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October 25, 2005.


The opinion of the court was delivered by: JOHN BATES, District Judge


Pending before the Court are several motions filed by defendants Robert E. Quinn and Michael H. Holland ("defendants") and the government related to the availability and admissibility of evidence in this criminal matter, which involves charges of violating the U.S. trade embargo with Iran. Because the background of this case was outlined at length in the Court's Memorandum Opinion of October 21, 2005, no further rehearsal is required here. For the reasons that follow, the Court will: (1) grant in part and deny in part defendants' motion to compel the government to produce evidence they assert the prosecution is obligated to disclose under Brady v. Maryland, 373 U.S. 83 (1963); (2) defer ruling at this time on defendants' request for a hearing on the admissibility of testimony about alleged co-conspirator statements; (3) deny defendant Quinn's motion to suppress portions of his post-arrest statements to federal agents; (4) defer ruling on the government's motion under Rule 404(b) of the Federal Rules of Evidence to allow testimony about statements allegedly made by the defendants, and defendants' related motion to exclude the government's proffer of defendants' alleged false statements; and (5) deny defendant Holland's motion to exclude statements made to federal agents by Quinn and defendant Quinn's motion to exclude statements made to the agents by Holland, in light of the government's pledge to refrain from eliciting testimony from the agents about statements made by either defendant that tend to implicate the other.


  I. Motion to Compel Government Disclosure of Purported Brady Material

  Defendants have asked this Court to order that the government immediately produce the following evidence, which they assert the prosecution must disclose under Brady and its progeny: (1) all statements made to law enforcement officers by David Tatum, Clark Material Handling Company's ("CMHC") executive vice president for parts; (2) "any information that would tend to mitigate the potential sentences faced by the defendants in the event that one or both are convicted of an offense charged" (more specifically, as defendants stated in a letter to the government, they request information about prior cases involving enforcement of trade embargoes, including information about civil settlements and pleas agreements, see Defs.' Mem. Supp. Mot. to Compel at Ex. D); and (3) "any statements that the government intends to introduce at trial as coconspirator statements under Fed.R.Evid. 801(d)(2)(E)." See Defs.' Mot. to Compel at 1-2.

  As the Brady rule has developed over time, it has come to constitutionally require state and federal prosecutors to disclose to the defense — even without request — any evidence that is in the possession, custody, or control of the government and is favorable to the defendant with respect to questions of guilt (which includes information that is exculpatory, as well as information that might be used to impeach a government witness) or punishment (that is, information that might mitigate the potential sentence). See generally United States v. Tarantino, 846 F.2d 1384, 1416 (D.C. Cir. 1988) (stating the rules of criminal due process articulated in Brady and subsequent cases). The government must disclose Brady information in sufficient time that the defendant is able to "use the favorable material effectively in the preparation and presentation of its case." United States v. Pollack, 534 F.2d 964, 973 (D.C. Cir. 1976). Furthermore, "[t]he existence of a [federal prosecutor's] duty to disclose witness statements at trial pursuant to the Jencks Act, 18 U.S.C. § 3500, does not eviscerate the government's Brady obligation to disclose witness statements well in advance of trial if portions of those statements also fall under Brady." See United States v. Hsia, 24 F.Supp. 2d 14, 29 (D.D.C. 1998).

  The Brady rule does not come into play, however, unless the favorable information is "material" to guilt or punishment. That means the information must be more than simply relevant, but it is not limited to information that is dispositive. The Supreme Court has explained that Brady's materiality standard requires that there be "a reasonable probability" that disclosure of the information to the defense would have led to a different result in the proceeding. See Kyles v. Whitley, 514 U.S. 419, 433-34 (1995). Framed in prospective terms, the materiality prong of Brady requires advance disclosure to defendants of any information that, if presented to a jury, would likely be given substantial weight in deliberations as to guilt or punishment. "It is the government's responsibility in the first instance to determine whether information in its possession" meets this materiality standard. See Hsia, 24 F.Supp. 2d at 30. But, as another judge of this court has said, "courts in this jurisdiction look with disfavor on narrow readings of the government's Brady obligations." Id.

  In this case, the government has agreed to turn over all of its "Jencks material, including witness statements," one week before the start of trial, which now is scheduled to begin as early as November 28, 2005. See Gov't Opp. to Defs.' Mot. to Compel at 5. This would seem to encompass both the first and third items sought in the defendants' motion: all statements by Tatum (who is expected to testify at trial) and the statements of any witness who might testify about out-of-court declarations made by alleged co-conspirators.*fn1 Although the government asserts that none of these statements contain exculpatory material, it does not deny the possibility that defendants will find impeachment information therein. See id. Impeachment material is not as readily identifiable as is potentially exculpatory evidence or sentence-mitigating evidence, but Brady nonetheless brings such information within its ambit. If the government is in possession of any material that would substantially undercut the credibility of one or more of its witnesses, that information is covered by the Brady duty to disclose. See United States v. Bagley, 473 U.S. 667, 676 (1985).

