759 F. Supp. 1163 (1991) | Cited 1 time | W.D. Pennsylvania | January 18, 1991


On or about September 13, 1990, in the Western District ofPennsylvania, a Federal Grand Jury returned a one-countIndictment against the above-named defendants. Therein, it isspecifically charged that from on or around August 12, 1990,and continuing thereafter to on or about August 16, 1990, thedefendants did knowingly, intentionally and unlawfullyconspire together and with one another and with persons bothknown and unknown to distribute and possess with the intent todistribute in excess of five hundred (500) grams of a mixtureand substance containing a detectable amount of cocaine, aschedule II narcotic drug controlled substance, contrary tothe provisions of Title 21, U.S.C. § 841(a)(1), and inviolation of Title 21 U.S.C. § 846.

Before us for disposition are defendants' pre-trial motions.For the purpose of clarity, we will first address the pendingmotions of both defendants which are identical in form andsubstance followed by any separate remaining motions.


1. Motions for Early Disclosure of "Jencks" material.

2. Motions for Disclosure of Impeaching Evidence.

3. Motions to Preserve Evidence.

4. Motions for Bill of Particulars as to Conspiracy.

5. Motions for Notice of Prosecution of Intention to UseEvidence Arguably Subject to Suppression.

6. Motions to Interview Prospective Witnesses.

7. Defendant MacFarlane's Motion to Suppress Post ArrestStatements.

8. Defendant MacFarlane's Motion to Compel Government toDisclose Written Statement of Uncharged Misconduct.

9. Defendant Mustakeem's Motion for Discovery.

10. Defendant Mustakeem's Motion for Limited Release to Assistin Preparation of Defense.

11. Defendant MacFarlane's Request for a Hearing on Audibilityof Government Tape Recordings.


On November 29, 1990, the Court heard argument on allpre-trial motions in the above-referenced matter. At therequest of defendant MacFarlane, the record was kept open. Thedefendant Mustakeem agreed that the Court could defer itsruling on all of the Motions pending the introduction ofadditional evidence by MacFarlane. However, Mustakeemrequested the Court to rule on the Motions identified in Nos.9 and 10, supra.

In the interim, the Court entered an Order on December 27,1990 with regard to Motion No. 10, denying said Motion.However, the Court directed the Warden of the FederalCorrectional Institution at Morgantown, West Virginia, topermit Mustakeem's counsel to visit with him daily from 7:00a.m. to 7:00 p.m., which is beyond the normal visiting hours.

With regard to Motion No. 9, at the direction of the Court,the government obtained information from the AdministrativeAssistant to the Warden of FCI Morgantown, Donald Belknick,which eventually led to the defendant's abandonment of thisMotion as discussed hereinafter.

Also in the interim, at 8:37 a.m. on December 21, 1990,defendant Mustakeem filed a Motion to Review Detention Orderpreviously entered on August 23, 1990. Counsel for Mustakeemrequested the Court to conduct a hearing on his Motion on thesame date it was filed with the Court since counsel would beout of town the following week. Due to previously scheduledmatters, the Court was unavailable and argument on this andall outstanding motions was therefore scheduled for January 4,1991.

On January 4, 1991, argument commenced without the benefitof MacFarlane's counsel who was unavailable because she wasout of town. At this argument, defendant Mustakeem alsoabandoned his Motion to Review Detention Order because counselconceded that the defendant could not effectively rebut thestatutory presumption and instead, orally motioned to have hisclient removed from FCI Morgantown and placed in the ArmstrongCounty Jail or some other nearby facility. Counsel's Motionwas premised upon the fact that the distance from Pittsburghto Morgantown, West Virginia, along with the fact that hisclient was under a twenty-three hour lock-up, made it verydifficult to adequately prepare for trial.

A final hearing was scheduled for January 14, 1991, at whichtime defendant MacFarlane presented no testimony, but did makeadditional argument on his suppression issue, his request forearly disclosure of the government's intention to useuncharged misconduct, the audibility of government taperecordings, and pre-trial release for trial preparation.

The Court hereinafter will discuss the Motions, includingthe defendant Mustakeem's Motions identified in Nos. 9 and 10.


