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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

-------------------------------------------------X 

UNITED STATES OF AMERICA, : 

 -against- : Docket 07 Cr. 566(GBD) 

DAVID WILKINS, et al., : 

 

-------------------------------------------------X 

 

 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT 

 DAVID WILKINS PRETRIAL MOTIONS 

 

 

 

 Toni Messina, Esq. 

 100 Lafayette Street, Suite 502 

 New York, NY 10013 

 646-207-4705 

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 TABLE OF CONTENTS 

Preliminary Statement.......................................................................... 7 

Factual Background............................................................................... 7 

Point I THE ELECTRONIC EAVESDROPPING EVIDENCE SHOULD BE 

 SUPPRESSED ON THE GROUNDS THAT: (1)THE GOVERNMENT 

 FAILED TO ESTABLISH THAT THE WIRE TAP 

 WAS NECESSARY; AND (2) THE AGENTS FAILED TO MINIMIZE THE 

 INTRUSION. ...................................................................... 8 

 

Point II PURSUANT TO THE DUE PROCESS CLAUSE AND SIXTH 

 AMENDMENT, THE COURT SHOULD DIRECT THE GOVERNMENT TO 

 TRANSCRIBE ALL OF THE INTERCEPTED COMMUNICATIONS, 

 IDENTIFY THOSE IT DEEMS TO BE EITHER INCULPATORY OR 

 EXCULPATORY, INDICATE WHICH TAPES IT INTENDS TO OFFER 

 INTO EVIDENCE, AND SPECIFY WHICH CONVERSATIONS 

 DEFENDANT EITHER PARTICIPATED IN DIRECTLY OR WAS THE 

 SUBJECT OF DISCUSSION BY OTHERS........................................17 

Point III PURSUANT TO THE FEDERAL RULES, THE COURT SHOULD DIRECT 

 THE GOVERNMENT TO PROVIDE THIRTY DAYS IN ADVANCE OF 

 TRIAL (1) ALL EXHIBITS EXPECTED TO BE OFFERED DURING ITS 

 DIRECT CASE; (2) A LIST OF ANTICIPATED WITNESSES; (3) A LIST OF 

 ALL UNINDICTED COCONSPIRATORS; (4) A SUMMARY OF EXPERT 

 TESTIMONY; AND (5) NOTICE OF ANY UNCHARGED CRIMES AND 

 PRIOR BAD ACT EVIDENCE IT MAY SEEK TO OFFER INTO 

 EVIDENCE..............................................................................20 

Point IV PURSUANT TO BRADY AND ITS PROGENY, THE COURT SHOULD 

 DIRECT THE GOVERNMENT TO DISCLOSE AS SOON AS IT BECOMES 

 AVAILABLE, ANY MATERIAL THAT IS EITHER EXCULPATORY, 

 USEFUL FOR PURPOSES OF CROSS-EXAMINATION OR HELPFUL IN 

 DISCOVERING OTHER MATERIAL INFORMATION........................23 

Point V THE COURT SHOULD RULE IN LIMINE THAT THE STATEMENTS 

 CONTAINED IN THE EAVESDROPPING APPLICATIONS, LINE 

 SHEETS AND PROGRESS REPORTS ARE ADMISSIBLE AGAINST THE 

 GOVERNMENT IN THE EVENT THAT THEY CONFLICT WITH THE 

 GOVERNMENT’S TRIAL ALLEGATIONS.......................................26 

Point VI DEFENDANT REQUESTS PERMISSION TO JOIN THE MOTIONS 

 SUBMITTED BY THE CO-DEFENDANTS TO THE EXTENT THAT THEY 

 ARE RELEVANT AND APPLICABLE AND FOR ANY OTHE RELIEF 

 THAT HE COURT MAY DEEM JUST AND PROPER and DOES NOT 

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 OBJECT TO ANY JOINDER CODEFENDANTS MAKE TO THIS 

 MOTION.................................................................................30 

Conclusion.........................................................................................30 

 

 

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 PRELIMINARY STATEMENT

 This memorandum is submitted in support of the defendant David Wilkin’s application 

for an Order: (1) Suppressing wiretapped conversations; (2) directing the government to 

transcribe the intercepted communications and categorized them in specified manners; (3) 

directing the government to provide various forms of discovery thirty days before trial, 

including a list of exhibits and witnesses; (4) directing the government to disclose Brady 

material as soon as it becomes available; (5) deciding in limine, the admissibility of 

various statements by government agents; and (6) granting permission to join in the 

motions of the co-defendants to the extent they are applicable. 

 FACTUAL BACKGROUND

 Defendant David Wilkins was arrested and indicted for his alleged involvement in a 

narcotics conspiracy. His arrest was based in large part on wire-tapped conversations 

secured by the Government through a series of affidavits prepared by several DEA agents 

between August, 2006 and January, 2007. 

 The original wire-tap authorization permitted the tapping of a cellular phone belong to 

Craig McDuffie, AKA “Large-O.” Most of the information used in all subsequent 

wiretap requests mirrors the language in this original request, but for some additional 

information obtained through the course of the taps. It was through this tap of 

McDuffie’s phone that law enforcement was led to David Wilkins, and therefore the 

information in the McDuffie Affidavit is pivotal in determining whether all the wiretap 

authorizations which proceeded from it were valid. 

 An investigation involving firearm sales and narcotics trafficking concentrating on the 

“Rangel Houses” in the Bronx began in 2004. Apparently based on this investigation 12 

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people were arrested in January, 2005. (None of them are named in the present 

indictment.) A defendant in that arrest became a cooperating witness (CW) who worked 

with police to secure the McDuffie-wiretap authorization. 

