have substantially affected defendants' ability to call certain witnesses, (3) witnesses' memories have faded and (4) certain representations made to counsel for Bart by members of the United States Attorney's office have been ignored, leading to substantial prejudice in proving his defense. However, defendants have not shown how any of the above allegations, if proven, have caused them "actual prejudice." Therefore, defendants' motion to dismiss the indictment for unconstitutional preaccusation delay must be denied.
B. Defendants' Motion for Disclosure of Grand Jury Materials and for a Hearing
Defendants have moved for an evidentiary hearing and for discovery of all grand jury testimony and exhibits. The general rule is that grand jury proceedings are to be kept secret. Fed. R. Crim. P. 6; Dennis v. United States, 384 U.S. 855, 867, 16 L. Ed. 2d 973, 86 S. Ct. 1840 (1966). In the absence of a demonstration by defendants of a "particularized need" to gain access to said materials, the request must be denied. United States v. Proctor & Gamble Co., 356 U.S. 677, 683, 2 L. Ed. 2d 1077, 78 S. Ct. 983 (1958). The "particularized need" cannot be satisfied by mere speculation as to what might be revealed by inspection of grand jury materials. United States v. Mahoney, 495 F. Supp. 1270, 1273 (E.D. Pa. 1980). What is needed, instead, is a demonstration by defendants of a "substantial likelihood of gross or prejudicial irregularities in the conduct of the grand jury." United States v. Budzanoski, 462 F.2d 443, 454 (3d Cir.), cert. denied, 409 U.S. 949, 34 L. Ed. 2d 220, 93 S. Ct. 271 (1972). It is clear that defendants have not met this heavy burden; they have presented to this court little more than "mere speculation" as to what could be discovered by such disclosure. Therefore, their request must be denied.
C. Defendant's Request for Logs Showing Government is in Compliance with Financial Right to Privacy Act
At oral argument on October 14, 1988, counsel for defendant Bart argued that inspection of the logs was necessary in order for her to establish a particularized need for the disclosure of grand jury materials. In the alternative, counsel stated that she would accept a representation from the government that it was in compliance with the Financial Right to Privacy Act. The government, however, appeared reluctant to comply with either request. This court finds defendant's claim to have merit, and, therefore, it is ordering the government to either produce the relevant logs for inspection or to represent that it is in compliance with the Act.
D. The Government's Pretrial Motions
The government has moved (a) for an order precluding defendants from introducing evidence that should have been produced pursuant to the reciprocal discovery obligations of Rule 16(b); (b) for an order precluding defendant Bart from seeking Bruton redaction of his codefendant's statements; and (c) for an order, pursuant to Rule 26.2, requiring that prior statements of defense witnesses be identified and marked by defense counsel for production at or before trial. The government's motions are premature and, thus, must be dismissed.
First, the defendants' reciprocal discovery obligations under Fed. R. Crim. P. 16(b) do not arise unless and until the government has complied with its obligations under Rule 16(a). See Fed R. Crim. P. 16(b). Currently before the court are certain discovery motions of defendants which have left open the issue of the government's compliance with Rule 16(a). The resolution of those motions and compliance with the corresponding orders will trigger the defendants' reciprocal discovery obligations under Rule 16(b). At that point, therefore, the government may request discovery and defendants will be obliged to comply or face possible sanction by the court.
Second, the government has yet to provide defendant Bart with final drafts of statements of his codefendant, Kraselnick. Until that time, defendant Bart has no obligation to seek redaction of Kraselnick's statements to conform with the mandate of Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). It would simply be a waste of judicial resources for the defendant to seek Bruton redaction of a statement the content of which is still "subject to substantial correction" by the government. The government is urged to provide these final drafts as soon as possible so as not to delay the commencement of trial.
Finally, United States v. Nobles, 422 U.S. 225, 45 L. Ed. 2d 141, 95 S. Ct. 2160 (1979), and Fed. R. Crim. P. 26.2 require defendants to produce relevant prior statements of defense witnesses (other than the defendant) once they have testified on direct examination at trial. While it is the preferred practice that such production take place earlier so as not to disrupt the flow of the trial, the defendants cannot be asked to produce such statements until they have decided who will be called as witnesses for the defense. This motion, therefore, is also premature and must be denied. The court does, however, request that all parties have Jencks material pre-marked and identified, where possible, so as to avoid undue delay at trial.
For the reasons stated above, defendants' motions for dismissal of the indictment on multiple grounds and for disclosure of grand jury materials are denied in their entirety. In addition, the pretrial motions of the government are also denied. Finally, the motion by defendants for production of logs showing the United States to be in compliance with the Financial Right to Privacy Act is granted as modified in this opinion.
An appropriate order will be entered.
DATED: December 1, 1988
ORDER - December 1, 1988, Entered
This matter having come before the court on the motion of defendants (1) for dismissal of the indictment on multiple grounds; (2) for disclosure of grand jury materials; (3) for logs showing the United States is in compliance with the Financial Right to Privacy Act; (4) to redact all references in the indictment to "Columbian" persons and corporations; (5) to compel the government to produce Rule 16 and Brady material; and (6) for an order allowing defendants to make further pretrial motions, and on the cross-motions of the government (a) for an order precluding defendants from introducing evidence that should have been produced pursuant to the reciprocal discovery obligations of Rule 16(b); (b) for an order precluding defendant Bart from seeking Bruton redaction of his codefendant's statements; and (c) for an order, pursuant to Rule 26.2, requiring that prior statements of defense witnesses be identified and marked by defense counsel for production at or before trial; and
The court having considered the submissions of the parties and heard arguments of counsel; and
For the reasons set forth in the court's opinion filed this date;
IT IS on this 1st day of December, 1988, hereby
ORDERED that the motions of defendants to redact all references in the indictment to "Columbian" persons and corporations, to compel the government to produce Rule 16 and Brady material and for an order allowing defendants to make further pretrial motions are GRANTED; and
It is FURTHER ORDERED that defendants' motions to dismiss the indictment and for the disclosure of grand jury materials are DENIED; and
It is FURTHER ORDERED that the government produce for defendants' inspection the logs relevant to its compliance with the Financial Right to Privacy Act with respect to these defendants or, in the alternative, represent to defendants that it is in compliance with the Act; and
It is FURTHER ORDERED that the government's motions are DENIED.