Opinion
01 Cr. 410 (RWS)
December 14, 2001
HONORABLE MARY JO WHITE, United States Attorney for the Southern District of New York, New York, NY, By: LAURIE A. KORENBAUM, Assistant US Attorney, Of Counsel, Attorney for United States of America.
EDWARD P. JENKS, ESQ., Mineola, NY, Attorney for Defendant Todd Kelly Roberts.
MANCUSO, RUBIN FUFIDIO, White Plans, NY, By: ANDREW A. RUBIN, ESQ., Of Counsel, Attorney for Defendant Michael Toback.
OPINION
Defendants Todd Kelley Roberts ("Roberts") and Michael Toback ("Toback") have moved under Rule 12(b) of the Federal Rules of Criminal Procedure for an order dismissing the indictment on grounds that the indictment is based on a statute that is unconstitutionally vague and on procedures in violation of the Administrative Procedures Act ("APA"). Both defendants also seek an order requiring the Government to produce a bill of particulars pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure. Toback also seeks the following: (1) an order severing the trials of Toback and Roberts; (2) preclusion at trial of the tape recordings of certain transactions involving Toback; (3) an order suppressing statements made by Toback to Special Agents of the Drug Enforcement Administration ("DEA"); and (4) a hearing as to whether the Government's scientific proof is sufficient to form a basis for the charges. Roberts seeks the disclosure of Brady and Giglio material, as well as additional discovery material pursuant to Rule 16 of the Federal Rules of Criminal Procedure. For the reasons set forth below, the defendants' motions are granted in part and denied in part.
Prior Proceedings The Charges Against the Defendants
On April 26, 2001, a Grand Jury sitting in the Southern District of New York returned a five-count Indictment against Roberts and Toback. The indictment charged Roberts and Toback with conspiracy to distribute and to possess with the intent to distribute "1,4 butanediol," which the indictment further alleges is, under 21 U.S.C. § 802(32)(A) (hereinafter "the Analogue Statute"), a "controlled substance analogue" of gamma hydroxybutyric acid ("GHB"), a Schedule I controlled substance commonly known as the "date rape drug." In addition, Roberts was charged with one substantive count, and Toback with three substantive counts, of distributing and possessing with the intent to distribute 1,4 butanediol.
The indictment arose out of an investigation by the Drug Enforcement Administration ("DEA") that began in late 2000. The DEA had received information that a product by the name of "Rejoov," purportedly containing GHB, was being sold from Westerly Health Foods ("Westerly"), a store in Manhattan of which Toback is the owner. DEA agents made several purchases of Rejoov at Westerly, and the bottles of Rejoov were later tested in a DEA laboratory that, according to the Government, confirmed the presence of 1,4 butanediol. DEA agents later identified Roberts as the President of Barin Corporation, the company that allegedly supplied to Westerly the Rejoov product, as well as another product containing 1,4 butanediol known as Somax. A DEA agent later purchased Rejoov and Somax over Barin's internet site, and the solutions were purportedly found to contain 1,4 butanediol.
Roberts and Toback entered pleas of not guilty on April 30, 2001. The instant motion was heard on November 7, 2001. The parties submitted additional papers following argument and the motion was marked fully submitted on November 21, 2001.
The Analogue Statute
The indictment here alleges that Toback and Roberts possessed and distributed, and conspired to possess and distribute, 1,4 butanediol, allegedly a controlled substance analogue of GHB, a Schedule I controlled substance. As defined by the Analogue Statute, a "controlled substance analogue" is statutorily defined as a substance:
(i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;
(ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or
(iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.21 U.S.C. § 802(32)(A). A controlled substance analogue, to the extent that it is "intended for human consumption," is treated for purposes of the federal narcotics laws as a Schedule I controlled substance. 21 U.S.C. § 813.
Discussion I. A Hearing Will be Held to Determine Whether the Analogue Statute is Unconstitutionally Vague
Both Roberts and Toback seek dismissal of the indictment, arguing that the Analogue Statute, as applied in this case, is unconstitutionally vague. Specifically, they argue that (1) the Analogue Statute requires the Government to prove that 1,4 butanediol is substantially similar in chemical structure to GHB; and (2) because there is no "expert consensus" that 1,4 butanediol is in fact substantially similar in chemical structure to GHB, the Analogue Statute is fatally vague because it did not clearly warn Roberts that his conduct was illegal. In addition, Roberts argues that his conduct demonstrates that he did not believe he was breaking the law, illustrating the vagueness of the Analogue Statute as applied to his conduct. Toback attacks the Analogue Statute from another angle, claiming that because he is not a chemist and because the term "substantially similar" is inherently subjective, the Analogue Statute is so vague that it did not provide him with notice that his purchases and sales of Rejoov were illegal.
Because the defendants' arguments are in part premised on how the Analogue Statute should be interpreted, the issue of statutory construction must be resolved before turning to the vagueness question.
A. The Analogue Statute Requires the Government to Prove that 1,4 Butanediol is "substantially similar" to GHB in its Chemical Structure
As a threshold matter, the defendants contend that the definition of "controlled substance analogue" in the Analogue Statute must be read in the conjunctive. In order for a substance to qualify as analogue, they argue, both clause (i) and either clause (ii) or (iii) of 21 U.S.C. § 802(32)(A) must be met. First, the substance must have a chemical structure that is substantially similar to that of a scheduled substance. Second, either the substance must be substantially similar in its "stimulant, depressant, or hallucinogenic" effect on the body, or a person must intend or represent that the product have such an effect. The Government, in contrast, argues that the statute must be read disjunctively. Under this reading, a substance that meets any one of the three qualifications set forth in the statute is considered a controlled substance analogue.
