The opinion of the court was delivered by: GUSTAVE DIAMOND, Senior District Judge
MEMORANDUM AND ORDER OF COURT
Presently before the court are numerous pro se
motions*fn1 filed by defendants Ronell Smith and Maurice
Watkins in the above-referenced case. Specifically, Smith has
filed a Motion to Dismiss Indictment (Document No. 75), a Motion
to Reveal the Identity of Confidential Informants (Document No.
77) and a Motion to Produce Evidence under Fed.R.Crim.P.
404(b) and 609. (Document No. 78). Watkins also has filed a
Motion to Dismiss Indictment (Document No. 76) mirroring that
filed by Smith. The government has filed an omnibus response to
the motions. (Document No. 81).
On December 7, 2004, a grand jury returned a one-count
indictment charging Smith and Watkins, along with co-defendant
Eric Deshawn Irvin, with conspiracy to possess with intent to
distribute one kilogram or more of heroin from "in or around 2001
until in or around November 2004", in violation of
21 U.S.C. § 846.
The court first will address Smith and Watkins' identical motions to dismiss the indictment because of "variance between
indictment and proof and duplicity and vagueness". The crux of
defendants' motions is that the government improperly has charged
a single conspiracy in a single count of the indictment when the
evidence may establish, at best, multiple conspiracies. Both
defendants allege that they could not have been a part of a
single conspiracy covering the period from 2001 until November
2004 because they both were incarcerated for a significant
portion of that time period, Smith from October 1996 until
January 20, 2004, and Watkins from December 27, 2000, until
January 6, 2003.
Drug conspiracies involving numerous suppliers and distributors
operating under the aegis of a common core group can be treated
as a single conspiracy, and the government need not prove that
each defendant knew all of the details, goals or other
participants. United States v. Padilla, 982 F.2d 110, 114 (3d
Cir. 1992). Rather, the government must show that a particular
defendant charging variance knew that he was part of a larger
drug operation. United States v. Quintero, 38 F.3d 1317, 1337
(3d Cir. 1994).
Moreover, a single conspiracy is not transformed into a series
of unrelated, multiple conspiracies merely through changing its
membership. United States v. Kelly, 892 F.2d 255, 259 (3d Cir.
1989). Instead, the government may establish the existence of a
single conspiracy which attracts different members at different
times. United States v. Simmons, 679 F.2d 1042, 1050 (3d Cir.
1982). To determine whether a series of events constitutes a single
conspiracy or separate, unrelated conspiracies, a three-step
inquiry is required: (1) determining whether there was a common
goal among conspirators; (2) examining the nature of the scheme
and determining whether the agreement sought to bring about a
continuous result which could not be sustained without the
continued cooperation of the conspirators; and, (3) examining the
extent to which participants overlapped in various dealings.
United States v. Russell, 134 F.3d 171, 182 (3d Cir. 1998).
Here, defendants have not yet gone to trial so their challenge
to the indictment on the grounds of a variance between the facts
alleged in the indictment and the proof clearly is premature. The
government indicates that through wiretap evidence, witness
testimony and physical evidence, it will be able to satisfy its
burden of proof beyond a reasonable doubt that Irvin, Smith and
Watkins were involved in a single conspiracy as alleged in the
indictment. The government is entitled to proceed to trial in an
attempt to prove the charge. Defendants' motions to dismiss
therefore will be denied without prejudice at this time. If the
proof at trial varies from the facts as alleged in the
indictment, the court can take up the matter again at that time.
Smith also has filed a motion to reveal the identity of a
confidential informant. The motion indicates that "upon
information and belief, the government has relied upon a
confidential informants [sic] in this case" and asserts that identification and investigation of the alleged informant is
essential to his defense.
In Loviaro v. United States, 353 U.S. 53, 59 (1957), the
Supreme Court recognized "the government's privilege to withhold
from disclosure the identity of persons who furnish information
of violations of law to officers charged with enforcement of that
law." This privilege is limited by fundamental requirements of
fairness to situations "[w]here the disclosure of an informer's
identity, or of the contents of his communication, is relevant
and helpful to the defense of the accused, or is essential to the
fair determination of a cause" and only in those situations the
privilege "must give way." Id. at 60-61.
In determining whether the identity of an informant must be
disclosed, courts must balance the competing interests in light
of the particular circumstances of the case taking into
consideration the crime charged, the possible defenses, the
possible significance of the informant testimony and other
relevant factors. United States v. Jiles, 658 F.2d 194, 196 (3d
Cir. 1981). The defendant bears the burden of demonstrating the
need for disclosure. Id. at 197. "In order to override the
government's privilege of nondisclosure, defendants must
establish beyond mere speculation that the informant's testimony
will be material to the determination of the case." Id. at 197.
Here, defendant Smith has asserted nothing beyond mere
speculation that any confidential informant's testimony will be
material to the determination of the case. Accordingly, his motion will be denied as he has provided nothing to override the
government's privilege of nondisclosure of any alleged
Finally, defendant Smith has filed a motion to produce evidence
which the government intends to use at trial under F.R.E. 404 (b)
and 609. In response, the government has indicated that it
intends to offer under Rule 609 any and all qualifying
convictions of all three defendants should they choose to
testify. The government also has indicated that it is presently
unaware of any evidence which would fall within the parameters of
Rule 404 (b),*fn2 but acknowledges its responsibility to
disclose such evidence under that rule, and will do so promptly
if it becomes aware of any such evidence. Accordingly,
defendant's motion will be granted, and the government is
instructed to disclose any 404 (b) evidence of which it
subsequently becomes aware promptly, and, in any event, no later
than one week prior to trial.
AND NOW, this 13th day of December, 2005, the court
having considered the pro se motions filed by defendants
Ronell Smith and Maurice Watkins in the above-referenced case and the government's
response thereto, IT IS ORDERED that the defendants' motions to
dismiss (Documents ...