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denying request for production of minutes to defendant and for in camera review because defendant only presented a "bald allegation" that a review of the minutes was necessary to ensure that the grand jurors were properly instructed on the controlling law
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No. 00 CR 121 (RCC).
February 1, 2001.
OPINION AND ORDER
Defendants Julio Nunez, Rafael Garcia, Darnell Thomas and Laquetta Clarke have brought a number of pre-trial motions before this Court. The Court heard oral argument on the issues set forth in the motion papers of Defendants Garcia, Thomas and Clarke ("Defendants") on December 7, 2000, and the Court heard oral argument on the issues set forth in Defendant Nunez' papers on December 8, 2000.
This case involves a cocaine and crack distribution organization allegedly run by Julio Nunez (the "Nunez Organization"), operated in the vicinity of Washington Heights, New York. The United States Attorney's Office applied for and received an order from the Honorable Lawrence M. McKenna, pursuant to Title 18 of the United States Code, Section 2518, authorizing the interception and recording of wire communications occurring over the telephone located at Julio Nunez's apartment, electronic communications over a pager, and wire communications over a telephone located in a stash house that was allegedly used by the Nunez Organization. Based on the information collected and developed over the course of the investigation, Defendants Garcia, Clarke, Thomas and Nunez, along with other defendants, were charged in Count One of the July 27, 2000 Indictment with conspiring to violate the narcotics laws of the United States in violation of Title 21 of the United States Code, Sections 812, 841 and 846. Defendants Nunez and Garcia were charged in Count Two with carrying and using a firearm in furtherance of the narcotics conspiracy, in violation of Title 18 of the United States Code, Sections 924(c) and 2. Defendants Nunez and Garcia were charged in Counts Four and Five with maintaining a place for the purpose of manufacturing and distributing a controlled substance, in violation of Title 21 of the United States Code, Section 856 and Title 18 of the United States Code, Section 2.
Defendant Nunez seeks suppression of his statements made following his arrest, alleging that he was not advised of his Miranda rights and that his statements were not made freely and voluntarily. Defendant Clarke seeks suppression of her statements made after her arrest on the grounds that she did not knowingly waive her Fifth Amendment rights and that the interrogation was coercive and threatening. Defendant Clarke also seeks dismissal of Count One of the Indictment as duplicitous, severance of Count One from the remainder of the Indictment, a separate trial on Count One of the Indictment from her co-defendants, and additional discovery. Defendants Garcia and Thomas also seek additional discovery, immediate production of Brady and Giglio materials, early production of 3500 material, and early disclosure of "other crimes" evidence. Defendant Garcia moves for severance from his co-defendants. Defendant Thomas seeks a pre-trial hearing on the authenticity of the tape recorded conversations that were intercepted over the wiretaps. Defendant Thomas also moves to compel the Government to provide a bill of particulars, to produce attendance and voting records of the grand jurors and to preserve the handwritten notes of the agents.
The Government has consented to a hearing on the limited issue of whether Defendants Clarke and Nunez were properly advised of their rights prior to making any post-arrest statements and whether each knowingly and voluntarily waived those rights. Accordingly, the Court grants Clarke's and Nunez' request for a hearing on such points, and has scheduled hearing dates to determine the issues raised by defendants.
I. Joinder
Defendant Clarke argues that Count One of the Indictment is improperly joined with Counts Two through Five according to Federal Rule of Criminal Procedure 8(a) ("Rule 8(a)"), and that she is improperly joined with her co-defendants according Federal Rule of Criminal Procedure 8(b) ("Rule 8(b)").
Rule 8(a) permits joinder of offenses if the offenses that are charged in the indictment "are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Fed.R.Crim.P. 8(a). Here, Counts Two through Five charge offenses that were allegedly committed in furtherance of the charged narcotics conspiracy, including carrying and using a firearm in connection with the narcotics conspiracy and maintaining stash houses where the Nunez Organization allegedly manufactured, stored and distributed the narcotics that were the objectives of the conspiracy. Counts Two through Five of the Indictment relate to the conspiracy charged in Count One, and proof of the other counts will require proof of the conspiracy charged in Count One. "Joinder is proper where the same evidence may be used to prove each count." United States v. Amato, 15 F.3d 230, 236 (2d Cir. 1994) (citation omitted). The offenses charged in the Indictment are clearly "based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Fed.R.Crim.P. 8(a). Accordingly, Counts One is properly joined with Counts Two through Five of the Indictment.