  The government contends that, to the extent material in its possession contains information that could be used by the defense for impeachment of prosecution witnesses, disclosure one week prior to trial fulfills the government's Brady duty. See Gov't Opp. to Defs.' Mot. to Compel at 5. There are no hard-and-fast rules by which courts can decide what constitutes timely pre-trial disclosure of Brady material, and this Court does not have authority to create such a rule. The Court also is mindful that its role is not "to `referee . . . disagreements about materiality and supervise the exchange of information.'" Hsia, 24 F.Supp. 2d at 30 (quoting United States v. McVeigh, 954 F.Supp. 1441, 1451 (D. Colo. 1997)). Nevertheless, in light of the exigencies of this trial — which the parties anticipate could last as long as two weeks — and taking into account that the government has not offered a compelling justification for continuing to withhold witness statements,*fn2 the Court will order the government to transmit to defendants all witness statements that contain potential Brady material two weeks in advance of the start of trial. In practical terms, this means the government will be required to surrender the information just one week earlier than it had planned, but it will ensure that defendants have ample time to review the material for possible use at trial.

  As for the second item sought by defendants — government information about prior cases involving enforcement of trade embargoes and related civil settlements and pleas agreements — the defendants fall short of the requirement that they demonstrate such information would be material to sentencing. Defendants' demand amounts to an exceedingly broad discovery request for government records and data. The government is correct that Brady does not require it to "serve as the defense team's research arm." See Gov't Opp. to Defs.' Mot. to Compel at 6. The Court's conclusion is informed, in part, by its reading of cases dealing with an analogous area of the law — efforts by criminal defendants to obtain information needed to raise a selective-prosecution challenge. In the leading case on the subject, United States v. Armstrong, 571 U.S. 456 (1996), the Supreme Court held that, before a defendant can obtain discovery in aid of his selective-prosecution defense, the defendant first must make a credible showing that the government has treated differently others who were in similar situations. In Armstrong, the Court expressed significant concerns about "divert[ing] prosecutors' resources" by ordering the government to "assemble from its own files documents which might corroborate or refute the defendant's claim." Id. at 468. Before a court should require that to be done, the defense must come forward with some evidence to legitimize its inquiry, the Court said. Although the present situation is not perfectly analogous to that presented in Armstrong, such a credible-showing prerequisite seems equally appropriate in the context of a motion to compel disclosure of alleged Brady material relating to differential treatment, where production of the information would require a not-insignificant expenditure of prosecution resources. Here, the defendants have failed to make a convincing case that their request would turn up any material that would be relevant to, let alone mitigating of, sentencing. Therefore, the Court will deny defendants' second Brady request.

  II. Defense Request for Hearing on Admissibility of Testimony About Alleged Co-conspirator Statements

  In their Brady motion, defendants also request that the Court hold a pre-trial hearing to determine the admissibility of statements by alleged co-conspirators that the government may seek to offer at trial through the testimony of others, as permitted by Fed.R.Evid. 801(d)(2)(E) (excluding from the hearsay rule out-of-court statements made by a co-conspirator during the course and in furtherance of the conspiracy). Such a hearing would be for the purpose of testing whether the prosecution can establish by a preponderance of the evidence — as a precondition of admissibility under Rule 801(d)(2)(E) — that the defendants and the declarant(s) were con-conspirators and that the statements being offered were made during the course and in furtherance of the conspiracy. See Bourjaily v. United States, 483 U.S. 171, 175-76 (1987).

  It is, in some circumstances, advisable to hold a hearing on 801(d)(2)(E) admissibility in advance of trial, but that practice often is impractical and overly burdensome for witnesses — particularly where the alleged conspiracy that forms the basis for admission of the statements also forms the basis for one of the criminal offenses charged.*fn3 Indeed, in cases where defendants face a conspiracy charge, a hearing on the admissibility of co-conspirator statements has the potential to devolve into "a `mini-trial' out of the presence of the jury to determine once and for all whether the government will present sufficient independent evidence of the conspiracy to the jury." See Jackson, 627 F.2d at 1218. Here, the government, in response to the Court's earlier dismissal of the purported conspiracy charge under 50 U.S.C. § 1705(b), has now obtained a superseding indictment charging the defendants under the general federal conspiracy statute at 18 U.S.C. § 371. The Court, therefore, believes that the proper course is to consider the request for a Rule 801(d)(2)(E) admissibility hearing closer to the time when such statements might be offered at trial, when the relevant issues will be better focused and developed than they are now.

  That is not to say that the Court will, at that time, find it necessary to hold a hearing before ruling on 801(d)(2)(E) admissibility. See Jackson, 627 F.2d at 1218 (observing that, where "witnesses are in possession of both hearsay testimony of co-conspirators and evidence that independently tends to prove the existence of the conspiracy," it might be more expeditious to admit the evidence "subject to connection," rather than to hold a separate admissibility hearing, in order to avoid "taking the testimony of such witnesses piecemeal"); United States v. Edelin, 128 F.Supp. 2d 23, 45-46 (D.D.C. 2001) ("A hearing to make an advance determination of conspiracy is unnecessary for the Court's determination by a preponderance of the evidence that a conspiracy existed."). Rather, the ...

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