 According to the affidavit police also worked with a confidential informant (CI) 

through whom they made controlled buys of cocaine from McDuffie. The CI on one date 

wore a wire when defendant David Wilkins allegedly provided him with crack/cocaine. 

On several occasions police set up surveillance locations and reviewed telephone toll 

records to corroborate the CI’s information, although at one point the Agent noted the CI 

was no longer “reliable” in that he appeared to be involved anew in the drug trafficking 

scheme. (See Bates 430, footnote.) 

 An eavesdropping warrant was issued for McDuffie’s phone and five subsequent 

warrants issued on a monthly basis on phone numbers attributed to Wilkins. (The 

McDuffie wiretap was discontinued.) 

 While the factual basis for the taps grew with each successive application, the language 

detailing the necessity of the taps, i.e. why other less-intrusive methods could not be 

employed—remained identical. This memo will argue that the wiretapping was not 

necessary to achieve the government’s ends and how minimization requirements were not 

met during the surveillance. 

 

 POINT I 

 THE ELECTRONIC EAVESDROPPING EVIDENCE 

 SHOULD BE SUPPRESSED ON THE GROUNDS THAT: 

 (1) THE GOVERNMENT FAILED TO ESTABLISH THAT THE 

 WIRETAP WAS NECESSARY; AND (2) THE AGENTS FAILED 

 TO MINIMIZE THE INTRUSION. 

 

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 The “bulwark of Fourth Amendment protection is, of course, the Warrant Clause, 

requiring that, absent certain exceptions, police obtain a warrant from a neutral and 

disinterested magistrate before embarking upon a search.” Franks v. Delaware, 438 U.S. 

154 (1978). It is also fundamental that “the Fourth Amendment protects a person’s 

private conversations as well as his private premises.” Alderman v. United States, 394 

U.S. 165, 178 (1968). Further, Title III was enacted as an additional safeguard both to 

protect the privacy of wire and oral communications, as well as a means of regulating 

“the use of electronic surveillance evidence obtained by law enforcement under specified 

conditions.” United States v. Lopez, 300 F.3d 46, 51 (1st Cir. 2002), citing Bartnicki v. 

Vopper, 532 U.S. 514, 523 (2001). Thus, Title III considers the interception of electronic 

surveillance to be an “extraordinary investigative technique whose use ‘is to be distinctly 

the exception and not the rule,’” Lopez, 300 F.3d at 51, quoting United States v. Hoffman, 

832 F. 2d 1299, 1306 (1st Cir. 1987), available only upon satisfaction of strict procedural 

requirements. 

WIRETAPPING PHONES WAS NOT NECESSARY TO MEET THE 

GOVERNMENT’S OBJECTIVES

 The Fourth Amendment requires that courts should authorize “no greater invasion of 

privacy...than necessary under the circumstances.” Berger v. State of N.Y., 388 U.S. 41, 

57 (1967); see also, Katz v. United States, 389 U.S. 437 (1973). 

 Thus, the statue is “designed to assure that wiretapping is not resorted to in situations 

where traditional investigative techniques would suffice to expose the crime.” United 

States v. Kahn, 415 U.S. 143, 153 p.12 (1974); see also, United States v. Giordano, 416 

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U.S. 505 (!974); United States v. London, 66 F.3d 1227, 1237 (1st Cir. 1995). Such 

traditional investigative techniques include, inter alia; 

 ‘(1) standard visual and aural surveillance; (2) questioning and interrogation of 

witnesses or participants (including the use of grand juries and the grant of immunity if 

necessary); (3) use of search warrants; and (4) infiltration of conspiratorial groups by 

undercover agents or informants. Van Meter, 278 F.3d 11561163-64 (9th Cir. 1002). 

 Where those traditional techniques have not been attempted, the government must 

“explain that failure with particularity.” United States v. Cline, 349 F.3d 1276, 1280 (10th

Cir. 2003). It is therefore insufficient to recite mere generalities or conclusory statements 

without detailed factual support. Id.; see also, United States v. Lopez, 300 F.3d 46, 53 (1st

Cir. 2004). 

 Unlike some statutory provisions, the requirement for a “full and complete statement’ 

about the failure to utilize other investigative procedures is “absolute.” United States v. 

Salemme, 978 F.Supp. 343, 348 (D.Mass. 1997). Suppression may be required where 

applications are incomplete or misleading in this regard, as the “constitutionality of Title 

III relies in meaningful measure on the process it provides for an independent judicial 

officer, rather than a law enforcement officer...to decide that electronic surveillance is 

necessary.” Id; see also, Steagald v. United States, 451 U.S. 204, 212 (1981); Johnson v. 

United States, 333 U.S. 10, 14 (1948). 

 Yet these statutory conditions are ‘far from an insurmountable hurdle,’ and require 

only that the government demonstrate ‘that normal investigative techniques would prove 

difficult; and not that any other option would be doomed to failure.” United States v. 

Pappas, 298 F.Supp.2d 250 (D.Conn. 2004), quoting United States v. Young, 822 F.2d 

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1234, 1237 (2nd Cir. 1987). When reviewing “necessity,” courts employ a “common 

sense approach” to evaluate the reasonableness of the government’s claims. United 

States v. Gonzalez, 412 F.2d 1102, 1112 (9th Circ. 2005). 

