The opinion of the court was delivered by: Stengel, J.
Presently before the Court are a number of Defendant, Merrell Hobbs', Pretrial Motions. For the following reasons, Defendant's Motions will be denied.
On September 22, 2010 and September 7, 2011, a federal grand jury returned a seventy-three count indictment and an eighty-nine count superseding indictment, respectively, charging Defendant, Merrell Hobbs, along with nineteen (19) other Defendants with various crimes occurring on or about October 2001 through approximately October 6, 2010. These criminal acts were committed in and around the Bartram Village Housing Development (BVHD) in Southwest Philadelphia by a criminal enterprise known to law enforcement as the "Harlem Boys." Throughout the course of the investigation, police and federal authorities obtained and executed numerous search and seizure warrants, which led to the recovery of drugs, drug paraphernalia, drug proceeds, firearms, ammunition, fired cartridge casings, documents, photographs, letters and other mail, and other items.
Members of the enterprise committed, attempted, and threatened to commit acts of violence, including murder, assault, and robbery, to protect and expand the enterprise's criminal operations. The members of the enterprise had varying roles. The Government alleges that Defendant Hobbs was a supplier and distributor of illegal narcotics and a gunman for the enterprise, who committed acts of violence with other members of the enterprise, such as assaults and other crimes.
Hobbs is charged with ten (10) counts in the superseding indictment. These counts include charges of conspiracy to participate in a racketeering enterprise under 18 U.S.C. § 1962(d); conspiracy to distribute under 21 U.S.C. § 846; assault with a deadly weapon in aid of racketeering under 18 U.S.C. § 1959(a)(3); carrying and use of a firearm during a violent crime under 18 U.S.C. § 924(c); distribution of cocaine base ("crack") under 21 U.S.C. § 841(a)(1); and possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c). Hobbs has filed a number pre-trial motions, which have been briefed by the parties and argued in a pre-trial motions hearing on May 15-16, 2012, where evidence and testimony were provided by the Government and counsel. These motions include motions for: discovery of 404(b) evidence (Doc. No. 171)*fn1 , discovery of exculpatory evidence (Doc. No. 172)*fn2 , discovery of confidential informants (Doc. No. 173), to suppress out of court identifications (Doc. No. 174*fn3 & 175), to strike surplusage from the indictment (Doc. No. 176), for bill of particulars (Doc. No. 177)*fn4 , for discovery of agent notes (Doc. No. 178)*fn5 , to sever (Doc. No. 179), to suppress statement (Doc. No. 189), and to dismiss (Doc. No. 225).*fn6
II.Motion to Discover Identity of Confidential Informants
Hobbs seeks the disclosure of the confidential informants utilized by the Government during its investigation into his criminal activities. Effective law enforcement and the protection of the public interest require that the Government be permitted, absent exigent circumstances, to withhold the identity of informants. See Rovario v. United States, 353 U.S. 53 (1957). Mere speculation that disclosure would be helpful is not sufficient to override the Government's privilege. United States v. Brenneman, 455 F.2d 809, 811 (3d Cir.), cert. denied, 408 U.S. 923 (1972). Defendant Hobbs claims that the identities of the confidential informants "would allow defendant, the Court, and the jury to learn of the informant's motives for providing the information, and to learn precisely what information he provided." He alleges that he needs this information to determine whether the CI was paid, or whether the CI has a prior criminal record.
Hobbs has not shown that the informer's identity "is critical to his case," Branzburg v. Hayes, 408 U.S. 665, 698 (1972). Hobbs requests information, which may be helpful to impeach a witness, but there is no indication that any confidential informants will be called to testify.*fn7 Further, even if Hobbs had articulated specific reasons that disclosure was critical and relevant to helping him prove his case, the Government's privilege to protect the identity of its confidential informants is very high, especially in a case with substantial counts involving violent conduct. For these reasons, the Defendant's motion is denied.
III.Motion to Suppress Out of Court Identification
On May 15, 2007, A.G., who testified at the pretrial motions hearing, was waiting for the trolley outside the entrance to BVHD, to go pick up his girlfriend from work. At that time, he was approached by three males, who physically assaulted him, coming from behind and hitting him in the eye. He was also kicked and punched, but managed to get up from the ground and run away.
On January 11, 2008, A.G. went to the Chinese take-out store across the street from BVHD. As he approached the store, he observed a group of approximately eight young men. He testified he saw both Roane and Hobbs in the group, and heard one of them say, "There goes that old head, the one that we fucked up out there," referring to the May 15, 2007 incident wherein Hobbs, Roane and Parker assaulted him. A.G. testified that he heard one of the Defendants say something like "we should get him again." A.G. then heard one of the other men present say, "just wait." A.G. testified that he went inside the Chinese store, placed his order and received his food, when he tried to leave Roane stated, "what the fuck old head," and hit A.G. across the face with a gun, causing him to bleed profusely and injuring his nose and face.
On April 23, 2008, while attending Roane's preliminary hearing for the assault that occurred on January 11, 2008, A.G. observed Merrell Hobbs inside the courtroom and recognized him as, the second male who, along with Omar Roane, assaulted him.
A.G. reported this to the Assistant District Attorney in the courtroom as well as to police who were also present. Vincent Parker testified that A.G. identified the second assailant to him. Hobbs was subsequently ...