In his Motion, defendant Mustakeem indicates that since hisdetention in Butler County Jail and the Federal CorrectionalInstitution in Morgantown, West Virginia, he and his counselhave had numerous telephone conversations regarding trialstrategy. Defendant further points out that the pay telephonesat FCI Morgantown have a sign posted on them which informs theinmate that all telephone calls will be monitored. In thislight, defendant seeks to determine the following:

A. Were any telephone calls made by defendant monitoredand/or recorded by any law enforcement or jail personnel? Ifso, defendant asks the Court to compel the government toprepare a log or present the records of any intercepted calls.

B. In particular, were any calls between defendant and hisattorney monitored and/or recorded? If so, has the content ofthese calls been disclosed to anyone and, if so, to whom andwhen.

In response to defendant's Motion and pursuant to theCourt's directive, the government prosecutor contacted theadministrative assistant to the Warden of FCI Morgantown, Mr.Donald Belknick, to determine the Bureau of Prison's policywith regard to the monitoring of prisoner's telephone callsfrom prison.2 The sum and substance Of the government'srepresentation on this issue, is that the government does nothave in its possession any information germane to defendants'Motion. Based upon this representation, the defendantabandoned this Motion at the argument held on January 4, 1990,to review defendant Mustakeem's pre-trial detention Order.


Defendant Mustakeem next asks the Court to authorize hispre-trial release, limited in time and scope, for the solepurpose of assisting in defense preparation. Essentially,defendants argue that the travel time of approximately 11/2hours to FCI Morgantown effectively deprives counsel and thedefendants of meaningful trial preparation. DefendantMustakeem argues his trial preparation is further hampered bythe fact the he remains under a twenty-three hour lock-up perday pursuant to a decision made by FCI Morgantown officials.In the alternative, defendant Mustakeem has orally moved to betransferred from FCI Morgantown or some other nearby facilityto facilitate trial preparation.

We note at Part III of the Magistrate Judge's Order ofDetention Pending Trial the following relevant language: "Thedefendant shall be afforded a reasonable opportunity forprivate consultation with defense counsel."18 U.S.C. § 3142(i)(3). This same subsection provides that a detainee maybe released for the purpose of trial preparation to the "extentthat the judicial officer determines such release to benecessary for preparation of the person'sdefense or for another compelling reason." 18 U.S.C. § 3142(i).

At argument, defendant failed to set forth any compelling orotherwise persuasive justification to support his position fora limited release vis-a-vis trial preparation. At the January4, 1991, argument, counsel for Mustakeem and counsel for thegovernment agreed that the Court could independentlyinvestigate the possibility of the defendant Mustakeem beingmoved to the Armstrong County, Pennsylvania, jail. The Courtwas advised that under the present conditions, it was notpossible to move the defendant Mustakeem to either theArmstrong County, Pennsylvania, jail or the Butler County,Pennsylvania, jail. Moreover, the Court determined that theFCI at Morgantown, West Virginia, is approximately 85 milesfrom the Federal Courthouse in Pittsburgh and the normaldriving time is one hour and twenty minutes, and the ArmstrongCounty, Pennsylvania, jail located in Kittanning,Pennsylvania, is approximately 40 miles from the FederalCourthouse in Pittsburgh and the normal driving time is onehour. The U.S. Marshal Service indicated it would attempt tomove defendant Mustakeem to FCI Hancock, West Virginia,located in Weirton, West Virginia, on or about January 25,1991. FCI at Hancock, West Virginia, is approximately 45 milesfrom the Federal Courthouse in Pittsburgh, and the normaldriving time is approximately one hour and ten minutes.

Therefore, the Court entered an Order denying the Motion asstated, but instead, extended the hours currently madeavailable by FCI Morgantown for counsel's visits with hisclient.

In addition, the Court entered an Order directing the Wardenat FCI Morgantown, West Virginia, to permit both defendants tocommunicate with their counsel on unmonitored telephones from7:00 a.m. to 11:00 p.m.


Defendants move the Court for entry of an Order directingthe prosecution to provide to them, not less than ten (10)days before the trial of this cause, all statements of thetype commonly referred to as "Jencks" material.

