The opinion of the court was delivered by: VANASKIE
The defendants have moved, both collectively and individually, to compel discovery of certain evidence in the government's possession, such as witness statements that may contain exculpatory information or which may be used to cross-examine government witnesses at time of trial. The government, contending that it has properly met its discovery obligations at this time, states that it will produce the documents defendants seek one week prior to trial. Thus, the government is not contending that it lacks an obligation to turn over certain material; instead, the government asserts that it is not required to produce that material now.
In regard to the request for exculpatory material subject to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), the government will be ordered to produce any exculpatory evidence to the defendants within twenty (20) days from the date of this Memorandum and Order. In terms of impeachment material under Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972), and Jencks Act material, the government is under no obligation to disclose such material prior to trial and its suggested disclosure one week prior to trial is sufficient and encouraged.
On October 7, 1997, a federal grand jury in this District returned a 140-count indictment against six defendants, Renato P. Mariani, Michael L. Serafini, Leo R. Del Serra, Alan W. Stephens, Robert Giglio, and Frank Serafini. The first 134 counts essentially concern alleged illegal campaign contributions under the Federal Election Campaign Act, 2 U.S.C. §§ 431, et seq. Counts 135 through 138 concern obstruction of justice charges leveled against defendants Michael L. Serafini and Leo R. Del Serra. Count 139 charges defendant Robert Giglio with having presented perjured testimony to the grand jury. This is the only count in which Giglio is named as a defendant. Count 140 levels the same charge against defendant Frank Serafini, who is a Pennsylvania State Representative, having been elected to represent the 114th Legislative District in Pennsylvania. Defendant Frank Serafini is named as a defendant in the indictment only in Count 140.
The alleged conspiracy involved Empire Sanitary Landfill. Because Empire was barred from making corporate contributions to individual political campaigns, Empire allegedly solicited its employees to make contributions in their personal capacity and Empire would then reimburse its employees. Thus, Empire used its employees and other close associates as "conduits" for its contributions. These "conduits" eventually were granted immunity and testified before the grand jury.
In connection with the discovery in this manner, defendants have requested that the government be ordered to produce the following material:
(1) The identity of unindicted co-conspirators;
(2) Exculpatory material under Brady and Giglio ;
(3) Inconsistent or contradictory statements made by the conduit witnesses to (a) IRS agents during interviews, and (b) the grand jury;
(4) Exculpatory "rough notes" taken by IRS agents during the initial investigation of this matter; and
(5) Jencks Act statements prior to the trial.
(Transcript of Oral Argument (Dkt. Entry 145) at 69.)
Defendant Frank Serafini also filed his own discovery motion, seeking:
(1) Statements of any and all witnesses, in particular Tom Harrison, who have provided exculpatory and/or inconsistent statements to the FBI and/or the grand jury;
(2) Statements of the SADCO employee who dealt with defendant Frank Serafini while repairing defendant Michael Serafini's car during the time in question;
(3) Statements of defendant Frank Serafini's father, sister, niece and nephew;
(4) Any and all statements defendant Frank Serafini provided to the FBI;
(5) Information concerning the handling of the grand jury, specifically (1) the dates of specific grand jury subpoenas duces tecum and the receipt date of the material requested; (2) the dates of impaneling the grand juries; and (3) the instructions to the grand jury by the United States concerning the perjury charge; and
(6) Access to the original tape used by the stenographer to record the testimony of Frank Serafini before the grand jury.
During the oral argument, the parties agreed to meet to review the original copy of the audio tape of defendant Frank Serafini's grand jury testimony. Therefore, defendant Frank Serafini's request for the audio tape was granted. (Dkt. Entry 132.) Further, this Court reviewed in camera the relevant FBI file containing statements of defendant Frank Serafini and concluded that such statements had no relevance to this proceeding. (Dkt. Entry 108.) Consequently, only items 1 through 3 and 5 are at issue here.
1. Identity of Unindicted Co-conspirators
The defendants have failed to cite any authority for their assertion that the identity of unindicted co-conspirators is discoverable under Rule 16. Rather, the defendants have encouraged this Court to construe their request as a motion for a bill of particulars under Rule 7(f) of the Federal Rules of Criminal Procedure.
"The purpose of the bill of particulars is to inform the defendant of the nature of the charges brought against him [so that he may] adequately prepare his defense, to avoid surprise during the trial and to protect him against a second prosecution for an inadequately described offense." United States v. Addonizio, 451 F.2d 49, 63-64 (3d Cir. 1971) (quoting United States v. Tucker, 262 F. Supp. 305, 308 (S.D.N.Y. 1966)), cert. denied, 405 U.S. 936, 30 L. Ed. 2d 812, 92 S. Ct. 949 (1972); see also United States v. Eufrasio, 935 F.2d 553, 575 (3d Cir.), cert. denied, 502 U.S. 925, 116 L. Ed. 2d 280, 112 S. Ct. 340 (1991); United States v. Rosa, 891 F.2d 1063, 1066 (3d Cir. 1989); United States v. Adams, 759 F.2d 1099, 1113 (3d Cir.), cert. denied, 474 U.S. 971, 88 L. Ed. 2d 321, 106 S. Ct. 336 (1985); United States v. McDade, 827 F. Supp. 1153, 1187 (E.D. Pa. 1993), aff'd in part, appeal dismissed in part, 28 F.3d 283 (3d Cir. 1994), cert. denied, 514 U.S. 1003, 131 L. Ed. 2d 194, 115 S. Ct. 1312 (1995); United States v. Joseph, 510 F. Supp. 1001, 1005 (E.D. Pa. 1981). In determining whether to grant a motion for a bill of particulars, a ...