Rule 8(b) provides that
[t]wo or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
Fed.R.Crim.P. 8(b). Here, the defendants allegedly participated in the same transactions or series of acts or transactions, constituting a narcotics conspiracy. It is of no consequence that Defendant Clarke is not charged in each count. Any potential prejudice that may occur from such joinder, which is speculative at best, would be cured by an appropriate instruction that the jury is to consider the guilt of each defendant individually. See United States v. Potamitis, 739 F.2d 784, 790 (2d Cir.), cert. denied, 469 U.S. 934 (1984) (jurors are presumed to be able to follow jury instructions).
II. Severance
Defendant Garcia requests that the Court sever his case and grant him a separate trial from that of his co-defendants. Defendant Clarke requests that the Court sever Count I from Counts II-V of the Indictment and grant her a separate trial.
A motion to sever is "`committed to the sound discretion of the trial court.'" United States v. Scarpa, 913 F.2d 993, 1014 (2d Cir. 1990) (citing United States v. Casamento, 887 F.2d 1141, 1149 (2d Cir. 1989),cert. denied, 493 U.S. 1081 (1990)). There is a preference in the federal system for defendants who are jointly indicted to be jointly tried.Zafiro v. United States, 506 U.S. 534, 537 (1993). A defendant arguing that severance is appropriate, therefore, must demonstrate more than the danger of some prejudice, or a better chance at acquittal in a separate trial. United States v. Torres, 901 F.2d 205, 230 (2d Cir.), cert. denied, 498 U.S. 906 (1990) (citation omitted). A defendant must demonstrate that he or she would be prejudiced so severely by the joinder that he or she would be denied a constitutionally fair trial, resulting in a miscarriage of justice. United States v. Rosa, 11 F.3d 315, 341 (2d Cir. 1993), cert. denied, 511 U.S. 1042 (1994); United States v. Friedman, 854 F.2d 535, 563 (2d Cir. 1988), cert. denied, 490 U.S. 1004 (1989). It is not enough that a defendant's role in the conspiracy may have been less than some of the other defendants' roles. United States v. Nersesian, 824 F.2d 1294, 1304 (2d Cir.) cert. denied, 484 U.S. 958 (1987).
Here, the crime charged is conspiracy to violate the narcotics laws of the United States. A joint trial will permit the jury to view the entire Nunez Organization and consider each individual defendant's role in it.See United States v. Persico, 621 F. Supp. 842, 852 (S.D.N Y 1985) (presumption in favor of joint trial is particularly strong where the crimes charged involve a common scheme or plan). Although Defendants Garcia and Clarke argue that a joint trial would result in prejudicial spillover. this is the case in any multi-defendant trial. The degree and risk of potential prejudice varies based on the facts of each case. Here, the defendants are charged a narcotics conspiracy, and motions for severance based on "[c]laims of prejudicial spillover rarely succeed, particularly where the defendant advancing the claim is charged along with other defendants in a narcotics conspiracy." United States v. Muyet, 945 F. Supp. 586, 596 (S.D.N Y 1996). Furthermore, "differing levels of culpability and proof are inevitable in any multi-defendant trial and standing alone, are insufficient grounds for separate trials." United States v. Carson, 702 F.2d 351, 366-67 (2d Cir.), cert. denied 462 U.S. 1108 (1983). The argument that the jury will not be able to separate the evidence against each defendant is purely speculative. The Court is confident that, with the Court's limiting instruction that the jury is to consider the guilt of each defendant individually, any such danger will be cured. Potamitis, 739 F.2d at 790.