A basic principal of statutory construction is that, in interpreting a statute, a court must first look to the plain meaning of the statutory language. American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982). Where the language of the statute is unambiguous, it is presumed to reflect the intent of Congress and is therefore controlling. However, "if the text of a statute is ambiguous, we must look to the statute as a whole and construct an interpretation that comports with its primary purpose and does not lead to anomalous or unreasonable results." Connecticut ex rel. Blumenthal v. U.S. Dept. of Interior, 228 F.3d 82, 89 (2d Cir. 2000) (citing American Tobacco, 456 U.S. at 71; Castellano v. City of York, 142 F.3d 58, 67 (2d Cir. 1998) ("Where the language is ambiguous, we focus upon the `broader context' and `primary purpose' of the statute.")). Generally, in those cases where the language is unclear, courts look to the legislative history to derive Congress's intent. Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984) (where "resolution of a question of federal law turns on a statute and the intention of Congress, we look first to the statutory language and then to the legislative history if the statutory language is unclear.").
The Government argues that the plain language of the Analogue Statute unambiguously supports a disjunctive reading. Citing United States v. Greig, 144 F. Supp.2d 386 (D.V.I. 2001), the Government points to the structural position of the three clauses listed in relation to the words preceding the dash, and the fact that "or" is placed before the final clause. The Government also contends that the presence of the word "which" in each of the clauses in the statute signals that all are equally subordinate to a single main clause.
This argument, however, ignores the placement of the word "which" in the first clause of the statute. As pointed out by the defendants and by the court in United States v. Forbes, 806 F. Supp. 232 (D.Colo. 1992), the operative segments of the second and third prongs of 21 U.S.C. § 802(32)(A) both begin with the word "which," signaling the start of a dependent relative clause modifying a precedent noun. The precedent noun could be read to be the phrase "chemical structure" in clause (i), as the Forbes court suggested in its opinion. See Id. at 235. When one considers that the word "which" in the first prong of the statute is in the middle of the phrase, the lack of parallel construction indicates that the three prongs of the statute were not necessarily intended to be equally subordinate. Thus, the statute's language can be fairly read as requiring a two-pronged definition of "controlled substance analogue."
Any ambiguities as to the manner in which the statute should be constructed are resolved when one examines the results that would result from the Government's reading and contrasting those results with the statute's purpose. As pointed out by the Forbes court,
If I adopt the government's construction and read clause (ii) independently, alcohol or caffeine would be controlled substance analogues because, in concentrated form, they can have depressant or stimulant effects substantially similar to a controlled substance. Likewise, if I read clause (iii) independently, powdered sugar would be an analogue if a defendant represented that it was cocaine, effectively converting this law into a counterfeit drug statute. In both cases, a defendant could be prosecuted for selling a controlled substance analogue even though the alleged analogue did not have chemical structure substantially similar to a schedule I or II controlled substance.
Forbes, 806 F. Supp. at 236. In sum, the Government's disjunctive interpretation of the Analogue Act would make virtually any substance prosecutable under the statute, limited only by the discretion of the prosecutor.
The legislative history behind 21 U.S.C. § 802(32(A) provides some guidance in this regard. As both sides point out, and as the courts emphasized in both Forbes and Greig, Congress considered several versions of the Analogue Statute before arriving at the present language. In July 1985, the Senate began debating a proposed "Designer Drug Enforcement Act of 1985" (S.1417), later redesignated the "Controlled Substance Analog Enforcement Act of 1985" (S.1437). The text of the Senate's bill used a two-pronged definition for a controlled substance analogue: either the substance has a substantially similar chemical structure or it was "specifically designed" to produce an effect substantially similar to a scheduled drug. In 1986, the House of Representatives debated its own version of the bill entitled the Designer Drug Enforcement act of 1986 (H.R. 5246). This bill also used a two-pronged approach with a definition almost identical to the current definition. However, the early House version added the word "and" after clause (i) and combined the last two clauses of the current version into clause (ii), separated by the word "or."
Both the Government and the Defendants point to this drafting history in support of their positions. Adopting the conclusion of the Forbes court that Congress "essentially adopt[ed] the House definition" in the final version of the statute, Forbes, 806 F. Supp. at 236, the Defendants argue that the intent of the drafters is to be inferred from the language of House draft bill. The Government, meanwhile, asserts that because the House draft bill contained the word "and" after the first definitional prong, and the word does not appear in the statute as codified, Congress deliberately intended the three clauses to stand separately. This same logic was employed by the Greig court, which found the Congressional modifications to the House version as compelling evidence that Congress fully intended 21 U.S.C. § 802(32)(A) to allow for three separate and independent bases of prosecution. See Greig, 144 F. Supp.2d at 390.
The purpose of the Analogue Statute can be gleaned from a closer examination of the legislative history, which in turn sheds light on the Congressional intent. When the Senate version of the Analogue Statute was originally conceived, the stated purpose was "to prohibit persons who specifically set out to manufacture or to distribute drugs which are substantially similar to the most dangerous controlled substances from engaging in this activity." S. Rep. No. 99-196, at 5 (1985). This same purpose was articulated a year later in the House version of the bill, which, as the Forbes court points out, focused on underground chemists who seek to evade the drug laws by slightly altering a controlled substance. See Forbes, 806 F. Supp. at 235; H.R. Rep. No. 948, 99th Cong., 2d Sess. 4 (1986). Clearly, the targets of the statute were not pushers of counterfeit drugs that bear no chemical similarity to scheduled narcotics, but ill-intentioned manufacturers and distributors of drugs that, when altered in their chemical structure, resembled those that had already been scheduled.
The Government, citing Greig, argues that available Senate materials demonstrate an intent to pass a broader statute. The Government relies principally on the statements of Assistant Attorney General Stephan S. Trott to the Senate Judiciary Committee prior to passage of the Analogue Act, in which he recommended against a proposal by the American Chemical Society to merge the chemical structure and chemical effects prongs so that the prosecution would have to prove substantial similarity with regard to both chemical structure and to intended effect. See Controlled Substance Analogs Enforcement Act of 1985: Hearing before the Committee on the Judiciary, United States Senate, S. Hrg. 99-948, 99th Cong., First Session on S. 1437 (September 18, 1985), Serial No. J-99-49, at 35 (Letter from Stephan J. Trott to Chairman, Committee on the Judiciary, United States Senate, dated September 30, 1985).
