The Court believes that the indictment, as supplemented by the voluminous information provided in the record in the two previous trials of Guillermo Novo Sampol ("Guillermo Novo") and Alvin Ross Diaz ("Ross") sufficiently specifies the charges and evidence against defendant. The defendant is adequately on notice of the nature of the charges against him, and can prepare his defense accordingly. To the extent defendant's motion requests information in addition to that already provided or otherwise available, it will be denied.
As the Court understood the parties at oral argument, both defendant and the government appear to have largely resolved their discovery requests by agreement. Where it has not provided information or material, the government has declared that items requested by defendant do not exist. Three issues remain for the Court to resolve. The government denies that it must submit a list of its witnesses' names and addresses, a list of all property seized in this matter (whether or not it will be introduced at trial), and lastly, any statements by government witness Michael Townley regarding his alleged participation in the assassination of Carlos Prats in the Republic of Argentina.
As for the witness list, whether the government must provide one is a matter falling within the Court's sound discretion. See United States v. Madeoy, 652 F. Supp. 371, 375 (D.D.C. 1987). Some of the factors for consideration are the needs of the defense in preparation for trial, possible intimidation of witnesses and the intrinsic reasonableness of the request. See id. (citing cases).
The first and last of these do not apply squarely in defendant's favor. The government's case in this matter has been aired extensively in two previous trials. The government's evidence does not appear to be particularly complex. Defendant's fear of possible new witnesses testifying to out-of-court identification, according to the government at oral argument, is unfounded. Lastly, the prospect of witness intimidation is not so remote as to tip the scales in defendant's favor. The government has proffered that its new witnesses maintain a genuine fear of retaliation. The Court will deny defendant's request for the list; it nonetheless reminds the government of its promise to invite its witnesses in good faith to speak with defendant's counsel prior to trial.
Next, pursuant to Federal Rule of Criminal Procedure 16, defendant asks that the government "provide a list of all property seized in this matter whether or not it is to be introduced at trial." Rule 16(a)(1)(C) provides for defense inspection and copying of "books papers, documents, photographs, tangible objects, buildings or places" in the government's possession or control, and which are material to the preparation of the defendant's defense, will be used in the government's case-in-chief, or were obtained from or belonged to defendant.
The government is well aware of its obligations under Rule 16 and Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and the Court assumes that it has complied fully with the mandates imposed on it. Beyond this, defendant has made no showing of materiality as to any specific item or items of property and there is no basis for granting his blanket request. As it is framed, the motion for a list of property seized by the government will be denied.
Lastly, defendant wishes to cross-examine the government's primary witness, Michael Townley, regarding his alleged participation in the assassination in Argentina of Carlos Prats, a Chilean exile. At the second trial of Guillermo Novo and Ross, the Court ruled that those defendants had not established an adequate foundation that Townley had in fact participated, and barred cross-examination on the subject. The Court of Appeals affirmed. See United States v. Sampol, 204 U.S. App. D.C. 349, 636 F.2d 621, 656 n. 21 (1980). Because of statements in a book authored by a former attorney for the government in this case, defendant now asserts that an adequate foundation exists to consider the killing relevant to Townley's credibility and the benefits he derives from his agreement with the government.
This new material adds little to the analysis, and the Court of Appeals decision in Sampol supports a finding once again that the evidence of Townley's involvement in the Prats incident is tenuous. It also does not appear that the events are relevant. In addition to the evidence found to be lacking by the trial court and the Court of Appeals earlier, defendant adds thirdhand hearsay, portions of a book containing accounts by the authors about assertions Townley and others allegedly made about Townley's participation. The Court has no basis to assess the credibility of the primary or secondary declarants' statements. This material does not persuade the Court that an adequate foundation for Townley's involvement exists.
