United States District Court, Western District of Pennsylvania
NORA BARRY FISCHER JUDGE
Presently before the Court are two remaining pretrial motions filed by Defendant Peter Tat ("Tat") which are contested, in whole or in part, by the Government and were not addressed by the Court's Order of March 25, 2014 denying ten additional pretrial motions brought by Tat based on representations of the parties at the Court's Motion Hearing that such matters were either resolved and/or moot by the Government's disclosures. (Docket Nos. 538; 715; 827). To this end, Tat moves to dismiss the Indictment based on an asserted lack of specificity and further asserts that the charge is flawed because marijuana allegedly no longer meets the criteria for a Schedule I controlled substance under 21 U.S.C. § 812(c)(10). (Docket No. 538). Tat also requests that the Court order the Government to make a pretrial designation of the wiretap recordings it plans to introduce at trial and to provide him with transcripts of same it plans to seek admission into evidence at least sixty (60) days in advance of trial. (Docket No. 715). The Government opposes the Motion to Dismiss and, with respect to the Motion for Disclosure, states that it will produce the official transcripts of the Title III recordings it plans to introduce during its case-in-chief as soon as possible and at least ten days prior to trial. (Docket No. 788).
For the following reasons, Tat's Motion to Dismiss  is DENIED and his Motion for Pretrial Designation of All Telephone Calls that the Government Intends to Use at Trial  is GRANTED.
II. RELEVANT BACKGROUND
Tat is among twenty defendants who were charged by a grand jury in a single indictment filed on April 3, 2012, with one count of conspiracy to distribute 1, 000 kilograms or more of marijuana, in violation of 21 U.S.C. § 846. (Docket No. 1). Specifically, the Indictment states that the grand jury charges:
From in and around October 2010, and continuing thereafter to in and around March 2012, in the Western District of Pennsylvania and elsewhere, the defendants, JENNIFER CHAU CHIEU, HAHN TRAN a/k/a Henry, TOM ICH CHIEU, NGOC PHU DINH a/k/a Phu a/k/a Crazy Phu, PHILONG HAU CHUONG a/k/a Phi, a/k/a The Old Man, TORON BROOKS-CHAPMAN, CAQUAINE MCGRIFF a/k/a Christy, MICHAEL A. FAZIO, STANLEY VAN BACH a/k/a Ah Ping, JOHN W. BALISTREIRI, JOSEPH PARKER, CHRISTOPHER MCNUTT, DONG VAN TRAN, QUYHN TRAN, a/k/a Nhu, KIET QUOC SON, POI TRAN a/k/a Ah Poi, PETER TAT a/k/a Cuong, a/k/a Keung, RICHARD TRAN, TUAN LNU a/k/a Fat Boy, and JENNY KIU SAY TROUNG, did knowingly, intentionally and unlawfully conspire with one another and with persons both known and unknown to the grand jury, to distribute and possess with intent to distribute 1000 kilograms or more of a mixture and substance containing a detectable amount of marijuana, a Schedule I controlled substance, contrary to the provisions of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A)(vii),
In violation of Title 21, United States Code, Section 846.
(Docket No. 1). The Indictment also contains forfeiture allegations which are not at issue in this Memorandum Order. (Id.). At this time, seventeen of the codefendants have either entered guilty pleas and/or have requested that a change of plea hearing be scheduled. Of the remaining codefendants, Defendant Philong Hau Chuong's case awaits a trial listing and the final defendant, Tuan Lnu, has avoided apprehension by law enforcement and has yet to appear in this Court.
In brief summary, the Government alleges that Tat was a member of a multi-state marijuana conspiracy which was investigated via authorized Title III wiretap interceptions, among other investigative techniques. (Docket No. 788). The parties agree that the intercepted wire transmissions include "hundreds of hours" of intercepted conversations by individuals speaking at least four separate languages, including Vietnamese and three separate Chinese dialects. (Docket Nos. 715; 788 at 11-12). They likewise do not dispute that the Government provided Tat with a substantial amount of discovery material during the pendency of this case, including all of the following in its Rule 16.1 disclosures in May of 2012: (1) copies of the Title III audio recordings; (2) the underlying judicial process (applications and affidavits); (3) line sheets with unofficial "rough" translations of the intercepted conversations; and, (4) the names of the intercepted individuals including identification of wire transmissions where Tat is intercepted or mentioned by others. (Id.).
The Government proffers that it does not intend to present all of this voluminous evidence at trial but advises it will seek to admit both audio recordings and official transcriptions and translations of certain of the relevant intercepted transmissions during its case-in-chief. (Docket No. 788 at 11-12). The Government also states that it has not yet produced any official transcripts and/or translations to the defense because it has not made a final determination of which portions of the evidence it will present at trial and has not procured official transcripts or translations of all of the intercepted communications because of the prospective costs of same, which it estimates may be between $50, 000.00 and $100, 000.00. (Id). The estimates for the production of the transcripts varies so greatly because the Government asserts that it will need to present more voluminous evidence if both Defendant Chuong and Tat exercise their constitutional rights and proceed to a jury trial. (Id.).
III. MOTION TO DISMISS INDICTMENT
The Court initially turns to Tat's Motion to Dismiss the Indictment, wherein he claims that the Indictment should be dismissed for lack of specificity and because marijuana is allegedly no longer properly designated as a Schedule I controlled substance under federal law. (Docket No. 538). The Government opposes both of Tat's theories of dismissal. (Docket No. 788). In short, the Court agrees ...