III. Duplicity
Defendant Clarke moves for dismissal of Count One of the Indictment as duplicitous, arguing that it charges multiple conspiracies in one Count. If an indictment joins two or more distinct crimes in a single count, it is duplicitous. United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir. 1992). Here, Count One of the Indictment charges that the defendants, and others known and unknown, unlawfully, intentionally and knowingly did combine, conspire, confederate and agree together and with each other to violate the narcotics laws of the United States. The fact that Count One indicates it was a part and an object of the conspiracy that certain defendants would and did distribute and possess with intent to distribute cocaine, in violation of Title 21 of the United States Code, Sections 812, 841(a)(1) and 841(b)(1)(A), and cocaine base in a form known as crack is of no consequence, as that refers to the objectives of the conspiracy, and does not support the duplicity argument. Aracri, 968 F.2d at 15 18. The law in the Second Circuit is clear that the allegation in a single count of a conspiracy to commit several crimes is not duplicitous, because the conspiracy is a single crime, however diverse its objects. United States v. Murray, 618 F.2d 892, 896 (2d Cir. 1980) (citing Braverman v. United States, 317 U.S. 49, 53 (1942) (stating that "[w]hether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.") Accordingly, the Court holds that Count One of the Indictment is not duplicitous.
IV. Additional Discovery Materials
Federal Rule of Criminal Procedure 16 ("Rule 16") governs discovery and inspection of discovery materials. Additionally, parties must comply with Local Criminal Rule 16 of the Southern District of New York ("Local Rule 16"). Rule 16 requires that the Government provide the defense with certain information, including statements made by the defendant, the defendant's prior criminal record, documents or other objects that will be used at trial that were obtained from the defendant or that are material to the defense, expert reports regarding laboratory, physical, mental or scientific examinations and a summary of any expert testimony which will be offered at trial by the government. Fed.R.Crim.P. 16. Local 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 csaid 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. If some of the issues raised by the motion have been resolved by agreement, the affidavit shall specify the issues remaining unresolved.
As a preliminary matter, the Court notes that none of the defense counsel complied with the requirement of Local Rule 16. The Court hereby excuses such non-compliance, and will consider Defendants motions on their merits. To the extent Defendants have requested specific items of discovery that are not discussed below, the Court finds that the Government has fulfilled its production obligations to date. The Government has represented that it has provided all materials in its possession which fall under Rule 16(a). Government's Memorandum in Opposition to Pre-trial Motions, at 6-7. Defendants have not demonstrated a need to obtain any additional materials at this time. The Court reminds the Government that it is under a continuing obligation to adhere to regular discovery procedures.
A. Bill of Particulars
Defendant Thomas' motion for a bill of particulars is without merit. General principles are well settled regarding when a court should order the government to file a bill of particulars. Federal Rule of Criminal Procedure 7(f) provides the Court with the authority to direct the filing of a bill of particulars, however, a bill of particulars is not a matter of right. 1 Charles Alan Wright, Federal Practice and Procedure, § 129, 648 (3d Ed. 1999) (citations omitted). It is within a court's sound discretion to order the filing of a bill of particulars. United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999) (citation omitted). When exercising this discretion, a court must examine the totality of the information available to the defendant, including the indictment and general pre-trial discovery and determine whether, in light of the charges that the defendant is required to answer, the filing of a bill of particulars is warranted. United States v. Bin Laden, 92 F. Supp.2d 225, 233 (S.D.N.Y. 2000).
The purpose of a bill of particulars is to furnish facts supplemental to those contained in the indictment to permit a defendant to identify with sufficient particularity the nature of the charges pending against him, enabling the defendant to prepare for trial, prevent surprise and interpose a plea of double jeopardy should he be prosecuted a second time for the same offense. United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). Generally, a bill of particulars should only be required where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused.Torres, 901 F.2d at 234 (citations omitted). "It is not enough that the information would be useful to the defendant; if the defendant has been given adequate notice of the charges against him, the government is not required to disclose additional details about its case." United States v. Payden, 613 F. Supp. 800, 816 (S.D.N.Y. 1985). Because a bill of particulars confines the government's proof to the particulars furnished, a court should not grant a bill of particulars where the consequence of granting the request would be to unduly restrict the government's ability to present its case. See United States v. Perez, 940 F. Supp. 540, 550 (S.D.N.Y. 1996) (citations omitted). That would be the result here, if the Court were to order the Government to provide a bill of particulars.
