United States District Court, W.D. Pennsylvania
November 17, 2005.
UNITED STATES OF AMERICA,
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
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[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
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 investigation of this
to retain and preserve all rough notes and writings
which are arguably producible to the defense pursuant
to Title 18 U.S.C. Section 3500, Rule 26.2 of the
F.R.Crim.P., or Brady v. Maryland, 373 U.S. 83
(1963); United States v. Soto, 711 F.2d 1558
(11th Cir. Fla. 1983) or which may be used by the
defense for impeachment purposes (including materials
to assist in cross-examination pursuant to Federal
Rules of Evidence 806), which notes and writings were
made part of the investigation, notwithstanding that
the contents of said notes or writing may be
incorporated in office records, reports or memoranda.
Defendant's Motion, pp. 5-6. The Government does not object to
preserving such materials and has already given such directions
to the law enforcement officers in this matter, but in referring
to Ammar, supra, argues that it is required to turn these
material over to the Court only "if a question should arise as to
whether the rough notes constitute either Brady or Jencks
material, then the notes should be submitted to the Court for any
such determination. No such question has arisen." Government's
Response, p. 8.
The law of the Third Circuit was established in the case of
United States v. Vella, 562 F.2d 275, 276 (3d Cir. 1977) wherein it was stated:
To avoid future misunderstandings, we specifically
adopt the precepts announced in United States v.
Harrison, 173 U.S. App. D.C. 260, 524 F.2d 421
(1975), as the law in this circuit, to-wit, the rough
interview notes of F.B.I. agents should be kept and
produced so that the trial court can determine
whether the notes should be made available to the
appellant under the rule of Brady v. Maryland,
373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), or
the Jencks Act.
The Court does not read Ammar in the manner the Government does
and in fact finds that the language is different from
Although in most cases a rough draft may not be a
Jencks Act "statement," we believe the same rationale
which underlay our decision in Vella directing
retention of rough notes is also applicable to
handwritten drafts of agents' reports. We therefore
hold that, hereafter, the government must retain and,
upon motion, make available to the district court
both the rough notes and the drafts of reports of its
agents to facilitate the district court's
determination whether they should be produced. This
requirement should impose no undue burden on the
United States v. Ammar, 714 F.2d 238
, 259 (3d Cir. 1983).
Clearly, the Defendant has made such a motion and now the rough
notes and writings of the law enforcement agents investigating
this matter must be produced to the Court for in camera
inspection. Should this material be found to be discoverable only
then will it be ordered to be produced to the Defendant. The
Defendant's motion is granted.
MOTION TO DISCLOSE AND EXCLUDE UNCHARGED MISCONDUCT EVIDENCE
The Defendant seeks a pretrial hearing on the admissibility of
evidence the Government intends to offer pursuant to F.R.E.
404(b) and asks that such proposed evidence be provided to the
Defendant prior to such a hearing. The Government offers that it
will produce such evidence within thirty days of the date of its
response (October 13, 2005), but argues that the admissibility of
such evidence should be determined at trial when the Court is
able to put such evidence into the context of the Government's entire case.
It has been noted by another district court in this circuit
that issues regarding the admissibility of evidence pursuant to
F.R.E. 404(b) should be determined at trial:
Recently, the United States Supreme Court set forth
the guidelines for admission of other crimes evidence
in Huddleston v. United States, 485 U.S. 681, 685,
108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988). In
Huddleston, the Court held that evidence of similar
bad acts is admissible if there is sufficient
evidence to support a jury finding that defendant
committed the similar act. Id. The Court stated
that, with this rule, protection from unfair
prejudice emanates from four sources; first, that the
other crimes' evidence must have a proper purpose;
second, that the proffered evidence must be relevant;
third, that its probative value must outweigh its
potential for unfair prejudice; and fourth, that the
court must charge the jury to consider the other
crime's evidence only for the limited purpose for
which it is admitted. Id. at 691-92,
108 S.Ct. at 1502. The court must examine all the evidence in the
case and decide whether the jury can reasonably find
the conditional fact by a preponderance of the
evidence. Id. at 690, 108 S.Ct. at 1501-02.
This court has previously held that the balancing of
the prejudicial effect of the evidence against the
probative value of the evidence of prior conduct,
prior convictions, or bad acts "is most effectively
done at trial when such evidence can be evaluated in
the factual context of the government's case and the
defense put forward." Vastola, 670 F.Supp. at 1268.