The Jencks Act, 18 U.S.C. § 3500(a), specifically providesthat no statement or report in the possession of the UnitedStates which was made by a government witness or prospectivegovernment witness shall be the subject of subpoena, discovery,or inspection until such witness has testified on directexamination in the trial of the case. In its Brief, thegovernment challenges, as excessive, defendants' request forproduction of these materials not less than ten days prior tothe commencement of trial.

While we recognize that disclosure under this section isrequired only at trial and that there is no requirement forprior disclosure, we find it is reasonable, under the presentcircumstances, to Order an earlier time for the release ofso-called "Jencks" material. Inasmuch as trial in this matterhas been set for January 28, 1990, an Order shall be enteredforthwith directing the government to furnish defendant withall "Jencks" material by 10:00 a.m. on Friday, January 25,1990.


Defendants' request for "impeachment-type" Brady materialseeks the disclosure of all records and information thatreveals the following:

(A) All felony convictions, guilty verdicts, or juvenile adjudications or guilty verdicts attributed to any witness who may be called by the prosecution, including but not limited to relevant "rap sheets";

(B) All prior misconduct or bad acts attributed to such witnesses;

(C) All consideration or promises of consideration given to or for the benefit of such witnesses;

(D) All criminal prosecutions, investigations, or potential prosecutions pending or which could be brought against the witness, and probationary, parole or deferred prosecution status of the witness, and any civil, tax court, court of claims, administrative or other pending or potential legal disputes or transactions with the prosecution or any other agency, state or federal;

(E) The existence and identification of each occasion on which the witness has testified before any court, grand jury, or other tribunal or body in relation to the defendant or otherwise bearing upon the facts of this case;

(F) The existence and identification or each occasion on which each witness who is an informer, accomplice, co-conspirator or expert has testified before any court, grand jury or other tribunal or body;

(G) All personnel files for the witnesses and the existence and identity of all prosecutorial files for the witnesses;

(H) The same records identified in A through G with respect to each non-witness; and

(I) All other records or information which could arguably be helpful or useful to the defense in impeaching or otherwise detracting from the probative force of the prosecution's evidence.

Under Brady v. Maryland, 373 U.S. 83, 88 S.Ct. 1194, 10L.Ed.2d 215 (1963) the government is not required to discloseneutral or inculpatory evidence, United States v. Polowichak,783 F.2d 410 (4th Cir. 1986), evidence available to the defensefrom other sources or evidence which the defendant alreadypossesses, United States v. Hicks, 848 F.2d 1, (1st Cir. 1988),evidence the prosecutor does not possess, United States v.Kraemer, 810 F.2d 173 (8th Cir. 1987), or evidence of which theprosecutor could not reasonably be imputed to have knowledge orcontrol. Campbell v. Fair, 838 F.2d 1 (1st Cir. 1988).Moreover, the prosecutor is not required to make filesavailable to the defendant for an open-ended "fishingexpedition" for possible Brady material. United States v.Davis, 752 F.2d 963 (5th Cir. 1985).

Under the rubric of Brady material, Defendants' Motioncontemplates the production of information which is not purelyexculpatory, that is, information which might be used toimpeach government witnesses. In Giglio v. United States,405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the Courtapplied Brady to a situation akin to one contemplated bydefendants' motion. In Giglio, the prosecution withheld thefact that it had promised a key witness he would not beprosecuted for his part in a crime if he testified against hiscompanion. The Court found that because the credibility of thewitness was at issue, it was a violation of due process not toinform the jury of the deal. Id. at 153, 92 S.Ct. at 766.

Under Giglio, our focus is directed to the materiality of theinformation sought by defendants. Materiality has been mostrecently defined in United States v. Bagley, 473 U.S. 667, 105S.Ct. 3375, 87 L.Ed.2d 481 (1985) as "material in the sensethat its suppression undermines confidence it the outcome ofthe trial." Id. at 678, 105 S.Ct. at 3381. In theirconcurring Opinion as to part III of the Court's Opinion,Justices Blackmun and O'Connor agreed that "evidence ismaterial only if there is a reasonable probability that, hadthe evidence been disclosed to the defense, the result of theproceeding would have been different. Id. at 682, 105 S.Ct. at3383. Under this standard, a "reasonable probability" is onethat is sufficient to undermine confidence in the outcome. Id.at 682, 105 S.Ct. at 3383. This Circuit has adopted the"reasonable probability" standard in United States v. Pflaumer,774 F.2d 1224 (3rd Cir. 1985).