Moreover, this evidence is not admissible under Rule 608(b) to undermine Townley's credibility. "Aside from the tenuous link between the alleged crimes and Townley's capacity for truthfulness, see United States v. Young, 567 F.2d 799, 803 (8th Cir. 1977), cert. denied, 434 U.S. 1079, 55 L. Ed. 2d 786, 98 S. Ct. 1273, this evidence would [be] plainly cumulative" given that Townley will confess his role in the Letelier slaying. Sampol, 204 U.S. App. D.C. 349, 636 F.2d at 657 n. 21. The evidence also fails to assist the defense in exploiting the government's plea agreement with Townley. "It is somewhat misleading to characterize the provision [of the agreement] on Townley's foreign activities as a benefit conferred by the government. Because the government generally would have no jurisdiction to investigate Townley's alleged criminal activity around the world, it gave up nothing by declining to seek information about such activities." Id. at 660.
Defendant has not argued that any other circumstance has changed since the Court of Appeals' ruling and has not otherwise justified a departure from it by this Court. Consequently, defendant's request for discovery into, and for permission to cross-examine about, the Prats slaying will be denied.
II. Defendant's Motion for Additional Peremptory Challenges
In support of his motion for an additional number of peremptory challenges, defendant cites Federal Rule of Criminal Procedure 24(b). The Rule clearly does not apply, there being a single defendant in this case. Defendant is correct that the granting of additional challenges lies in the discretion of the Court, discretion which the Court exercises to deny the request. Defendant's claims of unusual publicity and the potential unfavorable portrayal of the CIA are unpersuasive. A great deal of time has passed since the events charged took place. To the extent the problems identified by defendant remain, they can easily be addressed by an adequately sized pool of potential jurors. This motion will be denied.
III. Defendant's Motion In Limine Regarding Rule 404(b) Evidence
In order that he might testify without threat of unfairly prejudicial cross-examination about his prior bad acts, defendant moves for a pretrial hearing and ruling on the admissibility of such evidence. Federal Rule of Evidence 404 provides that:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Fed. R. Ev. 404(b). In addition, however, Rule 403 permits the exclusion of evidence where "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . ." Fed. R. Ev. 403. Defendant submits that the latter rule will likely apply to evidence of other crimes the government alleges that he has committed.
The government's response includes a proffer of facts about defendant's relationship with alleged co-conspirator Michael Townley, Townley's dealings with DINA (Chilean Intelligence) and the Cuban Nationalist Movement ("CNM"), as well as the previous use of materials and equipment by that group in attempting to carry out an assassination plan in Mexico similar to the homicide charged in this case. This proffer satisfies the Court that the evidence should be admitted, at least with respect to the government's case-in-chief. It simply cannot be said that the prejudice of this evidence outweighs its probative value, let alone in a "substantial" way.
The evidence in the government's proffer is highly probative of intent, plan, preparation, and motive. The Court of Appeals agreed with this analysis with respect to defendant's alleged co-conspirators. See United States v. Sampol, 204 U.S. App. D.C. 349, 636 F.2d 621, 659 (1980) (evidence of Mexico mission admissible under Rule 404(b) since it "illustrated why DINA solicited the help of the Cuban Group, and showed how the relationship between Michael Townley and the CNM began and matured."); see also United States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985) (evidence of other acts necessary to explain context, motive or planning of crime is admissible if "linked in time and circumstance with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.").
The Court will reserve ruling on the permissible scope of any cross-examination of defendant, as it is not possible at this juncture to determine what will be made relevant by his direct testimony. If necessary, the Court will hold a hearing during trial, prior to cross-examination, to decide this issue.
IV. Defendant's Motion for an Order Granting Defendant the Right to Depose Certain Witnesses in Chile and for the Court to Issue a Request for the Assistance of the Judiciary of Chile
Defendant seeks leave to depose three individuals in Chile, Manuel Contreras, Pedro Espinoza and Lilliana Walker. Contreras and Espinoza are co-defendants who have been fugitives since the indictment was handed up. Walker is an unindicted co-conspirator. Defendant proffers that "the testimony of these three witnesses will show that DINA and the Chilean government planned and directed the murder of Letelier and that DINA had the resources and its own agents in the United States to carry out the killing of Letelier." Defendant also believes that the deposition testimony will contradict the probable testimony of Townley.
Federal Rule of Criminal Procedure 15(a) governs defendant's motion. It provides as follows:
Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may . . . order that testimony of such witness be taken by deposition . . . .