However, the Trott letter cited by the Government and the Greig court concerned the interpretation of particular language in the Senate bill that was omitted from the final version of the statute, i.e., that a controlled substance analogue be "specifically designed to produce an effect substantially similar to that of a Schedule I or II controlled substance." S. 1437 (emphasis added). See also 132 Cong. Rec. 26099, 26103 (1986) (language present in later version of bill); 132 Cong. Rec. 30322, 30329 (1986) (same). The House version omitted the requirement of specific intent in favor of language requiring only that a controlled substance analogue actually have a substantially similar effect, but balanced this more inclusive language with an additional requirement of substantially similar chemical structure. See H.R. Rep. No. 948, 99th Cong., 2d Sess. 2 (1986).
Both of these were ways of limiting the scope of the statute to target primarily the "underground chemists" targeted by Congress. The Senate addressed the problem of overbreadth by requiring specific intent, and the House by requiring a two-prong test including substantial similarity of chemical structure. There is no indication in the legislative history that Congress intended to dispense with both limiting provisions and create a statute in which nearly any substance could be prosecuted as a controlled substance analogue. Because the Senate language has entirely disappeared from the statute, the intent of Congress to limit its scope can best be given effect through the conjunctive interpretation.
B. A Hearing Will be Held to Determine Whether the Analogue Statute is Unconstitutionally Vague
Having adopted a conjunctive reading of the Analogue Statute, the next task is to determine whether the statute is unconstitutionally vague as applied to this case. Defendants argue that the statute is void for vagueness under the Fifth Amendment because the "substantially similar" language, used to describe both the chemical structure and the effect of an analogue in comparison to a controlled substance, is insufficiently precise.
Although a statute may be challenged for vagueness on its face or vagueness as applied to the defendants' specific conduct, it is generally accepted that "[v]agueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." United States v. Mazurie, 419 U.S. 544, 550 (1975). Consistent with the due process concerns behind the doctrine, this vagueness-as-applied analysis consists of a two part test: a court must first determine whether the statute "give[s] the person of ordinary intelligence a reasonable opportunity to know what is prohibited and then consider whether the law provide[s] explicit standards for those who apply [it]. . . . Because the statute is judged on an as applied basis, one whose conduct is clearly proscribed by the statute cannot successfully challenge it." United States v. Nadi, 996 F.2d 548, 550 (2d Cir.) (internal citations and quotations omitted); see also Kolender v. Lawson, 461 U.S. 352, 357 (1983) (void-for-vagueness doctrine "requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement").
Both Roberts and Toback raise arguments under the "notice" prong of the void-for-vagueness doctrine. First, they attack the language used in the first clause of 21 U.S.C. § 813(32)(A) by arguing that, given that the Government must prove that 1,4 butanediol is "substantially similar" in chemical structure to GHB, the Analogue statute is fatally vague because there is no "expert consensus" that 1,4 butanediol is in fact substantially similar in chemical structure to GHB. Second, each of the defendants attacks the phrase "substantially similar" as it is used more broadly throughout 21 U.S.C. § 813(32)(A). Roberts argues that the vagueness of the Analogue Statute as applied to his conduct is shown by the fact that he did not believe he was breaking the law. Toback argues that the term "substantially similar" is so subjective, and an understanding of the statute is so dependent on scientific knowledge, that it failed to apprise him, a non-scientist, that sales of Rejoov for human consumption were illegal.
Because this Court is compelled to analyze the vagueness question as applied to the facts at hand, and because the Analogue Statute requires the Government to prove that 1,4 butanediol is substantially similar to GHB in both its chemical structure and its effect on the central nervous system, a hearing will be held to determine whether the statutory definition as applied to 1,4 butanediol under the circumstances here is unconstitutionally vague.
II. The Indictment Does Not Violate the APA
Toback raises the additional argument that the indictment should be dismissed for alleged violations of the APA. Essentially, he argues that when the DEA initiated an investigation into potential illegal conduct by Toback — specifically, the distribution of 1,4 butanediol from his health food store — it made a decision that 1,4 butanediol is an analogue of GHB without even notifying the public that possession or sale of 1,4 butanediol was against the law. He argues that this decision was subject to the notice and hearing requirements of the APA, see 5 U.S.C. § 551, 553, and, because the DEA never notified the public of its decision and the public was not given opportunity to contest it, Toback was denied due process of law.
Toback's theory is without merit. The DEA in this case did not engage in rulemaking, but rather conducted an investigation of Toback and others for violating 21 U.S.C. § 802(32)(A), a statute that had already been duly enacted into law. Toback provides no authority for, and this Court is not aware of any authority supporting, the position that by initiating an investigation into statutorily proscribed conduct, the DEA has engaged in "rulemaking" subject to the strictures of the APA.
Although Toback concedes the legislative legitimacy of the Analogue Statute, his position would necessarily undercut the very purpose of that statute. Under his theory, the DEA would be precluded from investigating any substance that it believes might be an illegal analogue unless and until its decision to do so is vetted by the public through the APA notification and hearing If Toback's argument were correct, and notice and hearing were required every time a new substance is targeted as a potential analogue, the statute would serve no purpose whatsoever, and certainly not its intended one.
An examination of the relevant case law makes this point clear. In United States v. Caudle, 828 F.2d 1111, (5th Cir. 1987), which Toback cites, the Fifth Circuit affirmed the dismissal of indictments charging defendants with distributing MDMA (commonly known as ecstacy, now a Schedule I substance) because it found that the DEA had failed to follow the requisite procedure for temporarily listing the drug as a controlled substance. Caudle, 828 F.2d at 1113.