Defendant Thomas argues that the "United States must generally disclose its theory of the case," and a "bill of particulars is a proper procedure for discovering the exact nature of a scheme believed to have been undertaken by an individual." Defendant Thomas' Memorandum in Support of Pre-trial Motions, at 3. However, a bill of particulars is not a general investigative tool, a discovery device, or a means to compel the government to disclose evidence or witnesses to be offered prior to trial. United States v. Strawberry, 892 F. Supp. 519, 526 (S.D.N Y 1995) (citing United Stated v. Gottlieb, 493 F.2d 987, 994 (2d Cir. 1974)). Furthermore, it is not the function of a bill of particulars to allow defendants to preview the evidence or theory of the government's case.United States v. Taylor, 707 F. Supp. 696, 699 (S.D.N.Y. 1989) (citations omitted); United States v. Persico, 621 F. Supp. 842, 868 (S.D.N Y 1985).
Defendant Thomas argues that "[a]bsent the information sought, movant will be unable to prepare a cogent defense." Defendant Thomas' Memorandum in Support of Pre-trial Motions, at 4. The Indictment in this case is not cast in general terms, is sufficiently clear as to the nature of the charges against Defendant Thomas and is sufficiently detailed with respect to the object of the conspiracy, the amount of crack cocaine allegedly involved, the dates of the conspiracy, overt acts alleged to have been committed in furtherance of the conspiracy, and facts connecting Defendant Thomas to the conspiracy. In addition, Defendants have received a detailed Complaint that describes the Nunez Organization, the roles of the all defendants, their relationships to each other and their relationships to certain premises searched during the course of the FBI investigation, where relevant. Further, the Government provided Defendants with "thousands of pages of documents, hundreds of cassette tapes of recorded telephone calls, numerous English translations of those telephone calls, together with an identification of, and access to dozens of items of physical evidence." Government's Memorandum in Opposition to Defendants' Pre-trial Motions, at 10. After careful review of Defendant Thomas' request, the Indictment, and the Complaint, and based upon the Government's representation regarding discovery already provided to Defendants, the Court finds that defense counsel was furnished sufficient infonnation to prepare for trial. The Indictment is sufficiently specific to permit Defendant Thomas to identify with sufficient particularity the nature of the charges pending against him, enabling him to prepare for trial, prevent surprise and interpose a plea of double jeopardy should he be prosecuted a second time for the same offense. The detailed Indictment, in addition to the voluminous discovery material supplied by the Government obviates the need for a Bill of Particulars in this case. Accordingly, Defendant Thomas' motion for a bill of particulars is denied.
B. Co-Conspirator Statements
Defendants also move for the immediate disclosure of any co-conspirator statements or other hearsay statements that the Government intends to introduce at trial, pursuant to Federal Rule of Evidence 801(d)(2), as well as all impeachment materials relevant to such coconspirator's statements. During oral argument on December 7, 2000, the Government agreed to turn over all co-conspirators statements that it has to all defense attorneys. As all Defendants came to an agreement with the Government on this point, the Court will not further address it here, and the parties are hereby ordered to act in conformance to the agreement set forth on the record on December 7, 2000.
Defendant Thomas also moves pursuant to Rules 104(a) and 801(d)(2)(E) of the Federal Rules of Evidence for a pre-trial hearing as to whether out-of-court assertions of alleged coconspirators will be admissible at trial, or failing such a hearing, for an order requiring the government to "prove the existence of a conspiracy and movant's involvement prior to the admission of the statements." Defendant Thomas' Memorandum in Support of Pre-trial Motions, at 15. The Court will resolve any dispute concerning the admissibility of a co-conspirator statement offered by the Government under Rule 801(d)(2)(E) of the Federal Rules of Evidence at trial, and denies Defendant Thomas' request for a pre-trial ruling or conference to make such determination. The Second Circuit expressly has approved the practice of admitting such statements at trial subject to the governments's introduction of evidence which will support the required finding under Bourjaily v. United States, 483 U.S. 171 (1987). United States v. Heatley, 994 F. Supp. 483, 490 (S.D.N.Y. 1998); United States v. Tracy, 12 F.3d 1186, 1199 (2d Cir. 1993). The Court will adhere to that practice. Statements proffered as co-conspirator's statements will be admitted at trial on a conditional basis, subject to the Court's finding, by a preponderance of the evidence, that such statements are admissible under Federal Rule of Evidence 801(d)(2)(E). This requires a finding that a conspiracy existed, that the defendant was a part of the conspiracy, and that the statements were made during the course of and in furtherance of the conspiracy. Id.; see Bourjailv v. United States, 483 U.S. at 175-76; United States v. James, 576 F.2d 1121 (5th Cir. 1978).
