Summary
denying disclosure of witness list because defendant only claimed that it "might be beneficial to a proposed entrapment defense"
Summary of this case from U.S. v. ThompsonOpinion
No. 03 Cr. 484 (TPG).
October 18, 2004
OPINION
Defendant Albert Santoro has been indicted on one count of money laundering in violation of 18 U.S.C. § 1956. Defendant now moves for an order compelling the government
(1) to provide early disclosure of all Brady and Giglio material;
(2) to disclose all Jencks Act material during pre-trial discovery;
(3) to provide discovery pursuant to Fed.R.Crim.P. 16;
(4) to preserve and produce any handwritten notes taken during interviews of potential witnesses the government may call at trial;
(5) to disclose during pre-trial discovery any Fed.R.Evid. 404(b) evidence that the government intends to use at trial;
(6) to provide a witness list to the defendant at least 30 days prior to trial;
(7) to identify the confidential sources; and
(8) to disclose during pre-trial discovery any evidence that might have a bearing on whether any of defendant's actions were the product of entrapment by government agents or others acting at their request or direction.
The government opposes the motion on various grounds.
Facts
The Government's Allegations
The FBI began investigating defendant, a former Brooklyn assistant district attorney, for violations of 18 U.S.C. § 1956 in or about October 2002. The investigation involved a special agent of the FBI working in an undercover capacity. The undercover officer was introduced to the defendant by a mutual acquaintance, who was known to the defendant as "Joseph." During a meeting on or about October 19, 2002, defendant stated that, due to his work experience as a prosecutor, he knew various methods for effectively laundering money. On or about November 8, 2002, the undercover officer met defendant at defendant's law office and told defendant that an acquaintance needed to launder $100,000 in cash derived from the illegal sale of steroids. Defendant indicated that his fee for the transaction would be 20% of the laundered amount. On or about November 27, 2002, defendant met with the undercover officer and explained the nature of the laundering scheme. Defendant also stated that he did not mind laundering drug money, and he and the undercover officer reviewed potential cover stories for the transaction. On or about December 30, 2002, the undercover officer delivered $100,000 in small bills to the defendant at defendant's office. Defendant agreed to establish a foreign company to hold the funds in order to conceal their source. On or about January 6, 2003, the undercover officer returned to defendant's office where defendant gave him the documents necessary to move the money to the foreign company.
The defendant is now charged with one count of money laundering in violation of 18 U.S.C. § 1956. A trial date has not yet been set.
The Government's Disclosures
The government has already disclosed certain evidence to the defendant. In three productions on September 9 and December 15, 2003, and January 16, 2004, the government produced to defendant:
(1) fourteen audio cassettes and a CD-ROM containing defendant's statements on October 17 and 19, November 8 and 21, and December 30, 2002, and January 6, 2003;
(2) two CD-ROMs containing telephone conversations and voicemail messages involving defendant on November 8 and December 27, 30, and 31, 2002;
(3) three videotapes of meetings with defendant on November 27, December 23 and 30, 2002;
(4) a CD-ROM containing statements made by defendant on November 8, 2002;
(5) a CD-ROM reflecting two unrecorded telephone conversations with defendant on December 30, 2002;
(6) the search warrant and supporting affidavits for defendant's office at 40 Rector Street;
(7) a copy of the retainer agreement;
(8) a copy of a signed statement of source of assets and funds dated January 6, 2003;
(9) draft transcripts of audiotapes; and
(10) copies of the documents provided at the December 30, 2002 meeting.
Discussion
Disclosure of Brady and Giglio MaterialUnder Brady v. Maryland, 373 U.S. 83 (1963), the government is required to produce evidence that is materially favorable to the defense. The government is also required to disclose evidence that affects the credibility of government witnesses. Giglio v. United States, 405 U.S. 150 (1972). The defendant argues that the government should promptly disclose any such evidence in its possession. However, the Second Circuit has ruled that the government need only disclose such evidence so that there is sufficient time for its effective use at trial or at a plea proceeding. United States v. Coppa, 267 F.3d 132, 146 (2d Cir. 2001). The defendant does not allege that there is insufficient time to make effective use of any such evidence, should it in fact exist. Moreover, the government has stated its intent to produce such material no later than the Friday before the testimony of any witness, or earlier if the amount of such evidence is voluminous. The defendant's motion for an order compelling early disclosure of such material is therefore denied. Disclosure of Jencks Act Material
The Jencks Act provides that
In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.18 U.S.C. § 3500. The Jencks Act clearly limits a district court's power to order pretrial disclosure of witness statements that are not covered by Brady or Giglio. Coppa, 267 F.3d at 146. The defendant's motion for an order compelling such pre-trial disclosure is therefore denied.