 In the present case the objectives of the wire tapping were wide in scope. The 

government believed Craig McDuffie (the original person wiretapped which ultimately 

led to Defendant Wilkins) was part of a narcotics and money laundering conspiracy. The 

tap was intended to discover, inter alia, the extent of the operation, the identities of 

McDuffie’s accomplices, and the locations of contraband and proceeds from those 

activities. 

 While the affidavit sworn to by DEA Agent Dante Gray comprised some 32-pages, the 

paragraphs describing the ‘necessity’ for the wiretap and explaining other less intrusive 

police actions attempted and not attempted only comprise seven pages. The language is 

largely boilerplate and is repeated verbatim in all five subsequent wiretap applications 

even though clearly more information had been gathered through the prior wiretaps and 

arguably the need for continued surveillance was lessened. 

 In each application Agent Gray, and then Agent Danielle Rauen acknowledge that they 

had sufficient probable cause to arrest first Craig McDuffie then David Wilkins but 

decide that doing so would leave their objectives “unfulfilled” in that neither would 

cooperate or have “little or no knowledge” about the larger scheme police were 

attempting to penetrate. (Gray Affidavit, Bates 284, graph (a); Rauen Affidavit, Bates 

450 (a).) 

 This assumption is conclusory without any explanation pinned to the particular 

characteristics of these defendants or this investigation. Contrary to what the Agents 

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state, the very investigation they submit would not produce positive results from the 

arrest of suspects or continued surveillance was actually based on the arrest of 12 people 

and the cooperation of at least one of them who became the CI in the present case. 

 The mere assumption that less intrusive methods would be unavailing is insufficient to 

justify the necessity of the warrant. If law enforcement were permitted to merely 

peremptorily state the futility of trying old-fashioned, tried and true police methods 

without actually trying those methods first, it would render moot the ‘necessity’ 

requirement of Title III. 

 The warrant goes on to describe the following categories it deemed a priori futile: 

-Confidential Informants and Cooperating Witnesses, 

-Undercover Agents, 

-Surveillance, 

-Telephone Toll Records, 

-Grand Jury, 

-Witness Interviews, and 

-Search Warrants, 

 Yet, contrary to their claim of anticipated failure, many of the methods, such as using 

confidential informants, cooperating witnesses, undercover agents, and toll records had 

already proved successful in the case. The fact that these less-intrusive police methods 

had proved successful, militates against the necessity of tapping phone lines. 

 In sweepingly general language, the agents argue that the other methods listed above 

(such as interviewing witnesses, added surveillance, search warrants, etc.) would not 

prove fruitful because they are “limited; would not lead to the discovery of critical 

information and undoubtedly would alert the TARGET SUBJECTS to the pendency of 

this investigation.” (Gray, Bates 289(g); Rauen, Bates 455(e).) 

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 The affidavits state that video surveillance would be unavailing since there was only 

one entrance to the building complexes being watched. While counsel doesn’t pretend to 

be an expert in surveillance methods, it seems probable that one entrance might actually 

facilitate photographing and observing who enters and exits a group of buildings. 

 As the court stated in United States v. Gonzalez, supra at 1114: 

 Although the affidavit claimed that neither physical nor video surveillance was likely 

 to produce useful information...we cannot accept this as evidence that such 

 surveillance was reasonably unlikely to bear fruit. Surely surveillance is not 

 completely unsuccessful if it does not decipher what an individual is writing while she 

 sits are her desk...it is still reasonable to conclude that video or physical surveillance 

 could have identified individuals...coming and going from the office. This 

 information certainly would have assisted law enforcement in discovering the identities 

 of member of the criminal enterprise and aiders and abettors. 

 According to the court in United States v. Blackmon, 273 F.3d 1204 12, 10-11 (9th cir. 

2001), these kinds of remarks are simply “boilerplate conclusions that merely describe 

inherent limitations of normal investigative procedures.” 

 Without being willing to explore traditional, less-invasive police methods such as 

tracking down and interrogating witnesses, making arrests and securing cooperation, the 

government contends that in any case involving multiple suspects, it is more effective to 

wiretap. While it’s true that tapping phones may be the easiest way to investigate crime, 

courts have set perimeters to this investigatory tool exactly because it could easily 

become the tool of choice in every investigation thereby obliterating any protection 

against the invasion of privacy for anyone who uses a telephone. The government should 

be held to its burden of paying more than a cursory nod to less-invasive investigatory 

techniques before a wiretap is condoned. (See also U.S. v. Lilla, 699 F.2d 99, C.A.N.Y. 

1983, and cases cited therein.) 

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 In the present case traditional investigatory techniques were insufficiently explored to 

justify the necessity for wiretapping. The conversations overheard through these taps 

should, thus, be suppressed. 

AGENTS DID NOT SUFFICIENTLY MINIMIZE THEIR SURVEILLANCE

 18 U.S.C. 2518(5) mandates that eavesdropping orders “shall be conducted in such a 

way as to minimize the interception of communications not otherwise subject to 

interception under this chapter.” “The minimization requirement ‘spotlights the interest 

in confining intrusions as narrowly as possible so as not to tread impermissibly upon the 

personal lies and privacy of wiretap targets and those who, often innocently, come into 

contact with such suspects.’” United States v. Lopez, 300 F.3d at 57, supra, quoting 

United States v. Hawkins, 279 F.3d 83, 85 (1st Cir. 2002). When attempting to meet its 

obligation to minimize unauthorized communications, “the government is held to a 

standard of honest effort; perfection is usually not attainable, and is certainly not legally 

required.’” United States v. Charles, 213 F.3d 10, 22 (1st Cir.), cert denied, 531 U.S. 915 

(2000), quoting United States v. Uribe, 890 F.2d 554, 557 (1st Cir. 1989). 

