98 Cr. 958 (SKW)
April 15, 2002
OPINION AND ORDER
Defendant Leonardo Triana-Mateus (hereinafter "Triana-Mateus" or "Defendant") moves for the following: (1) preservation of certain evidence; (2) disclosure of impeaching evidence; (3) an evidentiary hearing to determine whether the Court should suppress evidence and statements made by the Defendant; (4) a Bill of Particulars; (5) disclosure of the names of the Government's trial witnesses; (6) production of further discovery under Federal Rule of Criminal Procedure 16; and (7) dismissal of portions of the Indictment.
I. SUMMARY OF THE INDICTMENT
The Indictment contains four counts. It alleges that Triana-Mateus and his co-defendants, Alvaro Abren, Mario Baum, Alfred Dauber, and Jorge Valencia, were involved in a large-scale money laundering ring from December 1993 through April 1998. Count One alleges that from December 1993 up through and including April 1998, the Defendants conspired to unlawfully launder money. Count Two alleges that from December 1993 up through and including April 1998, the Defendants were involved in depositing $58 million in cash cocaine proceeds into accounts at a bank in New York, New York, and caused $16 million of that money to be wire transferred to other accounts. Count Three alleges that from May 1995 up through and including September 1996, the Defendants knowingly transmitted money from the United States to a location outside of the United States with the intent to promote cocaine trafficking. Count Four alleges that from December 1993 up through and including April 1998, the Defendants made deposits of over $10,000 in cash cocaine proceeds on 400 different occasions into various accounts in New York, New York.
A. PRESERVATION OF EVIDENCE
Triana-Mateus seeks an order directing the Government to preserve all handwritten notes and tapes that could be considered statements" under the Jencks Act, 18 U.S.C. § 3500, and Brady v. Maryland, 373 U.S. 83 (1963). In response, the Government asserts that "consistent with the law and its longstanding practice, the Government intends to preserve all materials that could be considered Jencks Act, Brady or Giglio material." Government's Letter in Opposition to Defendant's Pretrial Motians, dated February 7, 2002 at 1 ("Gov't Opp'n"). The Court accepts the Government's representation with regard to such materials, and the Defendant's motion for preservation of evidence is granted to that extent.
B. DISCLOSURE OF EXCULPATORY AND IMPEACHING EVIDENCE
Triana-Mateus also moves for the disclosure of Brady/Giplio material 30 days before trial, including criminal histories, prior testimony and personnel files of every Government witness. He argues that In re United States (Coppa), 267 F.3d 132 (2d Cir. 2001), "articulates a more flexible standard for the Pre-trial Disclosure of Exculpatory and Impeaching Evidence [sic]." Def.'s Reply at 2. In response, the Government states that it will produce Giglio material relating to any witness "when it provides prior statements of a witness pursuant to the Jencks Act — that is, a day before the witness is called to testify, or, if additional time is reasonably required to review the material, sufficiently in advance of the witness' testimony to provide defense counsel with sufficient opportunity to use the material effectively at trial." Gov't Opp'n at 2. The Government similarly acknowledges its obligation to provide the defense with Brady material, and states that, to date, it knows of no Brady information that it has not already disclosed. See id.
The Second Circuit recently addressed the timing and disclosure requirements of Brady/Giglio material in In re United States, 267 F.3d at 136. In that case, the district court granted the defendants' motion to compel to disclosure of exculpatory and impeachment material far in advance of trial. However, the Second Circuit reversed that decision, stating that pursuant to Brady and its progeny, the timing of the disclosure must be "no later than the point at which a reasonable probability . . . exist[s] that the outcome [of the trial] would have been different [than] if an earlier disclosure had been made." In re United States, 267 F.3d at 142. Accordingly, "as long as a defendant possesses Brady evidence in time for its effective use, the government has not deprived the defendant of due process of law simply because it did not produce the evidence sooner."Id. at 144; see also United States v. Conley, No. 00 Cr. 0816, 2002 WL 252766, *2 (S.D.N Y Feb. 21, 2002);United States v. Reddy, No. 01 Cr. 58, 2002 WL 15610, *14 (S.D.N.Y. Jan. 7, 2002). The decision regarding the timing of the disclosure is the prosecutor's to make. See In re United States, 267 F.3d at 143 (noting that the respective determination of a Brady violation "creates both a responsibility and a problem for the prosecutor").
