclose All Instances Where Witnesses Were Interviewed Jointly; (15) DENIES Defendant Perkins' Motion Requiring the Government to Admit or Deny the Existence of Other Investigations and Potential Indictments; (16) DENIES AS MOOT Defendant Perkins' Motion for Discovery and Disclosure of Any E-Mail Abuse by Metropolitan Police Officers Who Were Involved in the Investigation of this Case; (17) GRANTS Defendant Perkins' Motion for Disclosure of Favorable Evidence Against Witnesses Not Called to the Stand by the Government as explained in this Opinion as it relates to this case; (18) DENIES AS MOOT Defendants' Oral Motion Requesting Notice of Government's Intention to Introduce Statements at Trial Under the Residual Hearsay Rule; (19) DENIES WITHOUT PREJUDICE Defendant Burwell's Motion in Limine Regarding Video Tape Evidence; and (20) DENIES Defendant Lionel Stoddard's Motion to Bifurcate Trial. An Order accompanies this Memorandum Opinion.