C. Brady, Giglio and Jenks Act Materials
Defendants Thomas, Clarke and Garcia request the production of evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963), United States v. Giglio, 405 U.S. 150 (1972), and the Jenks Act, 18 U.S.C. § 3500 et seq, ("3500 material"). The Government has stated that to the extent Defendant seeks material that is covered by Brady v. Marvland, and its progeny, the Government is aware of no such material. The Government has further stated that it recognizes a continuing obligation to disclose such material and will provide timely disclosure when and if any such material comes to light. The Court notes that the due process requirements of Brady override the statutory provisions of the Jenks Act. United States v. Gleason, 265 F. Supp. 880, 887 (S.D.N.Y. 1967). In light of the Government's good faith representations, there is no present need to direct the Government to comply with their discovery obligations pursuant to Brady. United States v. Gallo, 1999 WL 9848, at *8 (S.D.N Y Jan. 11, 1999) (citations omitted). Accordingly, Defendants' motion on this issue is denied.
Defendants also request the early disclosure of impeachment material under Gigho v. United States, 405 U.S. 150 (1972). Such impeachment information is properly disclosed when a witness is called to testify at trial and generally, the need for such evidence is insufficient to require its disclosure in advance of trial. United States v. Nixon, 418 U.S. 683, 701 (1974). "[I]nformation bearing on witness' credibility, such as grants or promises or immunity, plea bargain arrangements, or other consideration promised by the government in return for testimony must be turned over at the same time as other 18 U.S.C. § 3500 materials." United States v. Biaggi, 675 F. Supp. 790, 812 (S.D.N.Y. 1987) (citations omitted).
Defendants' request for early production of 3500 material is premature. The Government is not required to produce Jenks Act material until after the witness has testified on direct examination at trial. 18 U.S.C. § 3500 et seq. ("no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness . . . shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case."); United States v. McGuinness, 764 F. Supp. 888, 896 (S.D.N.Y. 1991).
There is no constitutional right to have early disclosure of Giglio and 3500 material. United States v. Trochelmann, 1999 WL 294992, *3 (S.D.N.Y. May 11, 1999) (citations omitted). The Government has indicated that it intends to produce any Giglio and 3500 material the day before the corresponding witness testifies or, if it appears that additional time will be reasonably required to review such material, sufficiently in advance of such witness's testimony so as to avoid delay. Government's Memorandum in Opposition to Pre-trial Motions, at 15. The Court finds this time frame is sufficient and accepts the Government's representations that any Giglio and 3500 material will be produced in a reasonable time to permit the defense to review such material in preparation for cross-examination. Accordingly, the request for early production of Giglio and 3500 material is denied.
D. Witness List
Defendant Thomas moves to compel the Government to provide a list of the Government's trial witnesses, or a list of persons who will not be called as witnesses, in order to permit Defendant Thomas to "intelligently investigate the case and adequately prepare his defense." Defendant Thomas' Memorandum in Support of Pre-trial Motions, at 5. "A defendant is not automatically entitled as a matter of right or under the Federal Rules of Criminal Procedure to a list of the names and addresses of the Government's witnesses prior to trial." United States v. Washington, 947 F. Supp. 87, 88 (S.D.N.Y. 1996). The decision to compel pre-trial discovery is vested in the discretion of the trial judge, and is to be granted when the defendant has demonstrated some "particularized showing of need, beyond the obvious assertion that such a list would facilitate preparation for a trial." United States v. Pastor, 419 F. Supp. 1318, 1330 (S.D.N.Y. 1976). This is particularly true in cases where dangers such as witness intimidation, subornation of perjury or injury to witnesses exist, such as in narcotics cases. United States v. Taylor, 707 F. Supp. 696, 703 (S.D.N.Y. 1989).
The allegations in this case involve the distribution of narcotics and an alleged sophisticated narcotics conspiracy that involved violence. Because of this, the Government has "substantial concerns about harm to potential witnesses as a result of the disclosure of their identities to the defendants and their associates." Government's Memorandum in Opposition to Pre-trial Motions, at 24. Here, the defendant's general claim that "movant's need is great" is insufficient to demonstrate the requisite particularized showing of need. United States v. Belasa, 904 F.2d 137, 139-40 (2d Cir), cert. denied, 498 U.S. 921 (1990). Absent a more specific showing of need, the motion to compel early production of the Government's witness list, or to compel production of a list of persons who will not be called as witnesses, is denied.