However, subsequent to that decision, both the Fifth Circuit and other courts, while acknowledging that MDMA had never been properly scheduled due to the DEA's failure to follow proper rulemaking procedure, upheld prosecutions of MDMA under the Analogue Statute. See, e.g., United States v. Desurra, 865 F.2d 651, 652 (5th Cir. 1989) ("[b]ecause [the DEA's] efforts to list MDMA were temporarily stymied, the DEA must prosecute the [substance] under the Controlled Substance Analogue Act"); see also United States v. Mitcheltree, 940 F.2d 1329, 1335 (10th Cir. 1991) (discussing the DEA's failure to schedule MDMA, but noting that MDMA could nonetheless be treated as a controlled substance pursuant to the Analogue Statute); United States v. Raymer, 941 F.2d 1031, 1045 (10th Cir. 1991) (same); United States v. Franz, 818 F. Supp. 1478, 1481 (M.D.Fla. 1993) ("the invalidation of the DEA's initial attempts to place MDMA on Schedule I does not . . . render as invalid a prosecution . . . under the Analogue Act for alleged acts involving MDMA during the period when MDMA was properly classified as an analogue"). As these cases demonstrate, prosecutions under the Analogue Statute do not trigger the notice and hearing requirements of the APA.
For these reasons, Toback's request that the indictment be dismissed for failure to comply with the APA, or for a hearing to determine whether the DEA abided by the APA's requirements when it conducted its investigation, is denied.
III. Toback is Not Entitled to a Severance
Toback moves to sever his trial from that of his co-defendant Roberts. Toback posits that a joint trial will prejudice him because of the "spillover" effect of the Government's evidence against Roberts and because of the possibility of hostile defenses in this case. Neither of these concerns entitles Toback to a severance.
Federal Rule of Criminal Procedure 8(b) provides that defendants alleged to have participated in related criminal conduct may properly be charged in the same indictment. "'[T]here is a preference in the federal system for joint trials of defendants who are indicted together.'" United States v. Salameh, 152 F.3d 88, 115 (2d Cir. 1998) (quoting Zafiro v. United States, 506 U.S. 534, 537 (1993)), cert. denied, 119 S.Ct. 885 (1999). This preference "is particularly strong where, as here, the defendants are alleged to have participated in a common plan or scheme." Salameh, 152 F.3d at 115; see also United States v. Cardascia, 951 F.2d 474, 482 (2d Cir. 1991); United States v. Turoff, 853 F.2d 1037, 1042 (2d Cir. 1988); United States v. Arbalaez, No. 98 Cr. 941, 1999 WL 980172, *8-*9 (S.D.N.Y. Oct. 27, 1999).
Defendants are protected from any prejudice arising out of such joinder by Federal Rule of Criminal Procedure 14. Under Rule 14, a district court may sever a defendant from the trial of his co-defendants "[i]f it appears that a defendant . . . is prejudiced by a joinder of offenses or of defendants in an indictment . . . or by such joinder for trial together. . . ." Fed.R.Civ.P. 14. However, a defendant urging severance must shoulder the "`extremely difficult burden'" of showing that he would be so prejudiced by the joinder that he would be denied a constitutionally fair trial. United States v. Casamento, 887 F.2d 1141, 1149 (2d Cir. 1989) (quoting United States v. Carpenter, 689 F.2d 21, 27 (2d Cir. 1982); see also United States v. Rosa, 11 F.3d 315, 341 (2d Cir. 1993); United States v. Torres, 901 F.2d 205, 230 (2d Cir. 1990). A court "should grant a motion for severance `only if there is a serious risk that a joint trial would compromise a specific trial right of the moving defendant or prevent the jury from making a reliable judgment about guilt or innocence.'" United States v. Miller, 116 F.3d at 679 (quoting Rosa, 11 F.3d at 341).
Despite Toback's claim that he and Roberts acted independently of one another, Roberts and Toback are charged with being co-conspirators in the same, single conspiracy. The Government's briefs indicate that it intends to prove at trial that Toback and Roberts conspired with each other to purchase, sell and distribute 1,4 butanediol in a scheme whereby Roberts sold Rejoov to Toback, and ultimately Toback sold Rejoov to his own customers. Thus, even were Toback and Roberts charged separately, each defendant's actions would be provable as acts in furtherance of the common conspiracy in the other's trial. See United States v. Neresian, 824 F.2d 1294, 1304 (2d Cir. 1987).
Toback's "spillover" argument stems primarily in his belief that the Government may present evidence of greater weight and quantity against Roberts than against Toback. He argues that the government may introduce evidence of an alleged wholesale manufacturing operation by Roberts in which Toback claims he was never involved. However, "differing levels of culpability and proof are inevitable in any multiple defendant trial, and, standing alone, are insufficient grounds for a separate trial." United States v. Chang An-Lo, 851 F.2d 547, 557 (2d Cir. 1988); see also United States v. Bueno-Risquet, 799 F.2d 804, 813 (2d Cir. 1986) (joinder proper even though several defendants participated in only part of the conspiracy); United States v. Panza, 750 F.2d 1141, 1149 (2d Cir. 1984) (some co-defendants nearly always more culpable than others; United States v. Aloi, 511 F.2d 585, 598 (2d Cir. 1975) ("differences in degree of guilt and possibly degree of notoriety of the defendants" not sufficient grounds for separate trials). Indeed, the Second Circuit has repeatedly held that differences in the quantity of evidence are inevitable in a multi-defendant trial. See, e.g., United States v. Ebner, 782 F.2d 1120, 1127 (2d Cir. 1986); United States v. Stirling, 571 F.2d 708, 733 (2d Cir. 1978). In this regard, a defendant's assertion that he will be prejudiced by the admission of evidence relating to transactions in which he claims he was not involved does not, in itself, justify severance. See United States v. Uccio, 917 F.2d 80, 88 (2d Cir. 1990); see also United States v. Alegria, 761 F. Supp. 308, 312 (S.D.N.Y. 1991); United States v. Brown, 744 F. Supp. 558, 561 (S.D.N.Y. 1990).
