Opinion
S1 01 Cr. 635 (CSH)
January 29, 2002
MEMORANDUM OPINION AND ORDER
Trial in this case is scheduled to begin February 19, 2002. At a status conference held on January 25, 2002, the defendant renewed his earlier request for an order requiring the government, with respect to the two separate conspiracies alleged in the indictment, to furnish the names of his alleged co-conspirators in each of the two conspiracies, to the extent those identities are known to the government. The initial request was made in a motion before Judge Hellerstein, to whom this case was previously assigned, for an order directing the government to provide a bill of particulars. The defendant contended that knowledge of his alleged co-conspirators' identities was crucial in preparing his defense, given that as part of his job he frequently undertook the activity underlying the criminal charges — securing visa applications at the request of the Nigerian drug authorities. The government initially opposed the request on the ground that in view of the relatively short duration and confined scope of the charged conspiracies, information about his alleged co-conspirators was not necessary for the defendant to adequately prepare his defense.
At a hearing held before Judge Hellerstein on October 26, 2001, the government raised for the first time the specter of witness tampering as an additional reason for denying Newton the information he requested. The government did not suggest that it had information that any attempts at witness tampering had been made. It merely raised the general possibility of witness tampering, given that Newton had many contacts in Nigeria "which is a relatively lawless country" and had made one trip back to Nigeria since the commencement of the case. Tr. at 7-8. In response, Newton's counsel, Mr. Scotti, denied that witness tampering was a legitimate concern and rejected the government's suggestion that the trip was made with any improper motive. Judge Hellerstein did not make a finding on the witness tampering argument, commenting as follows:
I want to tell you, first, Mr. Scotti, that I am not persuaded at this point that there has been any witness tampering or that there will be. This is a normal concern of the government and whether or not it is a concern that is rooted in facts rather than in suspicion at this point in time is not something I need to get into, but I just want you to know you don't have to rebut that particular point. I am not persuaded.
Tr. at 9. The Court nonetheless denied defendant's request for disclosure, in part because the Court found it sufficient at that stage to require the government to submit a bill of particulars making it clear which of the substantive counts in the indictment related to each conspiracy. The Court stated, however, that it was denying the request only "for the present time," giving defendant "leave to bring that before me again at the final pretrial conference. . . ." Tr. at 12-13.
Making use of that permission, defendant renewed the motion before me. At the status conference on January 25, defendant argued that the identity of the co-conspirators is a critical piece of information for his determination whether, given their close proximity in time, same location and similar activities, the two conspiracies should have been charged as one. In defendant's view, ascertaining whether the two conspiracies involved different co-conspirators is essential in deciding whether he would have a basis for moving to dismiss one of the conspiracy counts as multiplicitous before the case is presented to the jury. The government opposes defendant's request by arguing that the co-conspirators' identities is not information the government should be required to share before trial. As the government explained:
I think that this is appropriately left for trial rather than requiring the government to essentially provide pretrial disclosure of information that it is routinely not required to disclose.
Tr. at 17.
It is beyond dispute that this Court has the authority, in its discretion, to order the government to disclose the identities of known unindicted co-conspirators. See, e.g., United States v. Nachamie, 91 F. Supp.2d 565, 572 (recognizing that the "Second Circuit has affirmed both the grant and the denial of' requests for disclosure of the names of unindicted co-conspirators); United States v. Gotti, 784 F. Supp. 1017, 1019 (E.D.N.Y. 1992) ("The better authority, then, mandates that the question of granting the request of these defendants for a bill of particulars [seeking the names of any unindicted co-conspirators] is entirely a mailer of the sound discretion of the court."); United States v. Ferrarini, 9 F. Supp.2d 284, 299 (S.D.N.Y. 1998) (requiring government to provide list of co-conspirators). Having considered the parties' arguments, I grant defendant's request. The government's witness tampering argument, which it did not press again at the status conference before me, is speculative. The government does not profess to have any specific information that the defendant has or will attempt to tamper with witnesses. Thus, there is no indication that Newton has acted improperly with respect to any potential witnesses in this case, nor is there anything about Newton or the charges in this case that would make witness tampering more likely. Other than the witness tampering argument, the government's only objection to disclosure of the co-conspirators' identities is that such information is not necessary or required.
Indeed, if the defendant is guilty of the charged crimes as the government maintains, presumably he already possesses sufficient information about his co-conspirators' identities to allow him to make overtures to them.
On balance, I am persuaded by defendant's argument that learning the identities of his alleged co-conspirators is necessary to enable him to determine whether the conspiracy counts are multiplicitous and to prepare his defense. While the government's concerns about interference with its witnesses may be speculative, they are nonetheless to be taken seriously. Yet, the short duration of time remaining before trial diminishes those concerns while at the same time making more pressing the defendant's need to prepare his defense. With these considerations in mind, I direct the government to provide defendant with the names of the alleged co-conspirators known to the government in each of the two charged conspiracies on or before January 31, 2002.
It is SO ORDERED.