District courts in this circuit routinely accept the type of representation the Government has made with respect to Brady material.See, e.g., United States v. Savarese, No. 01 Cr. 1121, 2002 WL 265153, *2 (S.D.N.Y. Feb. 22, 2002); United States v. Hernandez, 99 Cr. 73, 2001 WL 674133, *3 (S.D.N.Y. June 15, 2001). Triana-Mateus has not shown that general Brady and Gigilio disclosures 30 days in advance of the trial are necessary to ensure due process of law and the Court sees no reason to so conclude. Therefore, the Defendant's motion for disclosure of exculpatory and impeachment evidence 30 days in advance of trial is denied. The Government's ultimate production of exculpatory material and impeachment evidence, however, must be timed so as to enable the Defendant to use the material effectively at trial.
C. SUPPRESSION OF STATEMENTS AND EVIDENCE
Additionally, Triana-Mateus moves for the suppression of statements that he made and evidence seized as a result of the stop of a car he was driving in Chicago, Illinois on February 22, 1995. Defendant argues that the initial stop of the vehicle he was driving was illegal, and therefore, all statements he made and all evidence seized as a result of the stop must be suppressed. Triana-Mateus asserts that he had an "expectation of privacy in the closed trunk of the car he was driving." Def.'s Mem. at 10, Ex. C Affidavit of Leonardo Triana-Mateus, dated January 22, 2002 at ¶ 5.
On the night of February 22, 1995, officers stopped a Chevrolet Caprice driven by Triana-Mateus for no visible registration and inoperable brake lights. The officers had been previously notified by the DEA as to the suspicious nature of the vehicle. Triana-Mateus offered a Texas driver's licence to the officers and was then questioned as to the ownership of the vehicle. Triana-Mateus informed the officers that Maria Perez was the owner of the vehicle, but when further questioned stated that he had no knowledge of the owner of the car. In their report, the officers noted that Triana-Mateus provided evasive answers relative to both the contents and ownership of the vehicle. As a result, both the Defendant and Alfred Dauber, the passenger in the vehicle and a co-defendant in this case, were transported along with the car back to the 14th District precinct house in order to determine ownership of the car. Subsequently, officers conducted a search of the vehicle and found two suitcases inside the trunk. Both defendants denied knowledge of the suitcases and their contents. Thereafter, the suitcases were opened and $541,232.00 was found. Triana-Mateus later related to officers that the suitcases were Dauber's, and keys that opened the suitcases were later found in Dauber's possession.
The following facts were taken from the Department of Justice Drug Enforcement Administration Report of Investigation, dated March 1, 1995, attached as Exhibit A to the Government's Letter in Opposition to the Defendant's Pretrial Motions, dated February 7, 2002. The Defendant does not dispute the facts in either of his affidavits.
A defendant has no right to exclude evidence as violative of his Fourth Amendment rights unless the rights violated were his own. See United States v. Sanchez, 635 F.2d 47, 63 (2d Cir. 1980). "It is well established that in order to challenge a search, a defendant must submit an affidavit from someone with personal knowledge demonstrating sufficient facts to show that (the defendant] had a legally cognizable privacy interest in the searched premises at the time of the search."United States v. Ruggiero, 824 F. Supp. 379, 391 (S.D.N.Y. 1993) (citations omitted).