Holding separate trials has the potential to be particularly burdensome in a case such as this, where the Government intends to introduce expert scientific evidence on the analogue issue. To hold two trials would require the Government to twice pay expert fees and expenses to the same or similar witnesses, and would require proving many of the same transactions. If it is later determined that any actual prejudicial "spillover" might occur here, this Court reserves the power to give limiting instructions to the jury that it must assess the evidence against each defendant separately from the evidence against the other defendant. See United States v. Diaz, 176 F.3d 52, 103 (2d Cir. 1999).
Toback's second argument, that there is a potential for hostile defenses, is also unpersuasive. Generally, mutually antagonistic defenses, or the attempt of one defendant to save himself by inculpating another, does not require that defendants be tried separately. See Diaz, 176 F.3d at 104. Severance under these circumstances should only be granted "if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants or prevents the jury from making a reliable judgment about guilt or innocence." Id. (quoting Zafiro, 506 U.S. at 539).
Here, Toback argues that hostility would result if Roberts argues that he was selling Rejoov as a floor cleaner and not for human consumption and that Toback was illegally selling the product for human consumption. This hypothetical scenario hardly qualifies as a serious risk to Toback's rights at trial. Toback has already made statements to the DEA admitting that he sold Rejoov for human consumption, limiting any possible prejudice that might come from such a statement. Moreover, even if Roberts chooses to argue he was not selling Rejoov for human consumption, Toback has failed to articulate why such a defense depends on, or would be bolstered by, the further argument that Toback was doing so.
For the reasons stated, Toback has not met the heavy burden to justify a severance in this case. Therefore, his motion for a separate trial is denied.
IV. Toback's Motion to Preclude the Government from Introducing Tape Recordings of Rejoov Sales at Trial is Premature
Toback requests this Court to preclude the Government from introducing at trial certain tape recordings related to the sale of Rejoov to DEA agents, claiming that the recordings are of such poor quality as to render the substance unintelligible. Because this request is premature, it will be denied.
The standards for admitting audio tapes into evidence are well-settled in this Circuit. A tape recording is admissible "[u]nless the unintelligible portions are so substantial as to render the recording as a whole untrustworthy." United States v. Arango-Correa, 851 F.2d 54, 58 (2d Cir. 1988). Toback challenges the admissibility of four audiotapes produced by the Government, N9, N14 and 15, and N41, as being virtually inaudible. However, the Government claims that it has yet to determine whether it intends to introduce any audio tapes as evidence at trial, as it is currently in the process of having the sound quality of certain of the tapes it has produced to the defendants enhanced. Until that process is completed and the government produces to defendants enhanced versions of those tapes it intends to introduced, a motion to exclude any such tapes is premature. If, at that juncture, Toback still contends that the tapes are so unintelligible that they lack probative value, he will have the opportunity to request an audibility hearing at which he can challenge the admissibility of the enhanced tapes.
V. Toback's Failure to Submit a Personal Affidavit Bars Him from Prevailing on His Suppression Claim
Toback requests the Court to suppress oral statements he made to DEA Agents after his arrest, while being transported to DEA headquarters in New York. The motion is denied as Toback has failed to present his claim through an affidavit of an individual with personal knowledge of the relevant facts.
It is well-settled that a defendant is not entitled to an evidentiary hearing merely because he has filed a motion arguing that his Constitutional rights have been violated. Rather, such a motion must be supported by an affidavit that contains not just a "bald assertion that a statement was involuntary" but a "factual basis for such a characterization." United States v. Mathurin, 148 F.3d 68, 69 (2d Cir. 1998). This Circuit has repeatedly made clear that attorney affidavits are insufficient to trigger a hearing, and that a defendant is required to first allege facts which, if proved, would require the granting of relief. See United States v. Pena, 961 F.2d 333, 339 (2d Cir. 1992). To meet this burden, a defendant must, at a minimum, present his claim through an affidavit of an individual with personal knowledge of the relevant facts. See United States v. Gillette, 383 F.2d at 848-49; see also United States v. Vasta, 649 F. Supp. 974, 986 (S.D.N.Y. 1986) ("[T]o raise a factual issue . . . such that a hearing is required, the defendant must support his claim with an affidavit based upon personal knowledge.").
Here, Toback has failed to allege any facts based on personal knowledge of the events relevant to his motion. Indeed, Toback himself has failed to submit an affidavit. Rather, his attorney has filed an attorney affidavit which is based, not on any personal knowledge, but on his characterization of DEA reports concerning the statements made by Toback. As this Circuit has made clear, this attorney affidavit is insufficient to meet Toback's burden. See, e.g., Pena, 961 F.2d at 339.
VI. Toback's Motion for a Hearing to Test the Reliability of the Government's Expert Evidence is Premature
Toback requests a hearing to determine whether the Government's proof that 1,4 butanediol is an analogue of GHB is based on "professionally reliable sources." Presumably, Toback seeks a hearing pursuant to Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) to determine whether the Government's expert evidence is admissible. This request, made prior to expert discovery, is premature and is therefore denied.
In Daubert, the Supreme Court held that, pursuant to Rule 702 of the Federal Rules of Evidence, a trial court has an obligation to ensure that scientific testimony is both relevant and reliable. In order to determine the reliability of the expert's opinions, the trial court must focus on the principles and methodology underlying those opinions and must determine whether the expert's opinion has "a reliable basis in the knowledge and experience" of the particular "discipline" underlying his expertise. Daubert, 509 U.S. at 592. However, a trial court is not required to hold a hearing on the admissibility of expert evidence, but may decide the Daubert issues without a hearing, so long as the parties "have provided a sufficient basis for the decision." Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., No. 93 Civ. 6876 (LMM), 2000 WL 1694321, at *1 (S.D.N.Y. Nov. 13, 2000) (quoting 4 Jack B. Weinstein Margaret A. Berger, Weinstein's Federal Evidence § 702.02[2] at 702-7 to 702-8 (2000)).