 In Scott v. United States, 436 U.S. 128, 139 (1978), the Supreme Court indicated that 

the government’s minimization efforts should be evaluated on a case by case basis. See 

also, United States v. Napolitano, 552 F. Supp. 465, 476 (S.D.N.Y. 1979). Relevant 

considerations include: the number of targeted individual; the ambiguity of the 

intercepted conversations; the complexity of the acts and nature of the suspected crimes; 

the thoroughness of the government’s precautions to bring about minimization; and the 

degree of judicial supervision over the surveillance process. See, United States v. Ozar, 

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50 F.3d at 1147, supra; United States v. London, 66 F.3d 1227, 1236 (1st Cir. 1995); 

United States v. Garcia, 785 F.2d 214, 224 (8th Cir.), cert. denied, 475 U.S. 1143 (1986). 

 In this case, while the court ordered that the interceptions “be conducted in a such a 

way as to minimize the interception of wire communications not otherwise subject to 

interception under Ch.119 of Title 18,” (Order, B.299), the court gave no instruction on 

how this minimization should occur. Thereby there is no independent way to determine 

what uniform factors agents used to accomplish minimization. And while calls some 

calls were minimized, the percentage of calls minimized was so low as to put into doubt 

whether any specific procedure was followed. 

 Over the course of the six-months of wiretapping the breakdown relating to 

minimization and pertinent calls is as follows: 

First Affidavit, 

1st Periodic Report: Only 80 out of 1600 calls were minimized (.05%), and only 25 

were identified as pertinent. 

2nd Periodic Report: Only 43 out of 2137 calls were minimized, and only 52 were 

identified as pertinent. 

3rd Period Report: Only 37 calls were minimized out of 2039, and only 202 identified 

as pertinent. 

Second Affidavit, 

 1st Periodic Report: Only 77 were minimized out of 1833, with only 134 calls found 

to be pertinent. 

 2nd Periodic Report: Only 84 calls were minimized out of 1398, with 116 found to be 

pertinent. 

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Third Affidavit, 

 1st Periodic Report: Only 7 calls were minimized out of 173, and 7 calls found to be 

pertinent. 

 2nd Periodic Report: Only 63 calls were minimized out of 1429, with 71 found to be 

pertinent. 

Fourth Affidavit: 

 1st Periodic Report: 116 calls were minimized out of 1352, and only 62 calls found to 

be pertinent. 

 2nd Periodic Report: Only 66 calls were minimized out of 760 and 55 found pertinent. 

Final Affidavit: 

 1st Periodic Report: Only 111 calls were minimized out of 2064 with only 53 found to 

be pertinent. 

 2nd Periodic Report: Only 75 calls were minimized out of 1523, with only 62 found to 

be pertinent. 

 3rd Periodic Report: Only 120 calls were minimized out of 1213 calls and only 36 

found to be permanent. 

 Based on the above information, the number of calls minimized over the six-month 

wiretap was less than 10% of the calls overheard and an even smaller percentage were 

deemed pertinent in each periodic report. This begs the question, if so few calls 

percentage-wise were deemed pertinent, why weren’t fewer calls minimized? 

Compare, People v. Holder, 69 Misc.2d 863 (Nassau County Ct. 1972) (Suppressing 

where fewer than 10% of the intercepted calls were relevant to the conspiracy); People v. 

Castania, 73 Misc.2d 166 (Monroe County Ct. 1973) (minimization had not been 

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achieved where 23.6% of calls were pertinent); United States v. Ianiello, 621 F.Supp. 

1455, 1470 (S.D.N.Y. 1985) (No suppression where 80% of calls regarding contested 

period related to narcotics); United States v. Manfredi,488 F.2d 588 (2nd Cir.1973)(No 

suppression where 800 of 1000 calls were not pertinent). While “blind reliance on the 

percentage of nonpertinent calls intercepted is not a sure guide to the correct answer” 

with regard to minimization, Scott v. United States, 436 U.S. 128, 140 (1978), there is 

also no question that such percentages are an important factors. Id; see also, United 

States v. Gray, 372 F.Supp.2d 1025 (N.D. Ohio 2005). 

 POINT II 

 PURSUANT TO THE DUE PROCESS CLAUSE 

 AND THE SIXTH AMENDMENT, THE COURT 

 SHOULD DIRECT THE GOVERNMENT TO 

 TRANSCRIBE ALL OF THE INTERCEPTED 

 COMMUNICATIONS, IDENTIFY THOSE IT 

 DEEMS TO BE EITHER INCULPATORY OR 

 EXCULPATORY, INDICATE WHICH TAPES 

 IT INTENDS TO OFFER INTO EVIDENCE, 

 AND SPECIFY WHICH CONVERSATIONS 

 DEFENDANT EITHER PARTICIPATED IN 

 OR WAS THE SUBJECCT OF DISCUSSION BY 

 OTHERS_

 The government has provided counsel with thousands of line reports and recordings 

relating to the wire taps in this case. While it has separated those calls among the various 

defendants, counsel is overwhelmed by the sheer number of calls and requests the court 

direct the government to transcribe all of the intercepted communications verbatim, and 

identify which tapes it intends to offer into evidence. 

 Although the Constitution does not expressly require pretrial discovery in criminal 

cases, see e.g., Deviate v. Sills, 422 F.2d 1172, 1181 (3rd Cir.1970), certain constitutional 

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provision have been interpreted as imposing a duty of disclosure upon the government. 

