The opinion of the court was delivered by: Judge Vanaskie
Before the Court are nine pretrial motions filed by the Defendant, William D'Elia. On May 24, 2006, D'Elia was indicted for conspiring to commit money laundering and attempting to cover-up the conspiracy. In a superseding indictment returned on October 17, 2006, a federal grand jury charged D'Elia with nine counts related to money laundering as well as other counts alleging attempts to cover-up the money laundering schemes, threats of physical force against witnesses cooperating with the government, and solicitation to kidnap and murder an individual in the Dominican Republic for money.
D'Elia has moved to suppress statements he made to cooperating witnesses after he was indicted on May 24, 2006, as violating his Sixth Amendment right to counsel or, in the alternative, to sever for trial purposes the four separate criminal schemes charged in the superseding indictment. (Dkt. Entry 54.) He has also moved to dismiss the Sixteenth Count of the superseding indictment (charging him with soliciting another person to use physical force on the individual in the Dominican Republic) as improperly ambiguous. (Dkt. Entry 70.) In addition to these two motions, D'Elia has filed seven discovery-related motions seeking disclosure of evidence or challenging the admissibility of evidence. (Dkt. Entries 56, 58, 60, 62, 64, 66, and 68.)
The Court will grant D'Elia's motion to suppress statements only in regards to incriminating statements that he made after he was indicted on May 24, 2006, that pertain to those charges contained in the original indictment. The Court will also sever charges related to D'Elia's alleged money laundering schemes from the charges related to threats of physical violence. D'Elia's motion to dismiss Count Sixteen will be denied. In regard to D'Elia's discovery-related motions, the government will be required to produce any exculpatory evidence, impeachment evidence, or evidence of other crimes, wrongs, and acts that it intends to introduce at trial. All other discovery-related motions will be denied.
On May 24, 2006, a federal grand jury returned a sealed indictment against D'Elia. (Dkt. Entry 1.) In the indictment, D'Elia was charged with conspiring to commit money laundering of the drug proceeds of a co-conspirator, John Doncses, in violation of 18 U.S.C. § 1956(h) (Count One); conspiracy to commit (a) obstruction of justice in violation of 18 U.S.C. § 1503, (b) perjury before a federal grand jury in violation of 18 U.S.C. §§ 1621, 1623, and (c) subornation of perjury in violation of 18 U.S.C. § 1622 (Count Two).*fn2
On May 31,2006, D'Elia was arrested, arraigned, and released on bond. D'Elia has been represented by counsel since he was indicted on May 24, 2006. (See Def.'s Br. Supp. Mot. Suppress (Dkt. Entry 55) at 5.) He has never waived his right to counsel.
On October 17, 2006, a grand jury returned an eighteen-count superseding indictment, organized into four "schemes."*fn3 (Superseding Indictment (Dkt. Entry 35).) The first scheme is related to the charges presented in the initial indictment. Specifically, the government charges that, from the summer of 1999 to January 12, 2005, D'Elia conspired with Doncses, Frank Pavlico, III, and Louis Pagnotti, III, to launder the marijuana-trafficking proceeds of Doncses in violation of 18 U.S.C. § 1956(h) (Count One). (Superseding Indictment (Dkt. Entry 35) at 1-15.) D'Elia is also charged with intending to cover-up the money laundering scheme (Counts Two, Three, and Four). (Id. at 1-12, 16-24.)
In the second scheme, the government charges that, from May 2, 2006 until May 31, 2006, D'Elia and Pavlico laundered cocaine-trafficking proceeds of fictional associates of Pavlico in violation of 18 U.S.C. §§ 1956(a)(3)(A)-(B) (Counts Five, Six, and Seven). (Id. at 25-32.) Pavlico was a cooperating witness for the government throughout this time. (Id. at 25.)
In the third scheme, D'Elia is charged with laundering the drug proceeds of "Cooperating Witness Two" (who was not involved in the first two schemes), and wiring money to the Dominican Republic to assist Cooperating Witness Two to smuggle illegal aliens into the United States from May 4, 2006, to July 10, 2006, in violation of 18 U.S.C. §§ 1956(a)(3)(A)-(B) and 3147 (Counts Eight, Nine, Ten, Eleven, and Twelve). (Id. at 33-46.) D'Elia continued to launder money under this scheme in violation of 18 U.S.C. §§ 2, 401(3), 1952(a)(3), and 3147, after his arrest and release on bail on May 31, 2006 (Counts Thirteen, Fourteen, and Fifteen). (Id. at 47-52.)
In the fourth scheme, the government charges that D'Elia and Cooperating Witness 2 solicited each other to kidnap and murder other persons. (Id. at 52-59.) In particular, D'Elia is charged with soliciting money from Cooperating Witness Two in exchange for D'Elia kidnaping and murdering "Sabino Cotto" in the Dominican Republic in violation of 18 U.S.C. §§ 373 and 3147 (Count Sixteen). (Id. at 52-58.) In Count Seventeen, D'Elia is charged with asking Cooperating Witness Two to kidnap and murder Pavlico and "John Doe" (another person D'Elia suspected was cooperating with the government) in violation of 18 U.S.C. §§ 2, 1512(a)(1)-(2), and 3147. (Id. at 52--59.)
