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U.S. v. GIARDINA

November 17, 2005.

UNITED STATES OF AMERICA,
v.
RUSSELL T. GIARDINA, Defendant.



The opinion of the court was delivered by: KIM GIBSON, District Judge

MEMORANDUM OPINION and ORDER

This matter comes before the Court on the Defendant's Pretrial Motions (Document No. 31): Motion for Discovery, Motion for a James Hearing, Motion for Government Agents and State and Local Law Enforcement Officers to Retain Rough Notes and Writings, Motion to Disclose and Exclude Uncharged Misconduct Evidence, Motion for Early Disclosure of Jencks Materials, Motion to Compel Notice by the Government of Its Intention to Use Certain Evidence, and Motion for Independent Testing of Evidence. For the reasons stated herein, the Court grants the Defendant's Motion for a James Hearing, Motion for Government Agents and State and Local Law Enforcement Officers to Retain Rough Notes and Writings and Motion for Independent Testing of Evidence and denies all other motions.

MOTION FOR DISCOVERY

  The Defendant requests discovery of various materials including all evidence subject to FED. R. CRIM. P. 16, all statements of "witnesses or participants favorable to [D]efendant," as well as all Brady and Giglio material. The Defendant cites no specific concern that the Government will not produce these materials. The Government avers that it has complied with FED. R. CRIM. P. 16 and Local Rule 16.1, has produced discovery materials to Defendant's former and current counsel a total of three times and notes that its recognizes that its obligations are continuing. The Court will deny the Motion for Discovery as the Defendant has not set forth any specific material that it believes has not been produced by the Government; without a true controversy as to a failure to produce discoverable materials, the Court finds no justification to order discovery that the Government has already produced and knows it must supplement. This motion is denied as moot.

  MOTION FOR JAMES HEARING

  The Defendant moves for a James Hearing to be conducted before trial in this matter begins arguing that the Government may wish to introduce alleged co-conspirator statements into evidence through Federal Rule of Evidence ("F.R.E.") 801(d)(2)(E). The Defendant contends that there is a question as to whether the Defendant was a member of any conspiracies as alleged in the indictment. Among the precedent the Defendant relies upon for the request for a pretrial hearing is F.R.E. 104(a) and United States v. James, 590 F.2d 575 (5th Cir. 1979) (en banc).

  The Government argues that there is no need for a pretrial hearing to determine admissibility of possible co-conspirator statements as the order of proof is within the discretion of the Court and that the Government can produce its evidence during trial as it does not believe there is a need to hold a "minitrial" in order to establish the existence of a conspiracy. Government Motion, p. 7.

  Initially, it must be noted that the admission of co-conspirator statements is governed by F.R.E. 104(a). United States v. Ammar, et al., 714 F.2d 238, 247 n. 5 (3d Cir. 1983). The proponent of the co-conspirator statement(s) must prove by a "clear preponderance of the evidence" that a conspiracy existed, the defendant and the declarant were members of the conspiracy and that the declarant made the statements "during the course and in furtherance of the conspiracy." United States v. Ammar, et al., 714 F.2d 238, 246 (3d Cir. 1983); U.S. v. Ellis, 156 F.3d 493, 496 (3d Cir. 1998); F.R.E. 801(d)(2)(E). The statements sought to be admitted under this Rule are not in and of themselves sufficient proof of "the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered" but may be used as evidence of such facts. F.R.E. 801(d)(2). U.S. v. Gambino, 728 F.Supp. 1150, 1153-1154 (E.D.Pa. 1989). The question in the case sub judice is the order of proof for these statements.

  The Court of Appeals for the Third Circuit has not endorsed a preferred method for district courts to determine the admissibility of statements under F.R.E. 801 (d)(2)(E), but has noted that such a decision as to the order of proof is at the discretion of the respective district judges. United States v. Ammar, et al., 714 F.2d 238, 246 (3d Cir. 1983). Prior to the Ammar opinion, in United States v. Continental Group, Inc., 603 F.2d 444 (3d Cir. 1979), the Court of Appeals noted that foregoing a pretrial hearing on the admissibility of a co-conspirator's statements in favor of permitting submission of such proof at a jury trial subject to "connecting up" such statements with the requisite foundational evidence necessary for their admission is to be done with caution:
We agree that the danger of prejudice to the defendant inherent in the practice of admitting coconspirator declarations, otherwise hearsay, subject to later proof of the requisite conspiracy, dictates that the practice be carefully considered and sparingly utilized by the district courts. Nonetheless, given the large amount of interrelated testimony to be considered in this case, we believe that alternative approaches may have been unduly complex and confusing to the jury or to the court. We therefore conclude that the district court's decision to admit such declarations "subject to later connection" was not inconsistent with the sound exercise of its discretion.
U.S. v. Continental Group, Inc. 603 F.2d 444, 457 (3d Cir. 1979) (emphasis added). The Court believes that conducting a pretrial hearing on the admissibility of the alleged co-conspirator statements is the best practice in the case sub judice for three reasons. First, the Court recognizes that the parties can actually benefit from being outside the strictures of the Federal Rules of Evidence in a Rule 104(a) hearing as the rule itself only binds the Court to those rules of evidence with respect to privileges and not any of the other rules of evidence. However, if the Court agreed with the Government's preference of introducing statements at trial then attempting to connect them up with later testimony and evidence, such introduction of evidence would be subject to all of the Federal Rules of Evidence, not just those concerning privileges. WEINSTEIN'S FEDERAL EVIDENCE § 801.34[6][c] (Joseph M. McLaughlin ed., 2d ed. 2005); F.R.E. 104(a).

  Second, this case does not involve a complex conspiracy with multiple defendants like that in Continental Group, where "multiple defendants and a `large amount of interrelated testimony'" were involved. Ammar at 246-247 (citing Continental Group, Inc., 603 F.2d at 457). The present case concerns only one defendant under a two count indictment and neither of the counts are for conspiracy but for two violations of 21 U.S.C. §§ 841(a)(1), (b)(1)(c) (distribution of less than 100 grams of heroin). Therefore, the Court does not foresee a pretrial hearing on this matter evolving into a mini-trial.

  Third and finally, the Court notes the potential for a mistrial in situations where the "connecting up" of a statement introduced into evidence is not made with the foundation evidence proving the existence of a conspiracy, its membership and the context of the statements introduced. While the Court does not know the extent of the Government's evidence, it assumes that the Government possesses the necessary foundational evidence for the proposed co-conspirator's statements. Although it is very unlikely that the Government will not "connect up" the foundational evidence to any co-conspirator statements being introduced, in the event the connection is not made the potential for a mistrial is great. Therefore, the Court prefers conducting a pretrial hearing in this matter in order to limit any need for declaring a mistrial should the Government not "connect up" its co-conspirator statements with the requisite foundational evidence.

  The Defendant's Motion for a James Hearing is therefore granted and will be scheduled in a separate order.

  MOTION FOR GOVERNMENT AGENTS AND STATE AND LOCAL LAW ENFORCEMENT OFFICERS TO RETAIN ROUGH NOTES AND WRITINGS

  The Defendant moves for an order of Court requiring all law enforcement agents who participated in the ...


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