Numerous decisions from this Circuit have emphasized that "mere occupancy [or control] of a car does not demonstrate the required `legitimate basis'" needed to maintain standing. United States v. Ruggiero, 824 F. Supp. at 392; see, e.g., United States v. Sanchez, 635 F.2d at 64; United States v. Smith, 621 F.2d 483, 487 (2d Cir. 1980),cert. denied, 449 U.S. 1086, 101 S.Ct. 875 (1981). In situations involving a search of a vehicle, where the defendant can demonstrate that he had the keys to the car and permission from the owner to drive it, he has standing to challenge the search of the car. See United States v. Ochs, 595 F.2d 1247, 1253 (2d Cir. 1979), cert. denied, 444 U.S. 955, 100 S.Ct. 435 (1979). However, where the car driven by a defendant with another defendant as a passenger was registered in someone else's name, and neither defendant showed any legitimate basis for being in the car, neither defendant has standing to challenge the search of that vehicle.See United States v. Smith, 621 F.2d 483. In United States v. Sanchez,supra, the defendant did not demonstrate ownership of the car nor license from the owner to drive or possess the car through the appearance of the registered owner in court, even though the defendant possessed the keys to the vehicle at the time he was stopped by police, leading to the proper denial of the defendant's motion to suppress evidence seized from the car.
In this case, the registered owner of the car has not come forward with an affidavit attesting to the Defendant's right to use the car in which he was stopped on February 22, 1995. Instead, the Defendant submitted a brief affidavit from himself stating that he "had the permission of Maria Perez, the owner of the Chevrolet Caprice, to use her car, had a key to the car, and had complete dominion and control over the car and the right to exclude others from the car." Def.'s Reply, Ex. A Affidavit of Leonardo Triana-Mateus, dated February 13, 2002 at ¶ 3. Therefore, Triana-Mateus has not sufficiently demonstrated ownership of the car or license from the owner to possess it. His possession of the keys and his unsupported statements claiming he had permission from the owner are not sufficient to give him a constitutionally protected interest in the privacy of the car. See United States v. Sanchez, 635 F.2d at 64. The Defendant had the burden to establish standing to object to the search and he has failed to do so. Therefore, Triana-Mateus' motion for an evidentiary hearing and to suppress evidence seized from the car on February 22, 1995 is denied.
Furthermore, were the Court to assume that Triana-Mateus has standing to object to the search of the vehicle, his request for an evidentiary hearing and suppression of the evidence seized from the car still must be denied. Where police have probable cause to believe that a driver has violated the traffic code, they may stop that driver. See United States v. Whren, 517 U.S. 806, 819, 116 S.Ct. 1769 (1996). However, "an officer's use of a traffic violation as a pretext to stop a car in order to obtain evidence for some more serious crime is of no constitutional significance. United States v. Dhinsa, 171 F.3d 721, 724-25 (2d Cir. 1998). The fact that officers may not issue a traffic ticket after making a stop does not change the legitimacy of the original stop. See United States v. Little, 945 F. Supp. 79, 82 (S.D.N.Y. 1996), aff'd, 133 F.3d 908 (2d Cir. 1998).
Considering that automobiles are movable and the opportunity to search may be lost once a search warrant is obtained, if probable cause exists to search a vehicle stopped on the highway the search may be conducted at that time. Chambers v. Mahoney, 399 U.S. 42, 51-52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) (warrantless search of a seized get-away car held proper: "the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant is obtained"). "Where the police may stop and search an automobile . . . they may also seize it and search it later at the police station." Coolidge v. New Hampshire, 403 U.S. 443, 463, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); see also United States v. Ochs, 595 F.2d at 1253-54. Once the vehicle is at the precinct, the police "had the same right to make a search of it as they had before, since, given the probable cause to search that existed, "there is little to choose in terms of practical consequences between an immediate search without a warrant and the car's immobilization until a warrant is obtained.'" United States v. Ochs, 595 F.2d at 1253 (quotingChambers, 399 U.S. at 51-52).