In this instance, plaintiff has made a request for specific"impeachment-type" "Brady" material. Under the relevant caselaw, disclosure of this information is required only whenthere is a "reasonable probability" that the failure to makesuch a disclosure is sufficient to undermine confidence in theoutcome of the trial. While acknowledging its obligation underBrady, to disclose such evidence at the time it turns over the"Jencks" material in this case, the government specificallydenies possessing any information that would be subject todefendants' motion.

Defendants' Motions shall be denied. To the extent thegovernment has in its possession any "impeachment-type"material it shall disclose the same to the defendants in themanner prescribed in the Order which shall be enteredforthwith.


By this Motion defendants request the Court to enter anOrder directing the government to preserve unaltered allevidence, including surveillance logs and notes or reports bylaw enforcement officers which may relate to this case.Defendants further request the Court to Order the governmentto provide counsel for the defendants with reasonable noticeof the prospective unavailability of any witnesses andreasonable opportunity to interview and secure compulsoryprocess to such witness.

The government does not oppose defendants Motion for thePreservation of Evidence. However, the government indicates itis not prepared to produce a list of potential governmentwitnesses. Our review of Rule 16 of the Federal Rules ofCriminal Procedure leads us to conclude that statements madeby government witnesses or prospective government witnesses,except as provided in 18 U.S.C. § 3500 are not subject todisclosure under the Rule. Fed.R.Crim.P. 16(d)(2).3

While defendants' Motion seeks to secure a reasonableopportunity to interview and secure compulsory process as toany witness the government contemplates calling, such a demandis not authorized by Rule or Statute. Moreover, grantingdefendants the right to review a list of government witnessesbefore trial, without regard to the issue of availability,would more likely than not reveal the government'sinvestigatory work which is precisely the kind of informationintended to be excluded from discovery. Therefore, thedefendants' Motion will be denied.


Pursuant to Rule 7(f) of the Federal Rules of CriminalProcedure, the defendants' Motions for a Bill of Particularsseeks the complete identity of all unindicted co-conspirators,the acts of each alleged co-conspirator, the objectives of theconspiracy, and the substance of any statements made infurtherance of the conspiracy and the identity to whom suchstatement is attributed.

In response to defendant's Motions, the government statesthe defendants have made no showing that the identities ofother alleged "unindicted" co-conspirators are necessary totheir preparation for trial and that these are merely attemptsto obtain the minutia of the government's case, the theory ofthe case and evidentiary matters outside the proper scope ofa Bill of Particulars. Additionally, the government maintainsit is not required to reveal the precise details that eachdefendant and his co-conspirators played in forming andexecuting a conspiracy.

We recognize that motions for a bill of particulars shouldbe granted whenever an indictment's failure to provide factualor legal information significantly impairs the defendant'sability to prepare his defense or is likely to lead toprejudicial surprise at trial. United States v. Rosa,891 F.2d 1063 (3rd Cir. 1989). We also note that in striking a prudentbalance between the defendants' legitimate interest in securinginformation concerning the government's case and numerouscountervailing considerations including, but not limited to thepersonal security of witnesses, the disclosure of the identityand statements of unindicted co-conspirators who the governmentplans to call as witnesses may be ordered. See United States v.Barrentine, 591 F.2d 1069 (5th Cir.), cert. denied,444 U.S. 990,100 S.Ct. 521, 62 L.Ed.2d 419 (1979). At the same time, thedefendant is not entitled to either a wholesale discovery ofthe government's evidence nor to a list of the government'switnesses. United States v. Addonizio, 451 F.2d 49, 64 (3d Cir.1972), cert. denied, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812(1972).

Our determination necessarily focuses upon whether (i) thedefendant is sufficiently informed of the nature of thecharges being brought against him; (ii) to avoid surprise attrial; and (iii) to protect against double jeopardy because ofan inadequately described offense. United States v. Addonizio,451 F.2d at 63, 64).