Rule 15(d)(1) continues, however, that "in no event shall a deposition be taken of a party defendant without that defendant's consent . . . ."
The burden rests with the movant to show the necessity of preserving a prospective witnesses' testimony by a deposition. See United States v. Adcock, 558 F.2d 397, 406 (8th Cir.), cert. denied, 434 U.S. 921, 54 L. Ed. 2d 277, 98 S. Ct. 395 (1977). Materiality of the testimony and the unavailability of the witness are the critical factors. United States v. Ismaili, 828 F.2d 153, 159 (3d Cir. 1987), cert. denied, 485 U.S. 935, 99 L. Ed. 2d 271, 108 S. Ct. 1110 (1988). In the criminal context, a defendant typically demonstrates the "exceptional circumstances" necessary for success on a Rule 15(a) motion by some preliminary showing that the testimony will exculpate him. See Guam v. Ngirangas, 806 F.2d 895, 897 (9th Cir. 1986); United States v. Wilson, 601 F.2d 95, 97 (3d Cir. 1979); United States v. Ontiveros-Lucero, 621 F. Supp. 1037, 1038 (W.D. Tex. 1985).
Defendant here has not carried his burden of showing materiality as to any of the three proposed deponents, and failed to show the unavailability of Walker. Defendant has provided no specific information about the probable testimony these witnesses could offer, other than unsubstantiated speculation that it will exculpate him. In fact, the government proffers that Contreras and Espinoza have consistently denied their participation in the Letelier bombing. With regard to Walker, she has not been indicted in this case and apparently faces no other criminal charges in the United States. There is no evidence whatsoever that Walker is unable or unwilling to attend trial in the United States. See generally Ismaili, 828 F.2d at 160.
In any event, Contreras and Espinoza are co-defendants, and defendant has not shown that they consent to the giving of testimony. See, e.g., United States v. Cassese, 622 F.2d 26, 28-29 (2d Cir. 1980); Ontiveros-Lucero, 621 F. Supp. at 1039. Clearly they maintain a Fifth Amendment privilege in the United States. The Rule requires consent, and defendant has not provided it. On this ground alone, defendant's motion must be denied.
V. Government's Motion In Limine to Exclude Evidence or Questioning Relating to the Acquittals of Guillermo Novo and Ross
In 1981, Guillermo Novo and Alvin Ross Diaz were acquitted in this Court of counts one through five
of the indictment on which defendant is now to be tried. The government asks the Court to bar any reference by defendant to these verdicts. The government argues that evidence of the earlier acquittals is both inadmissible hearsay and irrelevant.
Defendant counters that the government intends to offer evidence of his flight and fugitivity. He argues that if the Court allows this evidence to go to the jury,
he should be permitted to demonstrate his state of mind while a fugitive, and this showing necessarily includes his knowledge that his alleged co-conspirators were found not guilty of the charges he himself faced. The Court agrees that defendant's knowledge of the acquittals is relevant to show his state of mind during a portion of his fugitivity -- evidence the jury may consider. Also, the acquittals' status as hearsay is overcome by the state of mind exception to the hearsay rule. See Fed. R. Ev. 803(3).
Finally, the Court does not believe that the probative value of this evidence is substantially outweighed by the possibility of unfair prejudice to the government. Indeed, what prejudice exists can be minimized by appropriate jury instructions. The Court's discretion on this point is broad, see United States v. Irvin, 787 F.2d 1506, 1517 (11th Cir. 1987), and it holds that defendant should be entitled to challenge the government on the issue of flight with evidence that he was aware of Guillermo Novo's and Ross' acquittal.
VI. Government's Motion In Limine to Exclude Evidence or Questioning Relating to the Townley-Etchepare Telephone Conversation
In the midst of the first trial of Guillermo Novo, Ross and Ignacio Novo Sampol, government witness Townley placed a telephone call from the office of an Assistant United States Attorney to a friend in Chile, Gustavo Etchepare. The call was secretly recorded by unknown individuals, and a transcript of the conversation indicates that Townley made numerous, at times inadvisable, statements about the trial judge, the jury, witnesses and counsel. The government moves preliminarily to exclude any evidence about, or reference to this telephone call.