In this case, Triana-Mateus and Dauber were pulled over by police as a result of having no visible registration on the vehicle and no visible brake lights, thereby giving officers probable cause to stop the vehicle. See United States v. Whren, 517 U.S. at 819. Pursuant to United States v. Little, supra, the fact that the officers did not cite Triana-Mateus for the traffic violations is of no consequence here. Once the officers. had probable cause to stop the vehicle and neither Triana-Mateus nor Dauber presented the officers with any evidence of ownership of the vehicle or permission from the owner to be using it, the police had the right to take the vehicle and its occupants to the precinct to attempt to determine ownership of the vehicle. See United States v. Ochs, 595 F.2d at 1253. Once at the precinct, the officers were entitled to search the vehicle. See Coolidge, 403 U.S. at 463. Therefore, even if the Court were to grant standing to Triana-Mateus to challenge the legality of the stop and search of the car he was driving on February 22, 1995, his motion still must be denied.
D. BILL OF PARTICULARS
Triana-Mateus argues that he is entitled to A "bill of particulars pursuant to Federal Rule of Criminal Procedure 7(f). Specifically, he alleges that while Counts One, Two and Four of the Indictment allege illegal activity between December 1993 and April 1998, Count Three alleges illegal conduct between May 1995 and September 1996, and the Indictment does not contain any other allegations of overt acts made by the Defendant.
Rule 7(f) . . . permits a defendant to seek a bill of particulars in order to identify with sufficient particularity the nature of the charge pending against him, thereby enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense. . . . Generally, if the information sought by the defendant is provided in the indictment or in some acceptable alternative form, no bill of particulars is required.United States v. Bortnovsky, 820 F.2d 572, 5274 (2d Cir. 1987); see also United States v. Conley, 2002 WL 252766 at *4
The decision whether to grant a bill of particulars rests within the sound discretion of the district court. See United States v. Cephas, 937 F.2d 816, 823 (2d Cir. 1991), cert. denied, 502 U.S. 1037, 112 S.Ct. 884 (1992); United States v. Reddy, 2002 WL 15610 at *5 The Second Circuit has "consistently sustained indictments which track the language of a statute and, in addition, do little more than state time and place in approximate terms." United States v. Salazar, 485 F.2d 1272, 1277 (2d Cir. 1973) (citing United States v. Fortunato, 402 F.2d 79, 82 (2d Cir. 1968)). Therefore, a "bill of particulars should be 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." United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990); United States v. Conley, 2002 WL 252766 at *4.
A bill of particulars is not meant to be a tool to compel disclosure of the Government's case before trial. See United States v. Gottlieb, 493 F.2d 987, 994 (2d Cir. 1974); United States v. Nova-Nunez, No. 96 Cr. 599, 1997 WL 30965, *4 (S.D.N.Y. Jan. 24, 1997). The Government is not required to disclose the manner in which it will attempt to prove the charges, nor the means by which the crimes charged were committed. Therefore, "the Government is not required to provide information that would, in effect, give the defendant a preview of the Government's case before trial." United States v. Conley, 2002 WL 252766 at *4.
In deciding a motion for a bill of particulars, "[t]he important question is whether the information sought is necessary, not whether it is helpful." United States v. Facciolo, 753 F. Supp. 449, 451 (S.D.N.Y. 1990). Here, the Government argues that the Defendant seeks the "wheres, whens, and with whoms" regarding the conspiracy. Gov't Opp'n at 8. Pursuant to United States v. Jimenez, 824 F. Supp. 351, 363 (S.D.N.Y. 1993), the Defendant is not entitled to such information, disclosure of which could serve to limit the Government's proof at trial. The Indictment in this case clearly specifies the names of Triana-Mateus' co-conspirators, the dates and places where and when the alleged events occurred, and the means and methods by which the conspiracy was carried out. Additionally, the Government has provided Triana-Mateus with ample discovery regarding the allegations made in the Indictment, including documents, tape recordings, his post-arrest statements, a police report and a surveillance video of defendant. The information sought by Triana-Mateus is exactly the type "routinely denied in the Second Circuit," United States v. Henry, 861 F. Supp. 1190, 1193 (S.D.N.Y. 1994), and therefore, Defendant's request for a bill of particulars is denied.