Thus the Due Process clause required the government to disclose material evidence, 

favorable to the defense, even if no specifically requested by the defense. See, United 

States v. Agars, 427 U.S. 97, 107 (1973); Brady v. Maryland, 373 U.S. 83, 87 (1963). 

Whether or not the evidence is admissible under evidentiary rules, “Brady material must 

be disclosed in time for its effective use at trial,” In Re United States (Coppa), 267 F.3d 

132, 142 (2nd Cir. 2001). 

 Similarly, the sixth Amendment contains separate guarantees of effective assistance of 

counsel, confrontation and compulsory process. Counsel is ineffective where he neglects 

to take the necessary steps to investigate and discover important trial materials. See 

generally, People v. Droz, 39 N.Y.2d 457, 462 (1976). And a defendant is deprived of 

his right of confrontation and compulsory process when he is unreasonably precluded 

from obtaining and introducing material evidence. The Supreme Court has repeatedly 

recognized that the guarantees encompassed in various constitutional provisions cannot 

be vindicated without at least some degree of pretrial discovery. And for the same 

reason, the federal statutes and rules set forth procedures enabling the defense to obtain 

specific types of information at various stages of the proceedings. 

 It is in this context that a number of courts have criticized prosecutors who attempt to 

“bury the defendant in paper” by simply making all documents available, without 

organizing them in some more utile manner. For example, in United States v. Turkish,

458 F.Supp. 874 (S.D.N.Y. 1978), the government supplied the defense with 25,000 

pages of documents. Arguing that such discovery amounted to “burying the defendant in 

paper,” the defense asked the government to identify which documents it intended to use 

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at trial. Without significant discussion, the court agreed and granted the application. 458 

F.Supp. at 882. 

 Citing Turkish, the same request was granted in United States v. Poindexter, 727 

F.Supp. 1470 (D.D.C. 1989). In that case, the government also produced thousands of 

pages of documents during discovery. But the court noted that there was “no reason why 

the government could not be more specific as to which documents it currently intends to 

use, and there are may reasons, in fairness to the defendant, the protection of his rights 

and not least rule 16(a)91), why it should be.” 727 F.Supp. at 1484. Accord, United 

States v. Weissman, 1996 WL 751385 (S.D.N.Y. 1996)(“the government does not satisfy 

[its obligation under the rules] by producing masses of documents without designating 

which of them it will seek to introduce at trial.”) See also United States v. Upton, 856 

F.Supp. 727 (E.D.N.Y. 1994), aff’d, 78 F.3d 65 (2nd Cir. 1996); United States v. 

Bortnovsky, 820 F.2d 575 (2nd Cir. 1987.) 

 In United States v. Nahamie, 91 F.Supp.2d 565 (S.D.N.Y. 2000), the court disagreed 

that any foregoing decisions amounted to persuasive precedent that the Federal Rules of 

Criminal Procedure required the government to identify those documents which it 

intended to rely during its case-in-chief; nevertheless, the court concluded that the 

government was obligated to provide more specifics as to the basis for its allegations of 

Medicare fraud. In that case, the government produced over 200,000 pieces of paper in 

hundreds of boxes and files. Relying on Bortnovsky, the court determined the 

government had not met its obligation of providing adequate notice to the defense. 

 Though these cases take different approaches and impose different remedies, each of 

them recognize that, where the volume of documentation is so great that it overwhelms 

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the resources of the defense to review and organize the materials, the disclosure of the 

uncategorized documents may, in effect, be the equivalent of complete non-disclosure. 

Thus, these cases, considered together, stand for the proposition that the government 

cannot evade the rules governing discovery by “burying the defense in paper”; where the 

volume of materials is staggering, the government must make reasonable efforts to 

organize the materials in a comprehensible format. Moreover, these decisions vindicate 

the defendant’s rights under the Due Process clause and the sixth Amendment by 

ensuring that they are provided with usable discovery in sufficient time to prepare for 

trial and present a defense. 

 For all the foregoing reasons, the government should be directed to transcribe all of the 

intercepted communications verbatim, identify those which it intends to offer into 

evidence, and indicate which communications it deems to be either inculpatory or 

exculpatory. 

 POINT III 

 PURSUANT TO THE FEDERAL RULES, THE COURT SHOULD 

 DIRECT THE GOVERNMENT TO PROVIDE THIRTY DAYS IN 

 ADVANCE OF TRIAL: ALL EXHIBITS EXPECTED TO BE 

 OFFERED DURING ITS DIRECT CASE; (2) A LIST OF 

 ANTICIPATED WITNESSES; (3) A LIST OF ALL UNINDICTED 

 COCONSPIRATORS; (4) A SUMMARY OF EXPERT TESTIMONY; 

 AND (5) NOTICE OF ANY UNCHARGED CRIMES AND PRIOR 

 BAD ACTS EVIDENCE IT MAY SEEK TO OFFER INTO 

 EVIDENCE_

 Subdivision (a)(1) of Fed. R. Crim. P. 16 provides that: 

 “Upon request of the defendant, the government shall permit the defendant 

 to inspect and copy or photograph books, papers, documents, 

 photographs, tangible objects, building or places, or copies or 

 portions thereof, which are within the possession, custody, or control o 

 of the government and which are material to the preparation of the 

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 defendant’s defense or are intended for use by the government as evidence in 

 chief at trial, or were obtained from or belong to the defendant.” 

See generally, United States v. Armstrong, 517 U.S. 456, 462-63 (1996); United States v. 

Maniktala, 934 F.2d 25, 28 (2nd cir. 1981). While the government ordinarily may comply 

with this obligation just by providing the defense with access to a collection of 

documents, more specificity may be required where the volume of documents is 

considerable. See, United States v. Marino, 639 F.2d 882, 889 (2nd Cir. 1981). 