The Court of Appeals reversed the convictions of the other defendants partially because the defense had been denied an opportunity to cross-examine Townley about the call. According to the court, the defense had a reasonable basis for believing that Townley had made statements during that conversation bearing on his credibility and which could lead to the discovery of exculpatory evidence. Sampol, 636 F.2d at 662.
Because the court barred all inquiry into the call, we have no way of knowing what an examination of Townley in this area would have revealed. At the retrial, appellants should be permitted to use the defense transcript in order to refresh the recollection of the witness or to impeach him or for any other proper purpose. Townley will be free to admit or deny that he made particular statements to Etchepare, and he will be able to offer such explanation as may be appropriate.
Id. Nevertheless, in order for the recording or transcript themselves to come into evidence, the defense had first to establish its authenticity. Id. At the defendants' retrial, the trial court ruled that Townley could be cross-examined about the conversation, except with regard to his disparaging remarks about the Judge and jury. The defense was permitted to inquire about Townley's proposal that unnamed individuals threaten the District Judge to hasten his withdrawal from the case. No exculpatory evidence emerged from cross-examination.
The Court of Appeals' opinion is instructive, but as that court itself admits, it had no way of knowing what cross-examination would produce. This Court is presented with different circumstances. The earlier defendants were unable to elicit any testimony from Townley about the call which tended to show their innocence or lead to exculpatory evidence. The Court will not permit inquiry about the conversation as a search for evidence tending to prove innocence.
Nevertheless, the Court of Appeals believed that the transcript provides a reasonable basis to believe that Townley made statements bearing on his credibility as a witness. See Sampol, 636 F.2d at 662. The government urges exclusion on the ground that reference to the call will be excessively prejudicial. The court above, and the trial court on remand apparently thought otherwise, and this Court is bound by that judgment. The Court will permit inquiry by defendant on cross-examination of Townley whether he made the telephone call and, assuming he again admits doing so, into the areas permitted by the trial court on retrial of Guillermo Novo and Ross, viz., those sections of the transcript that do not contain disparaging remarks about the Judge or jury, but including the remarks at page 3 of the transcript, lines 20-28. As noted by the Court of Appeals, Townley may offer an explanation of his remarks. The government's motion in limine will be denied insofar as it seeks to prevent this inquiry.
As for admission of the recording or transcript itself, the Court agrees with the government that they cannot possibly meet the test of authenticity. Townley has stated that the tape is incomplete, and his recollection is bolstered by the Federal Bureau of Investigation report indicating that the recording is not an original and has undergone some editing. The Court is persuaded that a reasonable probability exists that the recording, and therefore the transcript as well, are incomplete and inaccurate. See United States v. Haldeman, 181 U.S. App. D.C. 254, 559 F.2d 31, 107 (1976), cert. denied, 431 U.S. 933, 53 L. Ed. 2d 250, 97 S. Ct. 2641 (1977), quoted in United States v. Slade, 200 U.S. App. D.C. 240, 627 F.2d 293, 301 (1980), cert. denied, 449 U.S. 1034, 66 L. Ed. 2d 495, 101 S. Ct. 608 (1980). They are simply untrustworthy, and will be excluded from evidence.
VII. Government's Motion for Admission of Statements and Testimony of Deceased Witness Jose Barral
An individual named Jose Barral stated on several occasions that in September 1976, he had two meetings with defendant and at one of these meetings, he provided a blasting cap to defendant. Barral made these statements to the F.B.I., to the grand jury which indicted defendant, and at both trials of defendant's alleged co-conspirators. Barral is now dead. The government asks the Court to admit his prior statements, though hearsay, into evidence.
To succeed, the government must identify an exception to the rule against hearsay, as well as hurdle the Confrontation Clause of the Constitution.
The government relies on three subsection of Federal Rule of Evidence 804(b). First, Rule 804(b)(1) allows
testimony given as a witness at another hearing of the same or a different proceeding . . . if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect testimony.
Second, Rule 804(b)(3) admits statements which when made, were
so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability . . . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.