The opinion of the court was delivered by: AMBROSE
Pending before the Court are several pre-trial motions filed by the Defendants. The first of these motions is Defendants' Motion for Additional Discovery in the Nature of a Request for Government Survey of Non-Institution, Reductions, and/or Dismissals (Docket # : 34). In this Motion, Defendants request that the Court order the United States Attorney's office to disclose instances in which various law enforcement officials sought or obtained favorable treatment from a state or local agency with regard to summary offenses, traffic citations or other offenses. According to Defendants' argument, such information would support their position that the federal government not only acquiesced in, but fostered and encouraged the actions described in the indictment. Defendants further allege that discovery of this information is necessary for them to raise the possible defenses of estoppel and due process violations.
In support of this request, Defendants cite cases wherein the defendants' reliance upon government actions was raised as a defense to alleged criminal activity. After careful consideration of this argument and those cases, I find that there is no basis for granting Defendants' request. The equitable estoppel argument, and cases cited in support, are based on claims by Defendants that they relied on acts and representations made by federal law enforcement officials that the overt acts set forth in the indictment were legal.
In U.S. v. Clegg, 846 F.2d 1221 (9th Cir. 1988), defendant was charged with exporting firearms in violation of two federal statutes. Defendant sought discovery of certain confidential information of his alleged activities which was in the possession of the government. When the government refused to hand over the information, claiming that the information sought was not material to any valid defense, the district court ruled that the classified information was material and discoverable. Essentially, the classified information revealed that a Lieutenant Colonel of the U.S. Army had solicited defendant to smuggle weapons to Afghan rebels resisting Soviet occupation of their country. The information also verified that the Lt. Colonel had offered to put the defendant in contact with the rebels; helped defendant plan a secret arms shipment; and supplied defendant with arms for resale to the rebels. The information further disclosed that an Army Colonel knew of defendant's activities and sold him ammunition knowing that it would be sold to the rebels. Finally, there was information that other government officials knew of defendant's activities and assisted him in shipping arms.
Also, in United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 93 S. Ct. 1804, 36 L. Ed. 2d 567 (1973), defendant was charged with discharging waste into a waterway without a permit during August 1970. Defendant intended to defend on the basis that the Army Corps of Engineers had no formal program for issuing permits until December 1970, thereby affirmatively misleading defendant into believing that a permit was not required. The Supreme Court ultimately concluded that defendant should have been permitted to present evidence to establish this estoppel defense.
These cases and the context of when an estoppel defense is relevant present factual situations distinguishable from the instant case. In the first instance, the above-referenced cases and those cited by Defendants contain factual situations wherein the defendants raised the defense as an estoppel to the crimes charged in the indictments. Here, there is no allegation that any act or representation of any law enforcement official or government agent was relied on by the Defendants to the extent that Defendants believed a conspiracy to commit mail fraud or to deprive individuals of their civil rights was a legal act. Secondly, the Defendants seek to discover all requests and receipts of non-institution, reductions and/or dismissals sought by federal law enforcement officers from the District Attorney's office, any district justice, or any judge of Allegheny County or any local, city, county or state law enforcement agency for any person. Further, Defendants seek to discover the extent to which parking tickets received by federal law enforcement officials have been reduced, discharged, dismissed or otherwise favorably disposed of by a local government agency. However, Defendants fail to explain how such information is relevant to an estoppel defense. Defendants have understandably not contended that they relied on the actions of any government agent with respect to favorable dispositions of summary offenses in concluding that the conspiracies charged were legal acts.
Although Defendants also rely on Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) in support of this request, the material sought clearly is not exculpatory to Defendants and Brady does not apply.
The Defendants have also filed a Motion to Dismiss Count II of the Indictment (Docket # : 36). Count II essentially alleges a conspiracy to deprive certain statutory appeal litigants of their civil rights. Defendants argue that since the Government's allegations are that Defendants attempted to fix cases, rather than that Defendants actually fixed cases, such allegations do not encompass a clearly established constitutional right. Defendants formulate the issue by asking the Court whether due process requires that there be no ex parte communications between a judge and his law clerks and/or deputies concerning cases before the court.
Defendants' argument, however, misses the point of a criminal charge alleging a conspiracy. As the Government notes on page 12 of its Response, "it is the corrupt motive which distinguishes Defendants' activities from the judge - law clerk example...." What the Government has alleged in the Indictment is not simply that the judge and/or his clerks and deputies had ex parte communications about cases, but rather that the three Defendants by doing so conspired to deprive certain statutory appeal litigants of their right to a fair and impartial tribunal.
Defendant's next motion is a Motion to Strike or Limit Overt Acts Charged in Counts I and II (Docket # : 38), pursuant to discretion vested in district courts under Rules 403 and 611 (a). The Defendants argue that to allow the Government to present evidence on four hundred seventy-two (472) alleged overt acts would be voluminous, cumulative and would result in undue delay and a waste of judicial resources. The Government has responded by stating that its evidence will not be cumulative, each overt act relating to a separate act by one or more of the Defendants, and that the manner of presentation of that evidence will be accomplished without undue delay. At this time it appears that the Defendants' position is not well taken. Clearly, the four hundred seventy-two (472) overt acts involve four hundred seventy-two (472) separate incidents, evidence on any of which it appears premature to exclude at this time. Furthermore, based on facts alleged in the Indictment, it does not appear that a pre-trial in limine hearing is necessary to determine whether overt acts alleged should be stricken or limited.
Defendants next move, pursuant to Rule 12(d)(2), to require the Government to give Defendants Notice of its intention to use evidence in its case in chief to which Defendants are entitled under Rule 16. Defendants want to know which of the four hundred seventy-two (472) alleged overt acts the Government intends to prove; which tapes relate to the respective four hundred seventy-two (472) acts; which tape recorded conversations the Government will introduce; and what documents, records and transcripts the Government intends to introduce into evidence.
The Government has represented that it has already or will soon be complying with all of Defendant's requests and that, therefore, the Motion should be denied as moot. However, since the Government has represented its compliance with Defendants' demands and since such demands appear to be reasonable and necessary, Defendants' Motion for Notice of Intention to Use Evidence (Docket # : 45) will be granted.
Defendants' next move to require the Government to disclose its intention to use similar and related act evidence. The Government responded by stating that the only evidence it intends to introduce is evidence pertaining to Counts III through XII. Since those counts have now been severed from the trial, it appears reasonable to assume that the Government will not be introducing this evidence. In any event, the Defendants' Motion for Notice of Government's Intention to Use Similar and Related Act Evidence (Docket # : 44) should be granted and notice given to Defendants in advance of trial.
Defendants next move to compel disclosure of all exculpatory evidence (Docket # : 48) under Brady v. State of Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). The Government concedes that such evidence includes impeachment evidence and evidence of plea agreements or other promises. From their briefs, it does not appear that Defendants and the Government disagree as to what must be disclosed; however, the Government, but not the Defendants, present an argument as to when such evidence must be disclosed. The Government suggests that it be permitted to disclose the impeachment type Brady evidence at the same time it discloses Jencks material and that it will make such material available in sufficient time to avoid undue delays in the trial. While Defendants' Motion for disclosure of Brady material will be granted, it is the Court's ...