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U.S. v. MACFARLANE

January 18, 1991

UNITED STATES OF AMERICA
v.
ROBERT G. MACFARLANE, MOHAMMED MUSTAKEEM.



The opinion of the court was delivered by: Lee, District Judge.

MEMORANDUM ORDER

On or about September 13, 1990, in the Western District of Pennsylvania, a Federal Grand Jury returned a one-count Indictment against the above-named defendants. Therein, it is specifically charged that from on or around August 12, 1990, and continuing thereafter to on or about August 16, 1990, the defendants did knowingly, intentionally and unlawfully conspire together and with one another and with persons both known and unknown to distribute and possess with the intent to distribute in excess of five hundred (500) grams of a mixture and substance containing a detectable amount of cocaine, a schedule II narcotic drug controlled substance, contrary to the provisions of Title 21, U.S.C. § 841(a)(1), and in violation of Title 21 U.S.C. § 846.

Before us for disposition are defendants' pre-trial motions. For the purpose of clarity, we will first address the pending motions of both defendants which are identical in form and substance followed by any separate remaining motions.

PRE-TRIAL MOTIONS*fn1

1. Motions for Early Disclosure of "Jencks" material.

2. Motions for Disclosure of Impeaching Evidence.

3. Motions to Preserve Evidence.

4. Motions for Bill of Particulars as to Conspiracy.

5. Motions for Notice of Prosecution of Intention to Use Evidence Arguably Subject to Suppression.

6. Motions to Interview Prospective Witnesses.

7. Defendant MacFarlane's Motion to Suppress Post Arrest Statements.

8. Defendant MacFarlane's Motion to Compel Government to Disclose Written Statement of Uncharged Misconduct.

9. Defendant Mustakeem's Motion for Discovery.

10. Defendant Mustakeem's Motion for Limited Release to Assist in Preparation of Defense.

11. Defendant MacFarlane's Request for a Hearing on Audibility of Government Tape Recordings.

BACKGROUND

On November 29, 1990, the Court heard argument on all pre-trial motions in the above-referenced matter. At the request of defendant MacFarlane, the record was kept open. The defendant Mustakeem agreed that the Court could defer its ruling on all of the Motions pending the introduction of additional evidence by MacFarlane. However, Mustakeem requested the Court to rule on the Motions identified in Nos. 9 and 10, supra.

In the interim, the Court entered an Order on December 27, 1990 with regard to Motion No. 10, denying said Motion. However, the Court directed the Warden of the Federal Correctional Institution at Morgantown, West Virginia, to permit Mustakeem's counsel to visit with him daily from 7:00 a.m. to 7:00 p.m., which is beyond the normal visiting hours.

With regard to Motion No. 9, at the direction of the Court, the government obtained information from the Administrative Assistant to the Warden of FCI Morgantown, Donald Belknick, which eventually led to the defendant's abandonment of this Motion as discussed hereinafter.

Also in the interim, at 8:37 a.m. on December 21, 1990, defendant Mustakeem filed a Motion to Review Detention Order previously entered on August 23, 1990. Counsel for Mustakeem requested the Court to conduct a hearing on his Motion on the same date it was filed with the Court since counsel would be out of town the following week. Due to previously scheduled matters, the Court was unavailable and argument on this and all outstanding motions was therefore scheduled for January 4, 1991.

On January 4, 1991, argument commenced without the benefit of MacFarlane's counsel who was unavailable because she was out of town. At this argument, defendant Mustakeem also abandoned his Motion to Review Detention Order because counsel conceded that the defendant could not effectively rebut the statutory presumption and instead, orally motioned to have his client removed from FCI Morgantown and placed in the Armstrong County Jail or some other nearby facility. Counsel's Motion was premised upon the fact that the distance from Pittsburgh to Morgantown, West Virginia, along with the fact that his client was under a twenty-three hour lock-up, made it very difficult to adequately prepare for trial.

A final hearing was scheduled for January 14, 1991, at which time defendant MacFarlane presented no testimony, but did make additional argument on his suppression issue, his request for early disclosure of the government's intention to use uncharged misconduct, the audibility of government tape recordings, and pre-trial release for trial preparation.

The Court hereinafter will discuss the Motions, including the defendant Mustakeem's Motions identified in Nos. 9 and 10.

DEFENDANT MUSTAKEEM'S MOTION FOR DISCOVERY

In his Motion, defendant Mustakeem indicates that since his detention in Butler County Jail and the Federal Correctional Institution in Morgantown, West Virginia, he and his counsel have had numerous telephone conversations regarding trial strategy. Defendant further points out that the pay telephones at FCI Morgantown have a sign posted on them which informs the inmate that all telephone calls will be monitored. In this light, defendant seeks to determine the following:

A. Were any telephone calls made by defendant monitored and/or recorded by any law enforcement or jail personnel? If so, defendant asks the Court to compel the government to prepare a log or present the records of any intercepted calls.

B. In particular, were any calls between defendant and his attorney monitored and/or recorded? If so, has the content of these calls been disclosed to anyone and, if so, to whom and when.

In response to defendant's Motion and pursuant to the Court's directive, the government prosecutor contacted the administrative assistant to the Warden of FCI Morgantown, Mr. Donald Belknick, to determine the Bureau of Prison's policy with regard to the monitoring of prisoner's telephone calls from prison.*fn2 The sum and substance Of the government's representation on this issue, is that the government does not have in its possession any information germane to defendants' Motion. Based upon this representation, the ...


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