Likewise, the court finds that the evaluation under
Huddleston of the purpose and relevance of the
other crimes' evidence is better evaluated within the
context of the case. The court, therefore, will deal
with these issues as they arise and outside the
hearing of the jury. Defendants' motions for a
pretrial hearing on the admissibility of prior bad
acts under Rule 404(b), therefore, will be denied.
U.S. v. Gatto, 746 F.Supp. 432, 482 (D.N.J. 1990) rev'd on
other grounds, U.S. v. Gatto, 924 F.2d 491
(3d Cir. 1991). See
also U.S. v. Azzarelli Const. Co., 459 F.Supp. 146, 153 (D.II.
1978); United States v. Doby, 665 F. Supp. 705
1987). This Court agrees with this approach as well and will
defer decisions as to the admissibility of any of the
government's F.R.E. 404(b) evidence until the time of trial as
such evidence is offered. Assuming that the Government has
produced the F.R.E. 404(b) material on October 13, 2005, the
Defendant has already had ample time to review the F.R.E. 404(b)
material and in consideration of the fact that this matter cannot
go to trial earlier than the Court's next trial term, which begins January 9, 2005, the Defendant will have
further time to review this material. The Defendant's motion is
MOTION FOR EARLY DISCLOSURE OF JENCKS MATERIALS
The Defendant moves for early disclosure of Jencks materials by
the Government based upon their alleged necessity for purposes of
"due process of law, effective assistance of counsel and fair and
efficient conduct of trial. . . ." Defendant's Motion, p. 7. The
Government notes that under the law it need not reveal this
information until after a witness has testified, see FED. R.
CRIM. P. 16; 18 U.S.C. § 3500, but that it will produce such
material in accordance with its office policy, that is at least
one to three days prior to the testimony of a witness for which
such material exists.
The Court notes that its standard criminal pretrial order
encourages early production of Jencks material by the Government
at least three days prior to the commencement of trial, but the
law previously prevented this Court from ordering production of
Jencks material relating to any witness prior to the testimony of
that witness on direct examination. United States v. Murphy,
569 F.2d 771, 773-774 (3rd Cir. 1978).
However, the Court recognizes that the holding in Murphy has
been superseded since the addition of FED. R. CRIM. P. 12(i) in
1983 and the subsequent removal of that provision in 1993 to FED.
R. CRIM. P. 26.2(g) where it provides for the production of
Jencks material in a pretrial suppression hearing as well as in
other pretrial events. See United States v. Rosa, et al.,
891 F.2d 1074, 1077 (3d Cir. 1989). The original text of FED. R.
CRIM. P. 12(i) read: "(i) Production of Statements at Suppression
Hearing. Except as herein provided, rule 26.2 [Jencks Act] shall
apply at a hearing on a motion to suppress evidence under
subdivision (b)(3) of this rule." Id. The Rosa Court was
focused on the issue of Jencks material being used in a post-trial sentencing hearing, not a production for
general discovery purposes prior to trial or for a pretrial
suppression hearing. Still, the point noted by the Rosa Court
must be considered, but this Court does not believe it requires
production of Jencks material based on what is essentially a
general discovery request based upon considerations of trial
efficiency. Furthermore, the Court notes that a pretrial
suppression hearing is not scheduled before the Court, so no
Jencks material needs to be produced at this stage of the
proceedings under the Federal Rules of Criminal Procedure. See
FED. R. CRIM. P. 26.2 (g) (limiting production of Jencks material
prior to trial only for purposes of a detention hearing, a
preliminary hearing, and a suppression hearing). Therefore,
because the Defendant's request for Jencks material does not fall
within the list of pretrial events outlined in FED. R. CRIM. P.
26.2(g) for which Jencks material must be produced, the
Defendant's motion is denied.
MOTION TO COMPEL NOTICE BY THE GOVERNMENT OF ITS INTENTION TO
USE CERTAIN EVIDENCE
The Defendant moves the Court for an order compelling the
government to produce any co-conspirator statements it intends to
introduce at trial pursuant to F.R.E. 801(d)(2)(E) as well as any
co-conspirator statements that were not made "during the course
of and in furtherance of the conspiracy alleged." Defendant's
Motion, p. 8.
In regard to the statements admissible under F.R.E.
801(d)(2)(E), the Court trusts that if such statements exist,
they will be produced by the Government if they have not already.
