III. Early Production of Exculpatory, Impeachment and Other Evidentiary Material
A. Brady Material
On September 25, 1992 this court issued an order for discovery and inspection including a provision that the government "Permit defendant's attorney to inspect and copy or photograph any exculpatory material within the purview of Brady v. Maryland." United States v. Evangelista, et. al. Crim. No. 92-503 (D.N.J. September 25, 1992). The government states that, "It has complied with that order and fully intends to continue complying should exculpatory material come into its possession." Government's Brief, at 4. Because no assertion of non-compliance was brought to the court's attention at oral argument on December 11, 1992, this portion of defendants' motion has been rendered moot.
B. Giglio Material
There is no requirement that information in the government's possession that can be used to impeach or challenge the veracity of the government's witnesses be disclosed prior to "the day that the witness testifies." United States v. Higgs, 713 F.2d 39 (3d Cir. 1983), cert. denied, Kemp v. United States, 464 U.S. 1048 (1984). In Higgs the court also held it was an abuse of discretion for the trial court to have ordered production of Giglio material a week prior to trial. Id., at 45. The court recognized that such production is intended solely to enable defendants to adequately cross-examine the government's witnesses, not to assist them with a pre-trial investigation. Id. It should also be noted that any pretrial request for impeachment material poses at least potential questions of increasing pressure upon prospective witnesses. This court has denied similar requests in the past. U.S. v. Eisenberg, 773 F.Supp 662, 684-85 (D.N.J. 1991) (denied advance disclosure of Giglio material where government agreed to provide it the day before the witness testifies).
In this case, the government has offered to voluntarily disclose all Giglio material on the eve of trial, which will be Friday, January 8, 1993. It was explained at oral argument that defendants anticipate some of this material may require examining other documents of public record. Although this pretrial production is clearly not required, in an effort to balance the legitimate interests of all parties and in an effort to avoid interruptions during trial, the Court will order the government to produce all Giglio material three business days prior to trial, which will be Wednesday, January 6, 1993.
C. Jencks Act Material
In United States v. Murphy, 569 F.2d 771, 773 (3d Cir. 1978), the court stated, "The Jencks Act flatly states that disclosure of prior statements by government witnesses may not be compelled 'until said witness has testified on direct examination in the trial of the case.'"11 Outside this circuit, other courts have held that pretrial discovery motions for Jencks Act material are entirely inappropriate. See United States v. White, 750 F.2d 726, 729 (8th Cir. 1984) (government cannot be compelled to disclose Jencks Act material prior to trial); United States v. Peterson, 524 F.2d 167, 175 (4th Cir. 1975); U.S. v. Aguirre-Parra, 763 F.Supp 1208 (S.D.N.Y. 1991) (same).
At oral argument, the government offered to provide defendants with all Jencks Act material on the eve of trial. While the government was clearly under no legal obligation to do so, the court is persuaded that this offer strikes an appropriate balance and will order production of Jencks Act material on Friday, January 8, 1992.
D. Federal Rule of Evidence 404(b) Material
Federal Rule of Evidence 404(b) was amended effective December 1, 1991 to require the prosecution in a criminal case to "provide reasonable notice in advance of trial" of any such evidence it intends to introduce at trial. Cases interpreting the phrase "reasonable notice" are few in number so far.
In U.S. v. Williams, 792 F.Supp 1120, 1133 (S.D.Ind. 1992), the court held that ten days prior to trial would be the reasonable period for advance notice required under the amendment. In U.S. v. Alex, 791 F.Supp 723, 729 (N.D.Ill. 1992), the court held seven days would be reasonable advance notice.
At oral argument the government offered to provide this information to defendants 7 or 10 days in advance of trial. Because the alleged incidents occurred more than five years ago, defendants' preparation to respond to the government's Rule 404(b) material may require more effort than if the incidents had occurred more recently. The court will order the government to provide this information to defendants and the court on Monday, December 28, 1992 (10 business days prior to trial, excluding weekends but not excluding New Year's Day).
E. Witness List and Tape Recording
It is well established that criminal defendants have no right in advance of trial to see a list of witnesses the prosecution will or may call. Government of the Virgin Islands v. Martinez, 847 F.2d 125, 128 (3d Cir. 1988) (government is not required to disclose names of witnesses in non-capital cases, but trial court in its discretion may order such discovery); United States v. White, 750 F.2d 726, 728 (8th Cir. 1984) (defendants have no right to such pretrial discovery, but in its discretion district court may order it); U.S. v. Zolp, 659 F.Supp 692 (D.N.J. 1987); U.S. v. Vastola, 670 F.Supp 1244, 1268 (D.N.J. 1987) (witness lists and statements of non-testifying witnesses not required to be disclosed as Brady material). The court will not order the government to disclose its list of prospective witnesses.
The court need not rule on defendant's request for a copy of the tape recording of a consensually recorded conversation between defendant, Mark Evangelista, and one David Pachucki because the government has provided defendants with a copy which defense counsel stated was audible.
The court will enter an appropriate order in conformance with this opinion.
JOSEPH E. IRENAS
DATED: January 7, 1993