 Similarly other rules require the government to give notice of its intent to introduce 

certain evidence in sufficient time in advance of trial or hearing to allow the defendant to 

raise objections. See e.g. Fed. R. Crim P. 807 [residual exception to hearsay rule]; Fed. 

R. Crim. P. 609 [regarding impeachment evidence of convictions]; see also, Fed. R. Crim 

P. 12(d). Most notably, Fed. R. Evid. 404(b) declares 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 [of other crimes, wrongs or acts] it intends to 

introduce at trial.” 

 The underlying policy of these rules if “to reduce surprise and promote early resolution 

on the issue of admissibility.” United States v. Perez-Tosta, 36 F.3d 1552, 1561 (11th Cir. 

1994), see also, United States v. Cruz, 363 F.2d 187, 196 n.2 (2nd Cir. 2004)(regarding 

expert testimony); United States v. Garcia, 291 F.3d 127, 136 (2nd Cir. 2002)(regarding 

404(b) evidence. Where notice is reasonable depends upon a number of factors, such as 

the circumstances in which the prosecution discovered the evidence, the motivations of 

the prosecution, the significance of the evidence and the prejudice suffered by the 

defendant due to the notice not occurring sooner. See generally, United States v. EucedaCase 1:07-cr-00566-GBD Document 44 Filed 05/21/2008 Page 18 of 27
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Hernandez, 768 F.2d 1307, 1313 (11th cir. 1985); United States v. Doe, 860 F.2d 488 (1st

Cir. 1988). 

 In this case the need for early discovery is manifest. As already discussed the 

government has provided in DVD-form hundreds of pages of line sheets, along with 

thousands of hours of tape recordings. None of the conversations have been transcribed 

or indexed in any meaningful way. 

 Accordingly we ask the Court direct the government provide the following items thirty 

days in advance of trial: 1) a list of anticipated witnesses, see, United States v. Giffen, 

379 F.Supp.2d at 345, supra (directing that the list be provided ten days before trial); 

accord, United States v. Lino, 2001 WL 8356, 20 (S.D.N.Y. 2001)(granting request for 

witness list, notwithstanding that no specialized need had been demonstrated); 2) a list of 

anticipated exhibits, and copies of those exhibits, see, United States v. Giffen, 379 

F.supp.2d 337, 344 (S.D.N.Y.2004)(directing that notice be provided 30 days before 

trial); 3) names of unindicted co-conspirators, see, United States v. Nachamie, 91 

F.Supp.2d at 572, supra, United States v. Lino, 2001 WL 8356, 12 (S.D.N.Y. 2001), and 

4) a summary of any anticipated expert testimony. See, 18 U.S.C. 892. 

 In particular, we ask the Court to direct the prompt disclosure of any prior bad acts of 

uncharged crimes the government intends to offer. As noted earlier, Fed. R. Evid. 404(b) 

now explicitly preconditions the admission of prior uncharged crimes or bad acts upon 

“reasonable notice” to the defense. The rule states that, “upon request by the accused, the 

prosecution in a criminal case shall provide reasonable notice in advance of trial, or 

during trial if the court excuses pretrial notice on good cause shown, of the general nature 

of any such evidence it intends to introduce at trial.” Thus, the government has the 

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burden of establishing “good cause” in order to delay notice until trial. Depending on the 

circumstances, courts have held that “reasonable notice” amounts to two weeks before 

trial. See, United States v. Evangelista, 813 F.Supp. 294, 302 (D.N.J. 1993). 

 Considering the complexity of this case, we believe it is reasonable to ask the Court to 

direct the government to provide such notice thirty days before trial. Under ordinary 

circumstance the admissibility of 404(b) evidence tends to be one of the most contentious 

trial issues, as it involves several difficult analytical inquiries. Basically, in order to 

admit uncharged crimes of “bad act” evidence, courts must: 1) determine that the 

evidence is “offered for a proper purpose”; 2) determine that the evidence is “relevant”; 

3) determine that its probative value outweighs its prejudicial effect under Rule 403; and 

4) upon request, the court must charge the jury to consider the evidence only for its 

limited purpose. Huddleston v. United States, 485 U.S. 682, 691-92 (1988). 

 Here, because of the number of defendants charged and the duration of the conspiracy, 

it appears the government will seek to introduce a plethora of evidence of uncharged 

crimes and prior bad acts. By requiring the government to provide notice of 404(b) 

evidence one month before trial, the Court will enable the parties to litigate the 

admissibility of such evidence fully, as well as allow itself ample time to reach thoughtful 

decisions. 

 Accordingly, we ask the Court to direct the disclosure of the aforementioned evidence 

no later than thirty days before trial. 

 POINT IV 

 PURSUANT TO BRADY AND ITS PROGENY THE COURT 

 SHOULD DIRECT THE GOVERNMENT TO DISCLOSE, AS 

 SOON AS IT BECOMES AVAILABLE, ANY MATERIAL 

 THAT IS EITHER EXCULPATORY, USEFUL FOR PURPOSES 

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 OF CROSS-EXAMINATION, OR HELPFUL IN DISCOVERING 

 OTHER INFORMATION_________________________________

 As alluded to earlier, there is no question that the Due Process Clause obligates the 

government to disclose “material evidence.” In Brady v. Maryland, 373 U.S. at 87, 

supra, the Supreme Court declared that: 

 “The suppression by the prosecution of evidence favorable to the accused 

 Upon request violates due process where the evidence is material either 

 To guilt or to punishment, irrespective of the good fair or bad faith of the 

 Prosecution.” See also, United Stares v. Gill, 297 F.3d93, 101 (2nd Cir. 

