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
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.
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,
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
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 defendant
abandoned this Motion at the argument held on January 4, 1990,
to review defendant Mustakeem's pre-trial detention Order.
DEFENDANT MUSTAKEEM'S MOTION FOR LIMITED RELEASE TO ASSIST
IN DEFENSE PREPARATION
Defendant Mustakeem next asks the Court to authorize his
pre-trial release, limited in time and scope, for the sole
purpose of assisting in defense preparation. Essentially,
defendants argue that the travel time of approximately 11/2
hours to FCI Morgantown effectively deprives counsel and the
defendants of meaningful trial preparation. Defendant
Mustakeem argues his trial preparation is further hampered by
the fact the he remains under a twenty-three hour lock-up per
day pursuant to a decision made by FCI Morgantown officials.
In the alternative, defendant Mustakeem has orally moved to be
transferred from FCI Morgantown or some other nearby facility
to facilitate trial preparation.
We note at Part III of the Magistrate Judge's Order of
Detention Pending Trial the following relevant language: "The
defendant shall be afforded a reasonable opportunity for
private consultation with defense counsel."
18 U.S.C. § 3142(i)(3). This same subsection provides that a detainee may
be released for the purpose of trial preparation to the "extent
that the judicial officer determines such release to be
necessary for preparation of the person's
defense or for another compelling reason." 18 U.S.C. § 3142(i).
At argument, defendant failed to set forth any compelling or
otherwise persuasive justification to support his position for
a limited release vis-a-vis trial preparation. At the January
4, 1991, argument, counsel for Mustakeem and counsel for the
government agreed that the Court could independently
investigate the possibility of the defendant Mustakeem being
moved to the Armstrong County, Pennsylvania, jail. The Court
was advised that under the present conditions, it was not
possible to move the defendant Mustakeem to either the
Armstrong County, Pennsylvania, jail or the Butler County,
Pennsylvania, jail. Moreover, the Court determined that the
FCI at Morgantown, West Virginia, is approximately 85 miles
from the Federal Courthouse in Pittsburgh and the normal
driving time is one hour and twenty minutes, and the Armstrong
County, Pennsylvania, jail located in Kittanning,
Pennsylvania, is approximately 40 miles from the Federal
Courthouse in Pittsburgh and the normal driving time is one
hour. The U.S. Marshal Service indicated it would attempt to
move defendant Mustakeem to FCI Hancock, West Virginia,
located in Weirton, West Virginia, on or about January 25,
1991. FCI at Hancock, West Virginia, is approximately 45 miles
from the Federal Courthouse in Pittsburgh, and the normal
driving time is approximately one hour and ten minutes.
Therefore, the Court entered an Order denying the Motion as
stated, but instead, extended the hours currently made
available by FCI Morgantown for counsel's visits with his
In addition, the Court entered an Order directing the Warden
at FCI Morgantown, West Virginia, to permit both defendants to
communicate with their counsel on unmonitored telephones from
7:00 a.m. to 11:00 p.m.
DEFENDANTS' MOTIONS FOR EARLY DISCLOSURE OF "JENCKS"
Defendants move the Court for entry of an Order directing
the prosecution to provide to them, not less than ten (10)
days before the trial of this cause, all statements of the
type commonly referred to as "Jencks" material.
The Jencks Act, 18 U.S.C. § 3500(a), specifically provides
that no statement or report in the possession of the United
States which was made by a government witness or prospective
government witness shall be the subject of subpoena, discovery,
or inspection until such witness has testified on direct
examination in the trial of the case. In its Brief, the
government challenges, as excessive, defendants' request for
production of these materials not less than ten days prior to
the commencement of trial.
While we recognize that disclosure under this section is
required only at trial and that there is no requirement for
prior disclosure, we find it is reasonable, under the present
circumstances, to Order an earlier time for the release of
so-called "Jencks" material. Inasmuch as trial in this matter
has been set for January 28, 1990, an Order shall be entered
forthwith directing the government to furnish defendant with
all "Jencks" material by 10:00 a.m. on Friday, January 25,
DEFENDANTS' MOTIONS FOR DISCLOSURE OF IMPEACHING EVIDENCE
Defendants' request for "impeachment-type" Brady material
seeks the disclosure of all records and information that
reveals the following:
(A) All felony convictions, guilty verdicts, or
juvenile adjudications or guilty verdicts
attributed to any witness who may be called by
the prosecution, including but not limited to
relevant "rap sheets";
(B) All prior misconduct or bad acts attributed
to such witnesses;
(C) All consideration or promises of
consideration given to or for the benefit of such
(D) All criminal prosecutions, investigations,
or potential prosecutions pending or which could
be brought against
the witness, and probationary, parole or deferred
prosecution status of the witness, and any civil,
tax court, court of claims, administrative or
other pending or potential legal disputes or
transactions with the prosecution or any other
agency, state or federal;
(E) The existence and identification of each
occasion on which the witness has testified
before any court, grand jury, or other tribunal
or body in relation to the defendant or otherwise
bearing upon the facts of this case;
(F) The existence and identification or each
occasion on which each witness who is an
informer, accomplice, co-conspirator or expert
has testified before any court, grand jury or
other tribunal or body;
(G) All personnel files for the witnesses and
the existence and identity of all prosecutorial
files for the witnesses;
(H) The same records identified in A through G
with respect to each non-witness; and
(I) All other records or information which
could arguably be helpful or useful to the
defense in impeaching or otherwise detracting
from the probative force of the prosecution's
Under Brady v. Maryland,