The Defendant makes another general request for information
without support that the Government is withholding co-conspirator
As to co-conspirator statements not qualifying under F.R.E.
801(d)(2)(E), the Court agrees with the Defendant that admission of co-conspirator statements that
are not made in the course of or in furtherance of the conspiracy
would be inadmissible, primarily because they would be hearsay
statements which could only be admitted if they qualified under
an exception to the hearsay rule. The Defendant suggests there
would be a Bruton problem with these statements and requests
severance or redaction of the statements, but this is not
necessary as the Defendant is the only defendant in this matter.
Additionally, the Court does not currently see a Bruton or
Crawford problem as there has been no suggestion that the
declarants of the alleged co-conspirator statements cannot
testify at trial.
Finally, the Defendant requests notice of any F.R.E. 404(b)
statements the Government intends to introduce. The Court has
already addressed this issue above and will not do so again. The
Government intends to produce such statements by October 13, 2005
and their admissibility will be determined at trial and not at a
preliminary hearing pursuant to F.R.E. 104.
The Defendant's motion is denied.
MOTION FOR INDEPENDENT TESTING OF EVIDENCE
Defendant moves for the independent testing of the substance
found to be heroin by a crime lab and that is alleged by the
government to have been delivered by the Defendant on the dates
of March 6 and March 20, 2003. The Defendant seeks the testing in
order to "confirm the presence of heroin therein." Defendant's
Motion, p. 10. The Government opposes such motion. It argues that
"a defendant may inspect tangible objects if they are material to
the preparation of the defense and if the government intends to
use them in its case-in-chief." Government's Response, p. 17. The
government also argues that in order for the Court to grant the
Defendant's motion "under Rule 16, the defendant is required to
show that the items sought are material to the preparation of his
defense and that the request is reasonable United States v. Mesarosh, 13 FRD 180, 183 (W.D.Pa. 1952)."
Government's Response, p. 17. The Government also notes that the
heroin from the alleged March 6, 2003 delivery was
"inadvertently" destroyed on October 22, 2004 and that defense
counsel was informed of this fact on August 4, 2005. As a result,
the Government argues that the request to test this part of the
evidence is "moot" because of its destruction.*fn1
The Court notes that the applicable rule for this motion is
Federal Rule of Criminal Procedure 16 which reads in pertinent
(E) Documents and Objects. Upon a defendant's
request, the government must permit the defendant to
inspect and to copy or photograph books, papers,
documents, data, photographs, tangible objects,
buildings or places, or copies or portions of any of
these items, if the item is within the government's
possession, custody, or control and:
(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its
case-in-chief at trial; or
(iii) the item was obtained from or belongs to the
The clear reading of the rule demonstrates that a defendant's
request for inspection must be permitted if any of the three
circumstances exist, and it is not necessary to establish all
three or even two of the three as suggested by the Government.
Furthermore, the Mesarosh case, as cited by the Government, is
no longer applicable to motions for inspection under FED. R.
CRIM. P. 16. The 1974 amendment of FED. R. CRIM. P. 16 obviated
the need to demonstrate materiality and reasonableness and
required disclosure if any of the three conditions existed: The old rule requires a "showing of materiality to
the preparation of his defense and that the request
is reasonable." The new rule requires disclosure if
any one of three situations exists: (a) the defendant
shows that disclosure of the document or tangible
object is material to the defense, (b) the government
intends to use the document or tangible object in its
presentation of its case in chief, or (c) the
document or tangible object was obtained from or
belongs to the defendant.
FED. R. CRIM. P. 16 advisory committee's note.
It appears that the Defendant is not attempting to seek
disclosure based upon a materiality argument but based upon the
fact that the Government may use the actual heroin as evidence at
the Defendant's trial: "Defendant seeks leave of Court to test
each quantity of drugs which the Government intends to use as
evidence against him by an independent testing laboratory to
confirm the presence of heroin therein." Defendant's Motion, p.