E. Information Regarding Confidential Informants and Witnesses
Defendants Thomas and Garcia move the Court to require the Government to reveal the identity of confidential informants and witnesses and to provide personal information about such informants and witnesses, such as their names, ahases, dates of birth, addresses, social security numbers, prior criminal records, and other information. The disclosure of the identity of confidential informants and witnesses is not required unless their 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). The defense bears the burden of establishing the need for such information. United States v. Muyet, 945 F. Supp. 586, 602 (S.D.N Y 1996) (citations omitted).
In this case, where there is a concern about the confidential informants' and witnesses' safety and where there is an ongoing investigation into illegal activities, it furthers the public interest in effective law enforcement for any informant's or witness's identity to be concealed unless the defense demonstrates that disclosure is essential.Rovario v. United States, 353 U.S. 52, 59 (1957). In order to sustain its burden of demonstrating that such disclosure is essential, a defendant must show that the disclosure would be significant to the ultimate determination of guilt or innocence. United States v. Ahmad, 992 F. Supp. 682, 684 (S.D.N.Y. 1998) (citation omitted). Speculation that the confidential informer or witness would be helpful to the defense is not sufficient to overcome the public interest in protecting confidential informants and witnesses. United States v. Martinez, 634 F. Supp. 1144, 1150 (S.D.N.Y. 1986) (citation omitted).
Here, Defendant Thomas argues that the identity of any confidential informants or witnesses is necessary because "they are material witnesses whom movant is entitled to question and call in his defense if he so desires." Defendant Thomas' Memorandum in Support of Pretrial Motions, at 7. Defendant Thomas argues that he is entitled to the names of such cooperating informants and witnesses whether or not they actively participated in the scheme charged in the Indictment, and whether or not the United States calls the confidential informants and witnesses to testify at trial. Id. Defendant Thomas argues that
informants are material witnesses to the criminal transaction culminating in the offense and subsequent arrest, and, as such, each is in a position to amplify or contradict the testimony of other witnesses. In this sense, the informants' testimony also would be relevant and helpful to the preparation of a defense as envisioned by Rovano.Id. at 8. Defendant Garcia argues that "the informants or co-defendants were participants in the critical events, and are the key if not only witnesses against the defendant." Defendant Garcia's Memorandum in Support of Pre-trial Motions, at 11. The Court finds that neither Defendant Thomas nor Defendant Garcia has met his burden of demonstrating that disclosure of the identity of any confidential Government witnesses or informants is necessary or appropriate, considering the strong public interest in protecting confidential informants and witnesses. Accordingly, Defendants Thomas' and Garcia's motions on this issue are denied.
F. Bad Acts Evidence
Defendants Clarke, Garcia and Thomas requested the Court to compel disclosure of evidence of similar acts pursuant to Rule 404(b) of the Federal Rules of Evidence. ("Rule 404(b)"). Rule 404(b) requires that the Government provide "reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial." Fed.R.Evid. 404(b). While the rule itself indicates that "reasonable notice" of 404(b) material must be proffered, no specific time frame is given. Defendants argue that preliminary questions concerning the admissibility of any such evidence should be determined by the Court. The Government has agreed to disclose the substance of any prior bad acts that it intends to offer against Defendants sufficiently in advance of trial, in order to enable Defendants to challenge the admissibility of any such evidence. Governments' Memorandum in Opposition to Pre-Trial Motions, at 21. The Court finds that Defendants have not demonstrated a need to obtain notice of 404(b) evidence at this time, and that to require the Government to respond to such a pre-mature request would unfairly impede its ability to develop and prepare its case. See United States v. Matos-Peralta, 691 F. Supp. at 791. Accordingly, Defendants' motions are denied, however, the Government is ordered to provide reasonable notice to all defendants charged in this case of any 404(b) evidence, which notice shall be at least 14 days before trial. If additional 404(b) evidence or evidence of other crimes is discovered or becomes relevant after such time, the Court directs the Government to bring such evidence to the immediate attention of the defense and the Court.