 2002). 

Since then, the Supreme Court has added that the government has a general duty to 

disclose information with obviously exculpatory value, even when no request has been 

made. United States v. Agurs, 427 U.S. at 103, supra. The government’s duty of 

disclosure is also codified in Rule 16 of the Federal Rules of Criminal Procedure, which 

provides that the government, upon request, must provide, inter alia,documents or 

tangible objects if: 1) they are material to the preparation of the defense, 2) the 

government intends to offer them as evidence in its case in chief; or 3) they were 

obtained from or belong to the defendant. 

 Often the key question in evaluating Brady claims is whether the items sought are 

“material.” Simply put, evidence is “favorable” if it tends to show that the accused is not 

guilty or if it impeaches a government witness. Thus, there is no distinction, for purposes 

of Brady “between impeachment evidence and exculpatory evidence.” United States v. 

Bagley, 473 U.S. 667, 676 (1985). 

 Further, though “one consideration that bears on Brady materiality is admissibility,” it 

is sufficient that the item in question is either partly admissible, could lead to admissible 

evidence or “would be an effective tool in disciplining witnesses during crossCase 1:07-cr-00566-GBD Document 44 Filed 05/21/2008 Page 21 of 27
22

examination by refreshment of recollection or otherwise.” United States v. Gill, 297 F.3d 

at 104, supra. 

 Harmless error analysis is superfluous once it is determined that material evidence has 

been withheld. See, United States v. Ellis, 121 F.3d 908, 916 (4th Cir. 1997). 

 Importantly, “the mandate of Brady extends beyond any particular prosecutor’s actual

knowledge.” People v. Wright, 86 N.Y.2d 591, 598 (1995). “[The individual prosecutor 

has a duty to learn of any favorable evidence known to the others acting on the 

government’s behalf in the case, including the police.” Kyles v. Whitley, 115 S.Ct. at 

1567. 

 Though there is no general duty to disclose Brady material before trial, the Second 

circuit has made clear that “Brady material must be disclosed in time for its effective use 

at trial.” In Re United States v. Coppa, 267 F.3d 132, 142 (2nd Cir. 2001) (emphasis 

added.) To permit the prosecution to decide when Brady material should be disclosed 

would be “to permit the prosecution to control, to some extent, the preparation of a 

defense.” United States v. Crozzoli, 698 F.Supp. 430, 436-37 (E.D.N.Y. 1988). 

 These principles make it incumbent upon the Court to direct the government, 

explicitly, to disclose any Brady material in its possession as soon as it becomes 

available. While prosecutors inevitably protest that they are aware of their obligation 

sunder Brady such pronouncements do not obviate the need for an express order form the 

Court. Moreover, we ask the Court to direct the government to provide certain specific 

items that generally fall within the ambit of Brady material, including: any pea 

agreements, cooperation agreements, proffer agreements or similar arrangements that 

might arguably impact the interest, motive or bias of a prosecution witness; statement of 

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prosecution witnesses that reveal any exculpatory information, as well as any 

inconsistencies with prior statements of those or any other witnesses; and background 

information about the informants impacting their credibility, such as criminal records and 

history of bad acts. 

 POINT V 

 THE COURT SHOULD RULE, IN LIMINE, THAT THE 

 STATEMENTS CONTAINED IN THE EAVESDROPPING 

 APPLICATION LINE SHEETS AND PROGRESS REPORTS 

 ARE ADMISSIBLE AGAINST THE GOVERNMENT, IN THE 

 EVENT THEY CONFLICT WITH THE GOVERNMENT’S 

 TRIAL ALLEGATIONS

 It is fundamental that “statements made by an attorney concerning a matter within his 

employment may be admissible against the party retaining the attorney.” United States v. 

Margiotta, 662 F.2d 131, 142 (2nd Cir. 1981), cert. denied.,461 U.S. 913 (1983). 

Similarly, pleadings may be considered admissions of a part-opponent, admissible against 

a party in the original litigation as well as subsequent litigation. See generally, 

Contractor Utility Sales Co. v. Certain-Teed Products Corp., 638 F.2d 1061, 1084 (7th

Cir. 1981). Accordingly, we submit that that the statements contained in the various 

eavesdropping applications, line sheets and progress reports are potentially admissible 

against the government, in the event that they conflict with the government’s position at 

trial. We ask the Court to consider this issue now because of the likelihood that such a 

conflict will arise and to assist the parties in trial preparation. 

 Fed. R. Evid. 801(d) provides that a statement is not hearsay if it qualifies as an 

“admission by party-opponent,” which it defines, in pertinent part, as either the party’s 

own statement, or: 

 “(B) a statement of which the party has manifested an adoption or belief in the truth, 

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24

Or (C) a statement by a person authorized by the party to make a statement concerning 

the subject, or (D) a statement by the party’s agent, or servant concerning a matter within 

the scope of the agency or employment, made during the existence of the relationship...” 

 The concept of party-admissions in criminal cases was discussed most famously in 

United States v. Mckeon, 738 F.2d 26 (2nd Cir. 1994), where the second circuit condoned 

the judge’s decision to admit portions of defense counsel’s opening statement from a 

prior trial, which had ended in a hung jury. Initially, the Second Circuit agreed that 

statements made by an attorney—including opening statements from a prior trial—may 

be admissible against the party retaining that attorney. 738 F.2d at 30 citing United 

States v. Margiotta, 662 F.2d at 142, supra. The court declared that “prior opening 

statements are not per se inadmissible in criminal cases,” for a contrary holding would 

“invite abuse and sharp practice and would also weaken confidence in the justice system 

itself by denying the function of trials as truth-seeking proceedings.” 738 F.2d at 31. 