D'Elia has filed nine pretrial motions. In his first motion, D'Elia seeks to suppress statements he made to cooperating witnesses after he was indicted, asserting that the statements were obtained in violation of his Sixth Amendment right to counsel. (Dkt. Entry 54.) As an alternative to exclusion of the statements, he requests severance of the different schemes for trial. He also filed two other motions challenging the government's evidence, including a motion for a pretrial determination of the sufficiency of the government's proof that D'Elia was a participant in the charged conspiracies and for a determination of what statements, if any, are admissible under each conspiracy scheme (Dkt. Entry 60), and a motion for a hearing on the accuracy, authenticity, and admissibility of audio tape recordings and the accuracy of transcripts of the audio tape recordings. (Dkt. Entry 64.)
Additionally, D'Elia filed motions to compel the government to disclose evidence under the Jencks Act, 18 U.S.C. § 3500, and Rule 26.2 of the Federal Rules of Criminal Procedures (Dkt. Entry 56); provide him with written notice of uncharged misconduct pursuant to Rules 404(b) and 609 of the Federal Rules of Evidence (Dkt. Entry 58); produce statements of non-testifying co-conspirators pursuant to Rule 16(a)(1)(A) of the Federal Rules of Criminal Procedure (Dkt. Entry 62); provide him with a written notice of hearsay statements the government intends to admit pursuant to Rule 807 of the Federal Rules of Evidence (Dkt. Entry 66); and disclose exculpatory evidence and evidence material to impeaching or bearing upon the credibility of government witnesses. (Dkt. Entry 68.) Lastly, D'Elia has moved for dismissal of Count Sixteen of the superseding indictment at improperly vague. (Dkt. Entry 70.) All the motions have been fully briefed, and are now ripe for resolution.
A. Motion to Suppress (Dkt. Entry 54)
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. In Massiah v. United States, 377 U.S. 201, 206 (1964), the Supreme Court held that deliberate elicitation of incriminating statements by a government agent after the defendant had been indicted and without the defendant's attorney being present violates the Sixth Amendment. Accordingly, the Massiah Court suppressed statements made by an indicted criminal defendant outside the presence of his attorney to a co-conspirator who was cooperating with the government. Id.
The Sixth Amendment right to counsel, however, is offense specific. McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). It only attaches to the specific charges brought through an adversary judicial criminal proceeding, such as an indictment. Id.. As a consequence, the right cannot "be invoked once for all future prosecutions," for it does not extend to police investigations of "new or additional crimes after an individual is formally charged with one crime." Id. at 175-76; see also Maine v. Moulton, 474 U.S. 159, 180 n.16 (1985) ("Incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses.") In Texas v. Cobb, 532 U.S. 162, 167-71 (2001), the Supreme Court again stressed that a defendant's Sixth Amendment right to counsel attaches only to pending charges, and does not attach to investigations of other uncharged crimes, even factually related crimes.
D'Elia seeks to suppress statements he made to cooperating witnesses after May 24, 2006, the date on which he was indicted for conspiring to launder Doncses' marijuana-trafficking proceeds. Analysis of D'Elia's claim is complicated by the fact that he does not specify which statements he seeks to suppress. Based on the parties' briefs, though, it appears that D'Elia seeks to suppress incriminating statements related to all four schemes made after the initial indictment, but before the superseding indictment was returned.
The government states that it does not plan to introduce any post-indictment statements made by D'Elia to a cooperating witness concerning the first scheme (the scheme to launder Doncses' marijuana-trafficking proceeds). (United States' Br. Opp. Mot. Suppress (Dkt. Entry 83) at 28 ("None of the statements made by D'Elia post-indictment that related to the First Scheme will be introduced at trial.") Indeed, such statements likely would run afoul of D'Elia's Sixth Amendment right to counsel.*fn4
The government contends that statements made by D'Elia in relation to the other schemes are not protected by the Sixth Amendment, as they are statements pertaining to distinct criminal schemes separate from the charges set forth in the May 24, 2006 indictment. D'Elia argues that the government's classification of its prosecution as four separate schemes is a fiction. In actuality, he argues, the second, third, and fourth schemes are simply a continuation of the conduct charged in the first indictment. Accordingly, D'Elia asserts, any incriminating statement he made after he was indicted on May 24, 2006, should be suppressed.
D'Elia's arguments are unpersuasive. It is apparent from a review of the superseding indictment that the second, third, and fourth schemes involve "new or additional crimes" when compared to the criminal conduct set forth in the May 24, 2006 indictment. In the second scheme, D'Elia is charged with conspiring with Pavlico to launder the proceeds from a fictional cocaine-trafficking racket that is separate from the first scheme (Doncses' marijuana-trafficking proceeds). According to the superseding indictment, D'Elia agreed to participate in the second scheme nearly six years after he agreed to participate in the first scheme. (See Superseding Indictment (Dkt. Entry 35) at 4, 25.) The money transfers between D'Elia and Pavlico under each scheme were kept distinct from each other. Furthermore, unlike the first scheme, Pagnotti was not involved in the second scheme. Though D'Elia and Pavlico used a similar mechanism for laundering the drug proceeds in each scheme, the schemes were separate crimes.
It is even more clear that the crimes alleged in the third and fourth schemes constitute "new or additional crimes" from the May 24, 2006 indictment. Pavlico was not involved in the third scheme, as D'Elia instead laundered money with Cooperating Witness Two (who had no involvement in the first two schemes). The third scheme, moreover, operated differently from the schemes with Pavlico, as D'Elia wired money given to him by Cooperating Witness Two to a bank in the Dominican Republic for a fee, rather than repaying Cooperating Witness Two "interest" payments. The fourth scheme involves charges based on criminal conduct ...