G. Preservation of Government Notes
Defendant Thomas argues that the rough notes of Government agents and law enforcement investigators may be discoverable under the Jenks Act and otherwise, and, therefore, they should be preserved for such determination. Following oral argument on this issue, the Court ordered the government to preserve any such notes that are in its possession or its agents' possession, and ordered that the Government inform its agents that no such notes shall be destroyed. See United States v. Feola, 651 F. Supp. 1068, 1136 (S.D.N.Y.), aff'd., 875 F.2d 857 (2d Cir.),cert. denied, 493 U.S. 834 (1989). The Court hereby confirms this order and reserves decision as to whether any such notes are discoverable.
H. Grand Jury Records
Defendant Thomas argues that the Government must product the attendance and voting records of the grand jurors who heard evidence in this matter, arguing that the Government has an obligation to satisfy the Court that none of the grand jurors missed so much of the evidence presented that the Fifth Amendment would not permit his or her vote to be counted. Defendant Thomas' Memorandum in Support of Pre-trial Motions, at 29 (citing United States v. Provenzano, 688 F.2d 194, 201 (3d Cir. 1982)). Federal Rule of Criminal Procedure 6(e)(2) provides that matters before the grand jury are secret, and Federal Rule of Criminal Procedure 6(e)(3)(C)(ii) states that disclosure of grand jury proceedings are permitted "upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury." In order to obtain such disclosure, however, a defendant carries the burden of demonstrating a particularized need for grand jury materials. United States v. Sells Engineering, 463 U.S. 418, 443 (1983). Here, the only suggestion that there is a need for such information is in the bald allegation that "[a] review of the indictment indicates that the grand jury was clearly misinstructed as tot he law and many of the grand jurors may not have been present during presentation of the evidence, if indeed evidence was produced." Defendant Thomas' Memorandum in Support of Pre-trial Motions, at 29. Defendant Thomas makes no allegation that he did not receive an informed determination of probable cause by a quorum of the panel rather, the Defendant Thomas simply argues that he is entitled to one. This clearly does not meet the burden of demonstrating a particularized need for grand jury information. Defendant's allegations here provide "`no reason to disregard the presumption of regularity of grand jury proceedings,' and do not even warrant an in camera review of the grand jury minutes." United States v. Brown, 1995 WL 387698, *8 (S.D.N.Y. June 30, 1995) (citing United States v. Kalevas, 622 F. Supp. 1523, 1525 (S.D.N.Y. 1985). Accordingly, the Court denies Defendant's motion on this issue and declines to conduct a review of the grand jury proceedings or require the Government to produce any records of the grand jury proceedings at this time. However, upon a showing of the requisite, particularized need, the Court will reconsider this motion.
V. Authentication
Defendant Thomas argues that the Court must conduct a hearing as to the voluntariness of any alleged statements of Defendant Thomas, in the event that the United States seeks to admit any such statement. This motion is premature, as the Government has indicated that it is not certain which statements it intends to use at trial. The Government also indicated that it will provide Defendants with notice of all conversations that it intends to introduce at trial well in advance of trial, to permit for the renewal of such motion. Government's Memorandum in Opposition to Pre-trial Motions, at 34. The Court will adhere to its practice of deferring this issue until a date closer to the trial. Accordingly, Defendant Thomas' motion is denied, with leave to renew.
VI. Motion to Join in Motions of Co-Defendants
Defendant Thomas also moves to adopt, as if filed by him, all motions filed by his codefendants. The Court hereby grants such motion, and has considered Defendants Garcia's and Clarke's motions (with the exception of Defendants Nunez's and Clarke's motions to suppress post-arrest statements, on which the Government came to an agreement with the defense to hold a hearing, thus obviating the need for the Court to rule on the issue) as if they were filed by Defendant Thomas. Accordingly, the rulings herein apply to Defendant Thomas as well, whether or not specified.
VII. Reservation of Rights
Defendant Garcia requests leave to bring any additional motions which may become necessary based upon the Government's response to his motions or based on new facts that are uncovered during the ongoing investigation. The Court finds that this request is premature, and will entertain specific requests for leave to file additional motions at a future date, if necessary and appropriate, upon a showing that the basis for any additional motions became known only subsequent to the date of this Opinion and Order and reasonably could not have been discovered sooner.
Conclusion
For the above reasons, Defendants' motions are denied, except to the extent herein stated.