With these principles in mind, defendants' motions shall bedenied inasmuch as they fail to show that the identities ofany alleged unindicted co-conspirators is necessary to theirpreparation for trial.


Defendants have moved to require the government to providenotice of its intention to use evidence arguably subject tosuppression. Pursuant to Federal Rule of Criminal Procedure12(d)(2), the defendants argue that such a disclosure willminimize if not eliminate many trial objections andinterruptions, thus contributing to judicial efficiency andeconomy as well as ensuring the preservations of their trialrights.

In response, the government indicates that as to eachdefendant in this case, it has previously notified defensecounsel of the following information which might be thesubject of their Motions:

1. That conversations were recorded throughout the use of consensual interceptions. Tape recordings have been provided to defense counsel for defendant MacFarlane.

2. That defendant MacFarlane made incriminating statements post-arrest to law enforcement officers. A report of that statement has been provided to defense counsel.

The government contends the above revelations constitute allof the information in their possession which may lead to amotion to suppress evidence. To the extent that additionalinformation of the same kind becomes available to thegovernment, it has also represented to defense counsel and theCourt that immediate notification will be made to theappropriate counsel. Finally, the government has indicated itscontinuing willingness to respond to any inquiry concerninginformation which is relevant to defendants' Motions.

In view of the government's prior disclosures and assurancesof future notice should pertinent information become availableprior to trial, defendants' Motions shall be denied.


By this Motion, defendants ask the Court to afforddefendants an opportunity, "equal to that of the prosecution",to interview prospective witnesses. The government hasresponded that should the Court direct the defendants tosubmit a list of those witnesses whom they desire tointerview, the government will advise each of the namedwitnesses of the defendants' desire to interview them and willadvise counsel whether and under what circumstances eachindividual would be willing to submit to an interview.

To the extent that defendants' Motion has been previouslyaddressed by the Court in its ruling on the defendants' Motionto Preserve Evidence, the same determination shall be appliedto defendants' Motion to Interview Prospective Witnesses withleave, as invited by the government, for the defendants tosubmit to the government a list of names of potentialwitnesses whom they wish to interview. Therefore, thedefendants' Motion as drawn is denied.


On October 31, 1990, defendants filed a Motion for Notice bythe Prosecutionof Intention to Use Evidence Arguably Subject to Suppression.On or about November 13, 1990, defendant received notice ofthe government's intention to use defendant's post-arreststatements which were allegedly made to law enforcementofficers on the night of his arrest.

Simply stated, on August 16, 1990, at approximately 12:55a.m., Special Agent Frank J. Schmotzer arrested defendantMacFarlane. The defendant alleges that while he was incustody, Special Agent Schmotzer interrogated him in violationof Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d694 (1966).

Based upon the hearing conducted on November 29, 1990, TheCourt now makes the following findings.

1. In the early morning hours of August 16, 1991, SpecialAgent Frank J. Schmotzer, City of Pittsburgh policeman, JackSmith, and other law enforcement officers and undercoveragents were conducting a reverse sting operation involving,among others, defendant Robert MacFarlane.

2. On or around 12:55 a.m., upon completion of their drugtransaction between themselves and an informant, defendantMacFarlane and Todd Wright exited the informant's room locatedon the 6th floor of the Greentree Marriott Hotel.

3. Upon entering the hotel hallway, defendant MacFarlane andTodd Wright were lawfully arrested by Special Agent Frank J.Schmotzer. The arresting officer identified himself as afederal narcotics officer and immediately took the suspects toa nearby room also being used in the investigation. Pittsburghpolice officer, Jack Smith assisted in the arrest.

4. Once in the room, the suspects were placed on the floorand a complete field search of their persons was conducted.While lying face down and before any communication orinterrogation was commenced, Special Agent Schmotzer gaveMacFarlane and Wright their Miranda warnings by reading,verbatim, from a small yellow card identified as a DEA formwhich has been made a part of the record.

5. After he had been given his rights, the defendant madestatements in response to questions asked by Special AgentSchmotzer. The defendant made no request for assistance fromcounsel prior to offering an unsolicited remark and inresponding to Special Agent Schmotzer's questions.