10. The Court finds difficulty with this basis because it wonders
how a defendant is to know whether a piece of evidence is going
to be offered by the Government at trial. However, guidance is
provided by the case of U.S. v. Liquid Sugars, Inc.,
158 F.R.D. 466 (E.D.Ca. 1994) Although Liquid Sugars concerned a question
of whether the defendant had met the materiality prong for the
production of documents and tangible objects under Rule 16, its
observation of the need for production of foundational evidence
for reports to be produced at trial is helpful in our analysis of
the case-in-chief prong of Rule 16:
Where scientific methodology or data is involved in
proving a defendant's guilt, it is unreasonable to
expect defense counsel to be able to delve into
technical aspects of that methodology/data on the
spot at trial. As a practical matter, this type of
information is often very difficult to prepare for in
advance, despite the use of experts, as the precise
methodology utilized by government experts will not
often be known without advance discovery of the
underlying methodology/data. Further, the government
will be required to establish a foundation for the
test results when it first puts its expert on the
stand at trial. That foundation is the information
which defendants now seek. Since the foundation is
an essential element to the government's
case-in-chief, it necessarily becomes "helpful to the
defense." Moreover, for issues in which scientific
data will be utilized, there are no safety considerations which would be compromised by
this rule. By having access to the requested
information, the defense will not unfairly jeopardize
the government's case it will merely be able to
properly challenge that case.
U.S. v. Liquid Sugars, Inc., 158 F.R.D. 466, 471-472 (E.D.Ca.
1994) (footnote omitted) (emphasis added). See also U.S. v.
Shoher, 555 F.Supp. 346, 352 (S.D.N.Y. 1983). Even though these
cases concern the question of materiality, the concept of
evidence to be used in the case-in-chief and the materiality
prongs of Rule 16 are somewhat intertwined. Indeed it has been
recognized that "[e]ven before the 1975 amendments, it was held
that the fact that the government intended to use the evidence at
trial was sufficient proof of its materiality, but this was made
explicit by the changes in 1975." 2 CHARLES ALAN WRIGHT, FEDERAL
PRACTICE AND PROCEDURE, § 254 (3d 2000) (footnotes omitted).
The Court is without knowledge as to whether the Government
intends to offer as evidence the actual heroin at issue, but
absent a stipulation by Defendant, this is very likely.
Considering that the jury's mere visual observation of the
substance is not sufficient for it to conclusively find that it
is in fact heroin beyond a reasonable doubt, it is most likely
that both the actual heroin and the crime lab report will be
introduced as evidence to prove that the Defendant delivered a
substance which is heroin. Under either scenario, the actual
heroin is central to the Government's burden to prove that the
substance the Defendant was alleged to have delivered was heroin.
Without this proof in its case-in-chief, the Government would not
survive a Federal Rule of Criminal Procedure 29 Motion for a
Judgment of Acquittal.*fn2 Therefore, proof that the
Defendant did in fact deliver a substance found to be heroin is clearly required for the Government's case-in-chief and, in turn,
production of the actual substance for non-destructive
independent testing by the Defendant must be permitted under Rule
16. This is necessary because the production of the actual
substance, and more specifically the testing thereof, is the
foundation for the Government's conclusion that a crime was
committed and subsequent prosecution of the Defendant for that
crime. The substance alleged to be heroin is a critical element
of the Government's case and test results proving its identity as
a Schedule I substance will be a necessary piece of evidence in
the government's case-in-chief. Such crime lab tests and results
would not exist without the alleged heroin which was tested.
Therefore, the remaining alleged heroin is evidence necessary to
the Government's case-in-chief and is required to be produced for
non-destructive, independent testing by the Defendant. As for the
alleged heroin that was inadvertently destroyed, any request to
test this substance is moot by reason of its destruction. The
Defendant's Motion is granted in part and is moot in part.
An appropriate Order follows. AND NOW, this 17th day of November, 2005, in accordance
with the foregoing Memorandum Opinion, IT IS HEREBY ORDERED THAT
the Defendant's Pretrial Motions (Document No. 31) are GRANTED IN
PART AND DENIED IN PART: the Defendant's Motions for a James
Hearing, for Government Agents and State and Local Law
Enforcement Officers to Retain Rough Notes and Writings, and for
Independent Testing of Evidence are GRANTED and the Defendant's
Motions for Discovery, to Disclose and Exclude Uncharged
Misconduct Evidence, for Early Disclosure of Jencks Materials,
and to Compel Notice by the Government of Its Intention to Use
Certain Evidence are DENIED.
IT IS FURTHER ORDERED THAT the Government produce to the Court
all rough notes and memoranda produced by any law enforcement
officer involved in this case for in camera review within two
weeks of this order. IT IS FURTHER ORDERED THAT the Government produce to the
Defendant or his agent for non-destructive testing the alleged
heroin that remains within its possession that is the evidentiary
basis of the indictment in this matter within two weeks of this
order and any request to test alleged heroin previously destroyed
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