Here, the parties have not even exchanged expert discovery. There is therefore no basis as yet for this Court to determine whether a Daubert hearing is even necessary to determine the admissibility of the Government's expert evidence that 1,4 butanediol is an analogue of GHB. Similarly, there is no basis as yet for the Government to make a Daubert motion challenging the admissibility of the defendants' expert evidence, if any. According to the Government, it is in the process of interviewing potential experts and anticipates that it will be able to make disclosure of its expert evidence in the near future. At that time, Toback can renew this discovery and determine whether a Daubert hearing is warranted. Prior to that time, there is no basis for a hearing.
VII. Neither Defendant is Entitled to a Bill of Particulars
Both defendants seek a bill of particulars providing specific details regarding the conspiracy charged in Count One of the Indictment, as well as several other categories of information. For the reasons set forth below, these requests are denied.
A. Defendants Have Not Complied with Local Criminal Rule 16.1
Local Criminal Rule 16.1 requires counsel to attempt to resolve discovery matters before raising them with the Court. In relevant part, the Rule provides:
No motion addressed to a bill of particulars or answers or to discovery and inspection shall be heard unless counsel for the moving party files with the court simultaneously with the filing of the moving papers an affidavit certifying that said counsel has conferred with counsel for the opposing party in an effort in good faith to resolve by agreement the issues raised by the motion without the intervention of the court and has been unable to reach such an agreement.
Neither of the defendants' counsel included a Rule 16.1 Affidavit in his moving papers. Nor could they have done so, as counsel has apparently not yet conferred with the Government about the discovery which they now seek. The motions for bills of particulars is therefore denied based on this procedural default. See United States v. Ahmad, 992 F. Supp. 682, 684-85 (S.D.N Y 1998).
B. Defendants are Not Entitled to a Bill of Particulars Notwithstanding Their Failure to Comply with Rule 16.1
Notwithstanding their failure to comply with Local Criminal Rule 16.1, the defendants would not be entitled to a bill of particulars on the merits.
The proper scope and function of a bill of particulars is to furnish facts supplemental to those contained in the indictment that are necessary to apprise the defendant of the charges against him with sufficient precision so as to enable him to prepare his defense, to avoid unfair surprise at trial, and to preclude a second prosecution for the same offense. See Torres, 901 F.2d at 234; United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). "A bill of particulars is required "only 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 (quotation omitted).
"Generally, if the information sought by defendant is provided in the indictment or in some acceptable alternative form, no bill of particulars is required." Bortnovsky, 820 F.2d at 574. In other words, the defense cannot use a bill of particulars as a general investigative tool, United States v. Salazar, 485 F.2d 1272, 1277-78 (2d Cir. 1973), nor as a devise to compel disclosure of the Government's evidence prior to trial. United States v. Gottlieb, 493 F.2d 987, 994 (2d Cir. 1974). Moreover, it is improper to use a bill of particulars to force the Government to disclose the manner in which it will attempt to prove the charges in the Indictment and to reveal the Government's evidence regarding the precise manner in which the defendants committed those crimes. United States v. Wilson, 565 F. Supp. 1416, 1438-39 (S.D.N Y 1983); United States v. Andrews, 381 F.2d 377, 378 (2d Cir. 1967), cert. denied. In sum, the Government is not required to provide information that would, in effect, provide the defendant before trial with a preview of the Government's case, United States v. Simon, 30 F.R.D. 53, 55 (S.D.N.Y. 1962), lest the defendant tailor his own testimony to explain away the Government's case. United States v. Cimino, 31 F.R.D. 277, 279 (S.D.N.Y. 1962), aff'd, 321 F.2d 509 (2d Cir. 1963), cert. denied, 375 U.S. 974 (1964).
In this case, Roberts and Toback have already received an abundance of information about the charges in the Indictment. The charges are pled with specificity; the conspiracy charge discloses the dates when the conspiracy operated; it describes the defendants' respective roles in the conspiracy; and it describes the purpose of the conspiracy and the acts performed by each defendant in furtherance of the conspiracy. The Complaint provided to the defendants also provides a detailed accounting of what each of the defendants is alleged to have done with respect to both the conspiracy and the substantive counts in the Indictment.
In addition to the Indictment and the Complaint, the Government has provided the defense with two search warrant affidavits that contain details about the Government's investigation in this case. The Government has also provided discovery, including copies of pertinent documents seized from both defendants during the execution of the search warrants, UPS shipping records detailing the transactions entered into by Roberts and Toback allegedly in furtherance of the conspiracy, tape recordings of purported sales of Rejoov, and C.D. Roms containing information from the defendants' computers. Finally, the Government has invited the defendants to view the originals of these discovery materials and anything else seized from Roberts and Toback which has not been produced in hard copy form.
1. Toback's Requests
Toback asks the Government to provide him with details concerning the specific nature of the agreement between Toback and Roberts alleged in the Indictment. However, defendants are not entitled to obtain such details of the Government's case. See, e.g., United States v. Maltos-Peralta, 691 F. Supp. 780, 791 (S.D.N.Y. 1988). "`Acquisition of evidentiary detail is not the function of the bill of particulars.'" Torres, 901 F.2d at 233 (quoting Hemphill v. United States, 392 F.2d 45, 49 (8th Cir. 1968), cert. denied, 393 U.S. 877, 89 S.Ct. 176, 21 L.Ed.2d 149 (1968)). Because the nature of the agreement alleged by the Government is sufficiently disclosed in discovery materials already produced to Toback, as well as the Complaint and Indictment in this case, the Government has no obligation to provide a bill of particulars expanding on this subject.
