Opinion
No. 02 Cr. 888 (LTS)
October 8, 2002
MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendant's Motion to Suppress Evidence, Motion in Limine to Suppress Statement, Motion for Full and Complete Discovery, and Motion for Notice Regarding 404(b) Evidence, all of which were filed on September 4, 2002. The Defendant submitted an affidavit in support of his motion to suppress evidence on September 10th, and the Government filed a response to the motions on September 27, 2002.
The Court, having fully considered all of the parties' submissions and arguments, w ill now address each motion in turn.
Motion to Suppress Evidence
An evidentiary hearing will be held on November 1, 2002 with respect to the admissibility of physical evidence seized on May 7, 2002. Decision is therefore reserved as to this motion.
Motion to Suppress Statement
In his Motion in Limine to Suppress Statement, Defendant argues that he was not given the Miranda warnings prior to being interrogated in police custody. Furthermore, he asserts that he had not knowingly and intelligently waived his rights under the Fifth Amendment to the Constitution of the United States prior to signing a statement transcribed by Detective Davis. The Government has proffered a sworn Complaint signed by Detective Davis, which alleges that Davis advised the Defendant of his constitutional rights before interrogating him and that Defendant waived those rights before giving a statement to Davis. In addition, the Government proffers an advice-of-rights form apparently signed and initialed by Defendant. Defendant has not met the Complaint or the Miranda form with any factual allegations of his own.
A motion to suppress a confession must be supported by an affidavit that contains not just a "bald assertion that a statement was involuntary" but a "factual basis for such a characterization." United States v. Mathurin, 148 F.3d 68, 69 (2d Cir. 1998). That burden is ordinarily met by submitting an affidavit of a person with personal knowledge of the facts. U.S. v. Belin, 2000 WL 679138 (S.D.N.Y.) (citing U.S. v. Ahmad, 992 F. Supp. 682 (S.D.N.Y. 1998)). Courts in this District have routinely denied motions to suppress statements made to police allegedly in violation of Miranda rights when the defendant fails to submit an affidavit from an individual with personal knowledge about the circumstances of the defendant's statement. See, e.g., United States v. Amery, 2002 WL 31027514, at *1 (S.D.N.Y. Sept. 10, 2002). In the absence of any competent factual allegation suggesting improper governmental conduct, no hearing is warranted. United States v. Salameh, 152 F.3d 88, 117 (2d Cir. 1998).
Accordingly, Defendant's Motion in Limine to Suppress Statement is denied.
Motion for Full and Complete Discovery Brady Material
Defendant requests that the Government produce (presumably, immediately) all exculpatory materials within the meaning of Brady v. Maryland, 373 U.S. 83 (1963). Under Brady, the Government is obligated to provide favorable evidence to the defense where the evidence is material to guilt or punishment. Brady, 373 U.S. at 87; In re United States v. Coppa, 267 F.3d 132, 139 (2d Cir. 2001). "Favorable evidence includes not only evidence that tends to exculpate the accused, but also evidence that is useful to impeach the credibility of a government witness." Coppa, 267 F.3d at 139 (citing Giglio v. United States, 405 U.S. 150, 154 (1972)). Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different. "A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682 (1985). Only evidence that is material, as defined by the reasonable probability test set forth in Bagley, must be disclosed under Brady. See Coppa, 267 F.3d at 141 ("the current Brady law . . . imposes a disclosure obligation narrower in scope than the obligation to disclose all evidence favorable to the defendant") (citing Kyles v. Whitely, 514 U.S. 419 (1995)) (internal quotation marks omitted).
As a general rule, Brady does not require immediate disclosure of exculpatory evidence and impeachment material upon defendant's request. Coppa, 267 F.3d at 146. "There is no Brady violation unless there is a reasonable probability that earlier disclosure of the evidence would have produced a different result at trial." Coppa, 267 F.3d at 144. In Coppa, the Second Circuit set the timing of Brady disclosures as follows: "[T]he prosecutor must disclose `material' (in the Agurs/Bagley sense) exculpatory and impeachment information no later than the point at which a reasonable probability will exist that the outcome would have been different if an earlier disclosure had been made." Coppa, 267 F.3d at 142. Accordingly, "as long as a defendant possesses Brady evidence in time for its effective use, the government has not deprived the defendant of due process of law simply because it did not produce the evidence sooner." Coppa, 267 F.3d at 144. Moreover, it is the Government's responsibility to determine what evidence is material and when such evidence should be disclosed in time for its effective use. See Coppa, 267 F.3d at 143 ("The prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of `reasonable probability' is reached.") (citing Kyles v. Whitely, 514 U.S. at 437).
The trial of this matter has not yet been scheduled. Defendant has not shown that general Brady disclosure so far in advance of the trial is necessary to ensure due process of law and Court sees no reason to so conclude. The Government's ultimate production of material exculpatory and impeachment evidence must, however, be timed so as to enable Defendant to use the material effectively at trial.
Giglio Material
Defendant also requests that the Court direct the Government to provide (again, presumably immediately) any material useful to impeach the credibility of Government witnesses. In Coppa, the Court of Appeals for the Second Circuit made clear that the timing requirement for disclosure of such Giglio material is the same as that for exculpatory materials required to be disclosed under Brady. See Coppa, 267 F.3d at 139. In other words, Giglio material must be disclosed in time to permit its effective use at trial. Id. at 146. Thus, just as the Government has no obligation to provide Brady-type exculpatory evidence on Defendant's demand, the Government has no obligation to provide Giglio-type impeachment material on Defendant's demand. As is the general case with Brady material, it is the Government's responsibility to determine what Giglio evidence is material and when such evidence must be disclosed to permit its effective use.
Defendant's request for immediate production of Brady and Giglio materials is therefore denied.
Rule 16 Material
Defendant also requests an order requiring the immediate production of a variety of evidentiary material pursuant to Rule 16 of the Federal Rules of Criminal Procedure. The Government represents in its response to the motion that it has produced all Rule 16 material that is in its possession and has described on the record its continuing efforts to obtain additional material from state authorities.
Defendant's Rule 16 request is therefore denied as moot at this time.
Motion for Notice of 404(b) Evidence
Defendant requests that the Court direct the Government to identify, at least three weeks before trial, evidence that may be proffered at trial pursuant to Rule 404(b) of the Federal Rules of Evidence. Rule 404(b) provides, in pertinent part:
[e]vidence of other crimes, wrongs, or acts . . . may . . . be admissible . . . provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial . . . of the general nature of any such evidence it intends to introduce at trial.
What constitutes reasonable notice depends upon the circumstances of the particular case. See United States v. Kevin, No. 97 Cr. 763, 1999 WL 194749, at *13 (S.D.N.Y. April 7, 1999) (collecting cases). The purpose of the notice provision is "to reduce surprise and promote early resolution" of any challenge to admissibility of the proffered evidence. To ensure adequate time for the efficient pretrial consideration of any disputes concerning Rule 404(b) material, the Government is hereby directed to make its 404(b) disclosures and any related motions in limine no fewer than three weeks before trial. Any such motion practice by the defense shall be commenced as promptly as possible and in no event fewer than ten days prior to trial.
IT IS SO ORDERED.