E. RULE 404(b) NOTICE
Triana-Mateus moves for the immediate disclosure of "a list of all crimes, wrongs or similar acts that the Government intends to offer pursuant to Rule 404(b) of the Federal Rules of Evidence of the conduct of [Triana-Mateus' alleged] co-conspirators to be introduced in evidence under the Pinkerton Doctrine 328 U.S. 640 (1946)." Def.'s Mem. at 12.
Rule 404(b) allows the admission of evidence of other crimes, wrongs, or acts in order to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon the request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excludes 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).
The Government represents that two weeks prior to the commencement of trial, it shall provide the following information to the Court and to counsel for the Defendant: "(1) notice of other crimes or bad acts, if any, that the Government will seek to prove at trial pursuant to Rule 404(b); and (2) notice of significant criminal acts not specified in the Indictment that will be the subject of testimony at trial." It has been the practice of courts in this circuit to deem notice afforded more than ten working days before trial as "reasonable" within the meaning of Rule 404(b). see, e.g., United States v. Greco, No. 85 Cr. 961, 1994 WL 202605, *2 (S.D.N.Y. May 23, 1994); United States v. Richardson, 837 F. Supp. 570, 575 (S.D.N.Y. 1993). The Defendant's motion is granted in so far as the Government is hereby ordered to provide notice of its Rule 404(b) evidence no later than two weeks prior to the commencement of the trial in this matter. This disclosure schedule will allow the Court to consider any Rule 404(b) motions in limine without interruption of the trial.
F. DISCLOSURE OF GOVERNMENT WITNESSES
Triana-Mateus also seeks a list of the names and addresses of the witnesses (or co-conspirators) that the Government plans to use at trial.
Although a court has the discretion to compel pretrial disclosure of the identity of government witnesses, there is no general right to such disclosure. See United States v. Cannone, 528 F.2d 296, 301 (2d Cir. 1975). "A court should compel the government to disclose the identities of its witnesses only when the defendant makes a "specific showing of the need for pretrial disclosure of witnesses.'" United States v. Juliano, No. 99 Cr. 1197, 2000 WL 640644, *3 (S.D.N.Y. May 18, 2000) (quotingUnited States v. Kevin, No. 97 Cr. 763, 1999 WL 194749, *15 (S.D.N.Y. Apr. 7, 1999)). "The most potent argument for compulsory disclosure of the identity of the prosecution s witnesses is that, without the benefit of such disclosure, the defense may be substantially hampered in its preparation for trial." United States v. Cannone, 528 F.2d at 301. However, "an abstract, conclusory claim" by a defendant that such disclosure is necessary is not sufficient. Id. at 302. Whether a defendant has made a sufficient specific showing of need is measured by the following factors:
(1) Did the offense alleged in the indictment involve a crime of violence? (2) Have the defendants been arrested or convicted for crimes involving violence? (3) Will the evidence in the case largely consist of testimony relating to documents (which by their nature are not easily altered)? (4) Is there a realistic possibility that supplying the witnesses' names prior to trial will increase the likelihood that the prosecution's witnesses will not appear at trial? (5) Does the indictment allege offenses occurring over an extended period of time, making preparation of the defendants' defense complex and difficult? (6) Do the defendants have limited funds with which to investigate and prepare their defense?United States v. Washington, 947 F. Supp. 87, 88 (S.D.N Y 1996) (quotingUnited States v. Turkish, 458 F. Supp. 874, 881 (S.D.N.Y. P978)). However, "[i]n determining whether disclosure of a witness list is appropriate, the defendant's specific need for the information should be balanced against the possible dangers accompanying disclosure (i.e. subordination of perjury, witness intimidation, and injury to witnesses)." United States v. Kelly, No. 99 Cr. 422, 2000 WL 145468, *4 (S.D.N.Y. Feb. 8, 2000) (citation omitted). In sum, there must be "a specific showing that disclosure was 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 (2d Cir. 1990),cert. denied, 498 U.S. 921, 111 S.Ct. 299 (1990).