Toback also requests details concerning the forfeiture allegations in the Indictment, specifically how much of the total alleged illegal gain is attributable to Toback and the proportionality of the alleged criminal activity at Westerly. All of the information sought through this request is either contained in the Indictment or in discovery materials produced by the Government, including UPS records indicating the amount of Rejoov allegedly purchased by Toback from Roberts, as well as the address to which Roberts allegedly shipped that product. No bill of particulars is required for this information.
2. Roberts' Requests
Roberts' requests are also denied. First, Roberts requests details about the conspiracy alleged in the Indictment and concerning the substantive count against Roberts, including the specific overt acts that the Government intends to prove, with a listing of dates, times, identities of co-conspirators and other details with respect to those acts. These requests call for the kind of evidentiary detail that is not required even in a bill of particulars and would unduly limit the Government's proof at trial. See United States v. Biaggi, 675 F. Supp. 790, 808-10 (S.D.N Y 1987); Wilson, 565 F. Supp. 1416, 1438-39 (S.D.N.Y. 1983), aff'd 750 F.2d 7 (2d Cir. 1984).
Second, Roberts seeks names and details concerning unindicted co-conspirators. To the extent that the defendant is entitled to this information, it is already contained in the discovery materials provided by the Government. Roberts is able glean the names and other details he seeks by reviewing that material. See, e.g., Panza, 750 F.2d at 1148; Torres, 901 F.2d at 234; United States v. Love, 859 F. Supp. 725, 738 (S.D.N.Y. 1994).
Third, Roberts requests the names of witnesses, potential witnesses, and persons involved in the investigation of this matter. The defendants are not entitled to premature disclosure of the Government's witness list. See United States v. Bejasa, 904 F.2d 137, 139-40 (2d Cir. 1990). Roberts and Toback will learn whom the Government intends to call as witnesses at trial when material pursuant to Giglio v. United States, 405 U.S. 150 (1972), is produced. Moreover, the Government is not obligated to provide the names of all potential witnesses it does not intend to call at trial, including any investigators and agents. This exceeds the scope of a proper bill of particulars and bears resemblance to a general investigative tool. See Salazar, 485 F.2d at 1277-78 (bill of particulars cannot be used as a general investigative tool).
Fourth, Roberts asks for details concerning Roberts' arrest and statements made by him to law enforcement personnel. The Government has represented to the Court that this information has already been provided in discovery materials.
Finally, Roberts requests an index of all material obtained by the Government during the course of this investigation. The Government has already provided, and is in the process of providing, discovery to the defendant as required under Rule 16 of the Federal Rules of Criminal Procedure. Rule 16 does not require the Government to provide a list or index of the documents produced.
VIII. Roberts' Additional Discovery Requests
In addition to the information sought through his request for a bill of particulars, Roberts seeks other pretrial discovery materials pursuant to Rule 16 of the Federal Rules of Criminal Procedure, Rule 404(b) of the Federal Rules of Evidence, Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).
As an initial matter, as discussed above, Roberts has failed to file an affidavit pursuant to Local Criminal Rule 16.1 in support of his discovery requests. His requests are therefore denied on this basis. Notwithstanding this procedural default, the requests are without merit for the reasons set forth below.
A. The Government Will Provide Notice of Its Intention to Offer Rule 404(b) Evidence in Accordance with the Federal Rules
Rule 404(b) requires the Government to provide notice of "the general nature" of other-crimes evidence where the Government intends to introduce such evidence at trial. The Rule further requires that such notice be "reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown." Fed.R.Evid. 404(b). No set timetable for notice is required, however, as evidence the Government may seek to offer at trial often changes as the proof crystallizes or as possible defenses are revealed at trial. See, e.g., United States v. Aguirre-Parra, 763 F. Supp. 1208, 1217 (S.D.N.Y. 1991). Accordingly, courts generally require only "reasonable" notice, with reasonableness determined by the circumstances of the case. See United States v. Kevin, No. 97 Cr. 763 (JGK), 1999 WL 194749, at *14 (S.D.N.Y. Apr. 7, 1999).
The Government has agreed that, two weeks prior to the commencement of trial, it will provide notice to Toback and Roberts of the general nature of the other-crimes evidence, if any, that it will seek to admit pursuant to Rule 404(b). This degree of notice will afford the defendants adequate time to prepare a defense to the charges against them. See, e.g., United States v. Torchelmann, No. 98 Cr. 1276 (JFK), 1999 WL 294992, at *4 (S.D.N.Y. May 11, 1999) (sanctioning a two-week notice requirement); United States v. Maisonet, No. S3 98 Cr. 817 (DC), 1999 WL 221111, at *1 (S.D.N Y Apr. 14, 1999) (same). The Government has also agreed to provide prompt notice thereafter of any other Rule 404(b) evidence of which it becomes aware.
B. The Government Has Not Failed to Comply With its Brady and Giglio Obligations
Roberts seeks a long list of discovery materials that he claims are available to him pursuant to Brady and Giglio. He argues that, under Brady and its progeny, he is entitled to such material upon request. The Government claims that it is unaware of any Brady material at present but has agreed to provide timely disclosure of any such material should it come to light. With respect to the Giglio material that has been requested, the Government claims that it will provide such material, if any, for each witness the Government intends to call at trial, at the time it provides prior statements of witnesses.
Pursuant to Brady v. Maryland, 373 U.S. 83, 104 (1963), the Government has a constitutional duty to disclose favorable evidence to the accused where such evidence is "material" either to guilt or to punishment. Favorable evidence required to be disclosed includes not only that which tends to exculpate the accused, but also evidence that may be used to impeach a Government witness. See Giglio, 405 U.S. at 154. These rules are embedded in the Due Process clause of the Constitution and are meant to protect a defendant's right to a fair trial by ensuring the reliability of a criminal verdict against him. See United States v. Bagley, 473 U.S. 667, 675-76, 105 S.Ct. 3375, 87 L.Ed.2d 481.