Disclosure of Evidence Pursuant to Fed.R.Crim.P. 16
The government asserts, and defendant does not contest, that it has produced audiotapes and video cassettes containing defendant's statements made on October 17 and 19; November 8, 21, and 27; December 23 and 30; and January 6. The government has also produced copies of the documents provided at the December 30 meeting. The government thus represents that it has turned over all material in its possession that is discoverable under Rule 16. However, defendant claims that Rule 16(a)(1)(E) requires the government to disclose the statements of prospective government witnesses. Rule 16(a)(2) states that the discovery of statements made by prospective government witnesses is to be governed solely by the Jencks Act. Since there has not yet been any testimony in this case, the Jencks Act prevents this court from ordering such disclosure that is not already discoverable pursuant to Brady. Defendant's motion for an order compelling disclosure of Rule 16 material is therefore denied.
Preservation of Handwritten Notes Taken During Interviews of Potential Witnesses
The government has stated that it will preserve any handwritten notes taken during interviews of government witnesses. Defendant's motion for an order compelling such preservation is therefore denied as moot.
Rule 404(b) Notice
Fed.R.Evid. 404(b) requires that the government provide reasonable advance notice of any evidence of other crimes, wrongs, or acts committed by the defendant that it intends to introduce at trial. The government states that it will move this court for an order permitting the admission of evidence pursuant to Rules 404(b) and 609 at least two weeks prior to the trial. The defendant has made no showing that such advance notice would be unreasonable. Therefore, defendant's motion for an order compelling the government to disclose any potential 404(b) evidence at least 30 days before trial is denied.
Disclosure of the Witness List
A district court should require the government to provide a witness list only if the defendant makes a specific showing that such disclosure is both material to the preparation of the defense and reasonable in light of the circumstances surrounding the case. United States v. Bejasa, 904 F.2d 137, 139-40 (2d Cir. 1975). Defendant only claims that information obtained from the witnesses might be beneficial to a proposed entrapment defense. Defendant has therefore failed to make the requisite showing. United States v. Cannone, 528 F.2d 296, 301-02 (2d Cir. 1975). The defendant's motion for an order compelling pre-trial disclosure of the government's witness list is denied.
Disclosure of Identity of Confidential Informants
Similarly, a district court should not require the government to identify any confidential informant absent a showing that the informant's testimony would be materially helpful to the defense.United States v. Saa, 829 F.2d 1067, 1073 (2d Cir. 1988). In determining whether the informant's testimony is material, the court must consider the crime charged, the possible defenses, the possible significance of the informant's testimony, and other relevant factors. DiBlasio v. Keane, 932 F.2d 1038, 1042 (2d Cir. 1991). Defendant argues that an informant's identity should be disclosed where, as here, it could potentially support an entrapment defense. In DiBlasio, the Second Circuit held that when a defendant has introduced at trial evidence which, if believed, would establish an entrapment defense, the government must either produce the informant for testimony or disclose his identity and last known address to the defense. DiBlasio, 932 F.2d at 1043. However, the Second Circuit distinguished those cases where the defendant merely alleges the possibility of an entrapment defense. In such cases, mere conjecture or supposition about the possible relevancy of the informant's testimony is insufficient to warrant disclosure. DiBlasio, 932 F.2d at 1043. In this case, defendant has not yet presented any evidence which, if believed, would establish an entrapment defense. The defendant's motion to compel disclosure of the identity of confidential informants is therefore denied.
Disclosure of Evidence Relevant to a Potential Entrapment Defense
Defendant moves for an order compelling the government to disclose specific and precise information regarding the dealings between government agents and defendant, as well as between government agents and "Joseph." Defendant cites no case law or statutes in support of this motion. Insofar as defendant seeks information that would constitute Brady material, the government must disclose such information so that there is sufficient time for its effective use at trial or at a plea proceeding. Coppa, 267 F.3d at 146. Insofar as defendant seeks information discoverable under Rule 16(a)(1)(E), the government must disclose such information expeditiously. Since the government has stated that it will provide timely disclosure of all Brady material, and that it has already produced all evidence in its possession discoverable under Rule 16, the defendant's motion compelling disclosure is denied.
Conclusion
The defendant's motion for an order compelling certain disclosures by the government is denied.
SO ORDERED.