6. The defendant requested that he be able to speak withcounsel only when asked specific questions about othersinvolved in the transaction. At this point, no furtherinterrogation of the defendant took place.

7. The arresting officer did not make any threats orpromises to induce the defendant to make any statements.

Based upon these findings, we conclude that no violations ofMacFarlane's Miranda rights have occurred. MacFarlane'sdetention and arrest by Special Agent Schmotzer reveal noviolations of the Miranda safeguards which were designed tovest a suspect in custody with an added measure of protectionagainst coercive police practices.

Accordingly, defendant MacFarlane's Motion to Suppress ishereby, denied.


Defendant MacFarlane seeks to compel the government todisclose its intention to use evidence at trial consisting ofuncharged misconduct pursuant to Rule 404(b) under the FederalRules of Evidence. Defendant contends that his rights to dueprocess and effective representation will be devastated absenta favorable ruling on his Motion.

We find no case law in this circuit requiring the disclosureof such information. The defendant cites the case ofUnited States v. Baum, 482 F.2d 1325 (2nd Cir. 1973), for theproposition that the disclosure rather than suppression ofuncharged misconduct promotes the proper administration ofcriminal justice. While such a statement has obvious appeal, wefind that the conduct of the government in Baum is readilydistinguished from the conduct ofthe government in the instant case. In Baum, the governmentactively concealed the identity of its final witness and it wasthis act of concealment which was condemned by the Court. Here,however, no such assertion can be made.

We are also satisfied there are sufficient safeguards in theFederal Rules of Evidence to ensure against the admission ofimproper evidence of uncharged misconduct. In determining theadmissibility of evidence under Rule 404(b), the Court mustfirst determine whether the proffered evidence is relevant fora purpose other than to show a propensity or disposition onthe part of the defendant to commit a crime. Additionally, theCourt must balance the same to determine if the probativevalue of the evidence is substantially outweighed by thedanger of unfair prejudice, confusion of the issues, orpossibly misleading to the jury. Rule 403, Federal Rules ofEvidence; United States v. Herman, 589 F.2d 1191 (3d Cir.1978). We conclude that the Court will be in a better positionto rule on the admissibility of these matters during the courseof trial.


On January 4, 1991, argument was scheduled on thedefendant's Motion to review the pre-trial detention Orderentered by Magistrate. Judge Ila Sensenich. However, atargument, no evidence was adduced by the defendant because hiscounsel believed that he could not overcome the statutorypresumption. In light of the fact that this Motion has beenabandoned, no disposition by the Court is necessary.


After counsel conducted her own review of a second set oftape recordings provided to her by the government, the Courtwas informed that no question regarding audibility remainedfor the Court's consideration. As such, no disposition by theCourt is necessary.

An appropriate Order regarding the Court's disposition ofthe defendants' pretrial Motions shall be entered forthwith.

1. Defendant Mustakeem filed a subsequent Motion to ReviewPre-trial Detention Order which was abandoned at the January4, 1991 argument due to defendant's concession that he wouldbe unable to overcome the statutory presumption found at21 U.S.C. § 801 et seq.

2. Based upon Mr. Belknick's response, FCI, Morgantown,maintains a phone monitoring system for social telephonecalls. All inmates are made aware of this policy when theyenter the facility through the following means: (1) anadmission/orientation handbook provided to all inmates whoenter the institution; (2) a document entitled Form 109A; (3)stickers placed on the phones which are monitored advising theinmates that calls placed over these phones are monitored; and(4) each inmate is required to sign a notice indicating his orher awareness that a particular telephone line is monitored bythe prison. Tape recordings of monitored calls are madestrictly for the institution's purposes and do not leave theinstitution without a Court order.

The government's letter further advises that non-monitoredtelephone lines are available to inmates to contact theirattorneys. A log is maintained for the non-monitoredtelephones. Any inmate who wishes to place a call to hisattorney may use a telephone which is not monitored by theprison by contacting his prison counselor and advising thecounselor that he wishes to make such a call. Call frominmates to their attorneys are not monitored or recorded.

3. 18 U.S.C. § 3500(a) provides:

(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.

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