Although Roberts claims he is entitled to Brady material immediately upon request, the Government owes him no such constitutional duty. Recently, in United States v. Coppa, No. 01 Cr. 3031, 2001 WL 1178515 (2d Cir. Oct. 5, 2001), the Second Circuit clarified the scope and timing of the Government's obligations to produce exculpatory evidence pursuant to Brady and impeachment evidence pursuant to Giglio. With respect to the timing of such disclosures, the court held that the Government need only turn over material exculpatory and impeachment evidence in sufficient time for the defense to make effective use of such evidence at trial and, as a general rule, the Government has no constitutional duty to make immediate disclosure of such evidence upon a defendant's request. Coppa, 2001 WL 1178515, at *11 ("[A]s a general rule, Brady and its progeny do not require immediate disclosure of all exculpatory and impeachment material upon request by a defendant;" and "the time required for the effective use of a particular item of evidence will depend on the materiality of that evidence . . . as well as the particular circumstances of the case.").
In addition, a defendant may be denied a request for a pre-trial discovery order made pursuant to Brady where the Government has made a good-faith representation to the court and defense counsel that it recognizes and has complied with its disclosure obligations under Brady. See, e.g. United States v. Gallo, 1999 WL 9848, at *7 (S.D.N.Y. Jan. 6, 1999) (denying motion to compel production of Brady material based on Government's representations that "it is aware of its obligations under Brady . . . and will produce any Brady material to the defense well before trial"); United States v. Perez, 940 F. Supp. 540, 543 (S.D.N Y 1996) ("Courts in this Circuit have repeatedly denied pretrial requests for discovery orders pursuant to Brady where the government, as here, has made a good-faith representation to the court and defense counsel that it recognizes and has complied with its disclosure obligations under Brady."); United States v. Yu, No. 97 Cr. 102, 1998 WL 57079, at *4-*5 (E.D.N.Y. Feb. 5, 1998) (denying defense request that Government provide early disclosure of Brady material where Government acknowledged its continuing obligation to provide exculpatory material upon its discovery and assured that it would comply with that obligation). Here, the Government has acknowledged its duties under Brady and has stated that it is unaware of any Brady material regarding the defendants at present. Moreover, the Government has promised to provide timely disclosure of such material should it come to light. The Court accepts the Government's good-faith representation that it will fulfill its obligations. Therefore, no discovery order pursuant to Brady is necessary at this time.
With respect to Robert's requests for Giglio material, the Government has stated that it will provide such material for each witness it intends to call at trial at the time it provides prior statements of witnesses pursuant to the Jencks Act, 18 U.S.C. § 3500, i.e., one day prior to the day the witness is called to testify on direct examination, or, if additional time is reasonably required to review such material, sufficiently in advance of the witness's testimony to avoid any delay at trial. This schedule comports with the usual practice in this district and will allow defense counsel adequate time to prepare for cross-examination of Government witnesses as they appear at trial. See Gallo, 1999 WL 9848, at *7-*8 (S.D.N.Y. Jan. 11, 1999) (denying defendants' motions "to require the production of [Giglio and 3500 material] at this time" based on the Government's representations "that it will provide the required information sufficiently in advance of each witness's testimony to allow adequate time to prepare for cross-examination"); United States v. Mejia, No. 98 Cr. 4, 1998 WL 456257, at *1 (S.D.N.Y. Aug. 5, 1998) (denying "defendant's motion to compel the Government to produce all impeachment material under Giglio" based on the Government's representations "that it will make such information available . . . at the time that it provides prior statements of witnesses pursuant to the Jencks Act, 18 U.S.C. § 3500"); United States v. Gutierrez-Flores, 1994 WL 558034, at *3 (S.D.N.Y. Oct. 11, 1994); Aguirre-Parra, 763 F. Supp. at 1216 (approving production of Giglio material with 3500 material); United States v. Ruiz, 702 F. Supp. 1066, 1069-70 (S.D.N.Y. 1989) (approving Government agreement to provide impeachment material along with 3500 material on day before witness testifies), aff'd 894 F.2d 501 (2d Cir. 1990); Biaggi, 675 F. Supp. at 812 (S.D.N Y 1987) (same).
Accordingly, the defendants' request for production of Giglio material at this time is denied.
C. Roberts' Additional Requests
Finally, Roberts requests the following additional discovery pursuant to Rule 16 of the Federal Rules of Criminal Procedure: (1) information concerning a DEA chemist whose advice was used by the Government in preparing the complaint; (2) disclosure of documents relating to physical or mental examinations, scientific tests, or experiments conducted in connection with the investigation of this case; (3) expert witness information; and (4) charts, summaries, or calculations that the Government intends to offer as evidence at trial.
The Government has identified the name of the DEA chemist whose advice as used in preparing the complaint as Adrian S. Krawczeniuk, but has advised the Court and the defense that it does not intend to call Krawczeniuk as an expert at trial. The Government is therefore not required to produce expert discovery concerning Krawczeniuk at this time. As for the second and third requests listed above, the Government has agreed to produce the results of tests used in preparing its case and has stated that it will produce expert information to the extent required by Rule 16 after it has retained such experts to testify at trial. Finally, the Government is not required to produce information concerning charts, summaries, calculations or other evidence it intends to introduce at trial as Rule 16 does not require such production.
Conclusion
For the reasons set forth above, a hearing will be held the week of January 14 or such other time as meets the convenience of counsel and the court to determine whether the Analogue Statute is unconstitutionally vague as applied to Roberts and Toback. The motion to dismiss the Indictment for violation of the Administrative Procedures Act is denied. The motion to sever is denied, as are the remaining pretrial motions as discussed above.
It is so ordered.