 The Second Circuit proclaimed the following rules: 

 “Before permitting such use, the district court must be satisfied that the prior argument 

involves an assertion of fact inconsistent with similar assertions in a subsequent trial. 

Speculations of counsel, advocacy as to the credibility of witnesses, arguments as to 

weaknesses in the prosecution’s case or invitations to a jury to draw certain inferences 

should not be admitted. The inconsistency, moreover, should be clear and of a quality 

which obviates any need for the trier of fact to explore other events at the prior trial. The 

court must further determine that the statements of counsel were such as to be the 

equivalent of testimonial statements by the defendant. The formal relationship of the 

lawyer as agent and the client as principal by itself will rarely suffice to show this since, 

while clients authorize their attorneys to acts on their behalf, considerable delegation is 

normally involved and such delegation tends to drain the evidentiary value from such 

statements. Some participatory role of the client must be evident, either directly or 

inferentially as when the argument is a direct assertion of fact which in all probability had 

to have been confirmed by the defendant.” Id. 

 Many courts have reaffirmed the vitality of McKeon, usually in the context of defense 

attempts to introduce prior statements by prosecutors or other government agents. See, 

United States v. DeLoach, 34 F.3d 1001, 1005 (11th Cir. 1994); United States v. 

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25

Concepcion, 983 F.2d 369, 393 (2nd Cir. 1993). Indeed some courts have concluded that 

there is even greater leeway for introducing prior statements by government agents. 

 For example in United States v. Bakshinian, 65 F.Supp.2d 1104 (C.D. Calif. 1999), the 

question was whether to admit a statement made by a prosecutor in the closing argument 

of a co-defendant’s trial. At the outset, the court agreed that under the Federal Rules, a 

prosecutor is the agent for the federal government, so that statements the prosecutor 

makes may be admissible against the government under the “party-opponent rule.” 65 

F.Supp 2d at 1106; see also, United States v. Salerno, 937 F.2d 797, 811-12 (2nd cir. 

1991). But the court proceeded to find that the various protections discussed in McKeon 

need not apply where the statement in question is attributed to the government, rather 

than the defense. 

 First, the court observed that the defense “is entitled to greater leeway than the 

government because the defense need not prove anything.” 65 F.Supp.2d at 1108. 

further the government is prohibited from taking inconsistent positions between trials. 

“Thus, the fact that the government’s statements in a previous trial might be admitted in a 

later trial will not hinder proper advocacy by the government.” Id. Additionally, when 

the question is whether to admit a prosecutor’s statement, there are no concerns arising 

out of the Fifth Amendment, the right to counsel or attorney-client privilege. Id. For 

these reasons, the court declined to apply the McKeon factors and, instead, elected to 

“consider the admissibility of the government prosecutor’s statement in a manner similar 

to any statement offered pursuant to Rule 801(d)(2)(D).” Id; see also, United States v. 

Amato, 356 F.3d 216, 219-20 (2nd Cir. 2004)(it was unnecessary for the trial court to 

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26

apply the McKeon factors when considering whether to admit a pretrial letter form 

defendant’s prior counsel.) 

 Whatever the precise analysis, these cases unanimously hold that statements by 

prosecutors or government agents may be admitted as “party-admissions” where they 

conflict with the government’s trial position. And courts have applied the same logic 

when considering specifically whether to admit statements made by case agents in 

pretrial affidavits. See, United States v. Warren, 42 F.3d 647, 655 (D.C.Cir. 1994)(court 

abused its discretion in barring an officer’s statement in a criminal complaint. The 

statement was relevant and admissible under Rule 801, as non-hearsay statement offered 

against the government, in which the government had manifested or adopted a belief in 

its truth.) 

 While it would be premature at this point to identify which of these statements might 

conflict with the government’s trial position, we nevertheless ask the Court to rule, in 

limine, that the statement in those documents amount to party-admissions and, 

consequently, are admissible pursuant to Fed.R. Evid. 801. Such a pretrial ruling will 

better enable the parties to prepare for trial. Indeed, a ruling on the admissibility of those 

statements could significantly affect how witnesses may or may not be cross-examined. 

Should the court rule that the statements in the various eavesdropping applications, 

progress reports and line sheets are admissible, then the parties can concentrate, at trial, 

on the subsidiary question of whether the statements otherwise should e admitted 

pursuant to Rule 401 and Rule 403. See, United States v. Bakshinian, 65 F.Supp.2d at 

1110, supra. 

 

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27

 POINT VI 

 

 DEFENDANT REQUESTS PERMISSION TO JOIN IN THE 

 MOTIONS SUBMITTED BY CO-DEFENDANTS TO THE EXTENT 

 THAT THEY ARE RELEVANT AND APPLICABLE, AND FOR ANY 

 OTHER RELIEF THAT THE COURT MAY DEEM JUST AND 

 PROPER

 

 

 CONCLUSION 

 

 THE MOTION SHOULD BE GRANTED IN ALL RESPECTS

Dated: April 11, 2008 

 New York, NY 

 Respectfully submitted, 

 

 _____________________________ 

 TONI MESSINA, ESQ. 

 Attorney for Defendant 

 David Wilkins 

 100 Lafayette Street, Suite 502 

 New York, NY 10013 

 

 

 

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