Triana-Mateus contends that he has made a specific showing of his need for disclosure of the names and addresses of the Government's witnesses prior to trial. He argues that he has never been arrested or convicted for a crime of violence; that the Indictment alleges offenses which occurred over an extended period of time, making preparation of his defense complex and difficult; that he has limited funds with which to investigate and prepare a defense; and that there is "no present indication that the disclosure of a witness' name prior to trial will result in the likelihood that the witness will be unwilling to testify at trial." Def.'s Mem. at 13-14. Additionally, Triana-Mateus asserts that most of the evidence in controversy includes information, such as names, dates and locations, which are not obviously alterable such as deposit slips, and other documents that are handwritten." Def.'s Mem. at 13.
It is uncontradicted that Triana-Mateus has not previously been convicted of a crime of violence, and that the Indictment alleges offenses which occurred over an extended period of time. See United States v. Shoher, 555 F. Supp. 346, 354 (S.D.N Y 1983) (holding that mail and wire fraud taking place over a seventeen-month period constituted an extended amount of time).
Also uncontroverted by the Government is Triana-Mateus' statement that most of the evidence in this matter is documentary. However, unlikeUnited States v. Rueb, No. 00 Cr. 91, 2001 WL 96177, *8 (S.D.N.Y. Feb. 5, 2001), which Triana-Mateus cites in support of his argument for disclosure of the names of the Government's witnesses, he has not demonstrated that the documentary evidence in this matter is voluminous and unwieldy. Moreover, he has been given "the names of key members of the enterprise charged," as well as "a detailed description of how the enterprise and its members operated." Gov't Opp'n at 11. Such information should allow the Defendant to adequately review the documentary evidence without a list of the Government's witnesses.
Additionally, many of Triana-Mateus' arguments in support of his motion for disclosure of the Government's list of witnesses are conclusory at best. Triana-Mateus provides no explanation for his assertion that he "has also suffered financial pressures" as a result of his extradition from Germany. Triana-Mateus has retained counsel in this case, an indication of his ability to defray the expenses associated with this matter. See United States v. Rueb, 2001 WL 96177 at *8 n. 3 (noting that court-appointed counsel has limited resources to review voluminous discovery produced by the government). Furthermore, Triana-Mateus does not provide support for his statement that the case is inherently complex and difficult." Def.'s Mem. at 14. The money laundering charges in the Indictment are rather specific as to who was involved and what occurred, and therefore, a witness list is not necessary to help the Defendant prepare for trial. Without further elaboration, abstract conclusory statements such as those above have been held to be inadequate to necessitate disclosure of the names of the government's witnesses. See United States v. Cannone, 528 F.2d at 301-02. Therefore, Triana-Mateus' motion for a list of the Government's witnesses is denied.
G. ADDITIONAL DISCOVERY PURSUANT TO RULE 16
Triana-Mateus moves for the disclosure of (1) all written and recorded statements made by the Defendant; (2) all written and recorded statements made by each of his co-defendants; and (3) reports of any scientific tests, examinations or analyses. The Government asserts that with respect to the first item requested, it has already provided the Defendant with two reports memorializing his statements to law enforcement officers, as well as two audio recordings, two DEA personal history forms and a videotape. See Gov't Opp'n at 11. The Government also asserts that it is not currently aware of any other written and recorded statements by the Defendant. See id. With respect to the third item requested, the Government declares that it is not currently aware of any scientific tests or examinations that were conducted in connection with this case.See id. The Court accepts the Government's representations and Triana-Mateus' motion is denied with regard to those two items.
