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
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.
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 ...