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