The Government objects, however, to Triana-Mateus' request for all written or recorded statements made by each of his co-defendants. The Government argues that because it may call one or more of Triana-Mateus' co-defendants to testify at trial, such statements are not discoverable.
The general rule in this Circuit is that statements made by co-conspirators are not discoverable under Rule 16(a). See United States v. Percevault, 490 F. Supp. 126, 131 (2d Cir. 1974). Discovery of co-conspirator statements may, however, be permitted on a Rule 16 motion only if the government does not intend to call the co-conspirators as witnesses at trial. See id. A co-conspirator who testifies on behalf of the government is considered to be a witness under the meaning of the Jencks Act, 18 U.S.C. § 3500, see In re United States, 834 F.2d 283, 286 (2d Cir. 1987), and the Jencks Act provides the exclusive procedure for discovering statements that government witnesses have given to law enforcement agencies. See United States v. Novello, 410 F.2d 536, 543 (2d Cir. 1969), cert. denied, 396 U.S. 879, 90 S.Ct. 150 (1969). The district court has no inherent power to modify or amend the provisions of the Jencks Act to permit disclosure of such statements at any earlier time.See In re United States, 834 F.2d at 287.
To the extent that the Government will be calling certain co-conspirators as witnesses at trial, Defendant's motion to compel the disclosure of the written and recorded statements of those specific co-conspirators is denied. The statements of those co-conspirators shall be discoverable when they testify, pursuant to the provisions of the Jencks Act.
H. MOTION TO DISMISS PORTIONS OF THE INDICTMENT
Triana-Mateus also appears to move for the dismissal of two overt acts from the Indictment on the theory that the Government has improperly charged multiple conspiracies. He seems to be arguing that the overt acts described in the Indictment and attributed to the Defendant are the same acts contained in a 1995 Magistrate's Complaint, thereby comprising a multiple conspiracy under Federal Rule of Criminal Procedure 8(a). The Defendant also submits a request for a hearing under United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969) to focus on the declarations of his co-conspirators in order to determine whether the evidence shows proof of a multiple rather than a single conspiracy.
Under Geaney, statements proffered as co-conspirator statements may be admitted in evidence on a conditional basis, subject to a later submission of necessary evidence of prerequisites for admission of co-conspirator's statement. 417 F.2d 1116; see also Fed.R.Evid. 801(d)(2)(E).
A federal indictment may allege a conspiracy to commit multiple crimes. Fed.R.Crim.Proc. 8(a); United States v. Trippe, 171 F. Supp.2d 230 (S.D.N.Y. 2001). Whether the government has proven the existence of a conspiracy charged in an indictment and each defendant's membership in it, or instead, has proven several independent conspiracies, is a question of fact for a properly instructed jury. See id. at 238. A single conspiracy does not become a multiple conspiracy by "lapse of time, change in membership, or a shifting emphasis on its locale of operations." United States v. Aracri, 968 F.2d 1512, 1521 (2d Cir. 1992).
The Court finds that Triana-Mateus' argument in support of this point is unclear and incomprehensible. As noted by the Government, the Indictment is the controlling document in this case, and the Defendant has not suggested that the Indictment itself improperly contains charges of multiple conspiracies. See Gov't Opp'n at 12. Therefore, Defendant's motion to strike certain overt acts from the Indictment is denied.
I. LEAVE TO FILE ADDITIONAL MOTIONS
Triana-Mateus seeks permission to file additional motions for which the appropriateness and necessity may become apparent. The Court grants the request to the extent that it will consider allowing the Defendant to submit further motions upon a showing that the basis for the motion became known only subsequent to the date of this Order and could not have reasonably been discovered sooner.
For the foregoing reasons, Triana-Mateus' motions are granted in part and denied in part.