UNITED STATES DISTRICT COURT

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------X UNITED STATES OF AMERICA 05-cr-774 (KW) -against- MATTHEW IANNIELLO et.al., Defendants ------------------------------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF THE PRETRIAL MOTIONS OF JULIUS BERNSTEIN This memorandum respectfully addresses the Pretrial requests of defendant Julius Bernstein. Specifically, defendant Bernstein requests the following relief: (1) A Bill of Particulars; (2) Reservation of Rights to fully brief the 5th Amendment Rights of Bernstein vs. the alleged prejudice of Defendant Ianniello's 6th Amendment Right raised in Defendant Ianniello's motion. (3) Brady-Giglio discovery; (4) Notice of the Government's intention to admit evidence under Fed. R. Evid. 404(b); (5) Notice of the Government's intention to offer expert testimony under Fed. R.Evid. 702 and related relief; (6) Discovery of the identity of confidential informants and the opportunity to ask the informants in open court whether they will be interviewed by defense counsel; (7) Leave to later file a Casamento /Rule 14 motion; (8) Leave to file additional motions after review of documents and cassette recordings referred to in the Government's correspondence of June 19, 2006. (9) Leave to adopt the motions of cocounsel; (10) Such other further and different relief as this Court may find just, equitable and proper. Specifically, Mr. Bernstein is charged in nine Counts of the Indictment. Count One charges a violation of RICO, 18 USC §1962 (c), with racketeering acts charging Mr. Bernstein with Obstruction of Justice and Extortion and Labor Racketeering. Count Two charges RICO conspiracy, 18 USC §1962 (d). Count Three charges a conspiracy to obstruct justice under 18 USC § 1512(k) and alleging false statements made to a grand jury relating to the investigation of Amalgamated Transit Union. Count Four charges obstruction of justice under 18 USC §1512 (c) relating to the same investigation. Count Six Charges false statements to government officials under 18 USC §1001 relating to the same investigation. Count Seven charges a Hobbs Act conspiracy to extort a medical center in violation of 18 USC §1951. Count Eight alleges extortion relating to the medical center under 18 USC §1951. Count Nine alleges conspiracy under 18 USC § 371 to influence the employee benefit plan of Amalgamated Transit Union. Count 10 alleges the influence over the employee benefit plan of Amalgamated Transit Union in violation of 18 USC §1954. In the interests of minimizing what can be reasonably anticipated to be a blizzard of papers, and to avoid repetition of argument, each argument shall be addressed briefly in the order requested in the Notice of Motion. POINT 1 REQUEST FOR A BILL OF PARTICULARS A bill of particulars must be granted 'where the charges of the indictment are so general that that they do not advise the defendant of the specific acts of which he is accused.' United States v. Walsh, 194 F.3d 37,47 (quoting United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990) (internal quotation marks omitted). 'Essentially, a bill of particulars should issue to enable a defendant "to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense." United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987), quoted with approval in United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988). The rule governing issuance of a bill of particulars, F.R.Crim.P. 7(f), was amended in 1966 to eliminate any "for cause" element of a request for a bill and "to encourage a more liberal attitude by the courts toward bills of particulars." See Advisory Committee Note to 1966 Amendment to Rule 7(f); United States v. Rosa, 891 F.2d 1063, 1066 (3d Cir. 1989).' United States of America v. Usama Bin Laden, et als., 2000 WL 34528558 (S.D.N.Y.). Whether a bill of particulars should be provided at all, and, if ordered provided, its specificity are matters within the sound discretion of the court. Wong Tai v. United States, 273 U.S. 77, 82 (1927); United States v. Torres, 901 F.2d 205, 234 (2d Cir.), cert. denied, 498 U.S. 906 (1990) (citing United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984). The purpose of a bill of particulars is to inform defendants of the nature of the charges against them so that they can (1) prepare their defense; (2) avoid prejudicial surprise at trial; and (3) plead double jeopardy as a bar to any further prosecution for the same offense. Wong Tai, 273 U.S. at 82; Torres, 901 F.2d at 233-34; United States v. Conesa, 899 F. Supp. 172, 176 (S.D.N.Y. 1995). A bill of particulars amplifies the indictment by providing missing or additional information necessary for effective preparation for trial. United States v. Fletcher, 74 F.3d 49, 53 (4th Cir. 1996). A bill of particulars is particularly appropriate where, although the indictment contains general allegations necessary to plead the charged counts, it does not provide specifics as to the indictment's charges. See United States v. Loayza, 107 F.3d 257, 261 (4th Cir. 1997)(a bill of particulars "is available to add specifics beyond those required for the indictment to pass constitutional muster.") In such cases, provision of detailed information must be made by the government, especially when that information is crucial to the creation of a defense against the charges. Id. An important consideration in deciding whether particulars should be granted is the sufficiency of the information already available to defendants prior to trial. Conesa, 899 F. Supp. at 176; United States v. Young & Rubicam Inc., 741 F. Supp. 334, 349 (D. Conn. 1990). "Generally, if the information sought by defendant is provided in the indictment or in some acceptable alternate form, no bill of particulars is required." United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987) (citing United States v. Matlock, 675 F.2d 981, 986 (8th Cir. 1982) and United States v. Society of Independent Gasoline Marketers of America, 624 F.2d 461, 466 (4th Cir. 1979)). When considering whether to order a bill of particulars "[t]he important question is whether the information sought is necessary, not whether it is helpful." United States v. LaMorte, 744 F. Supp. 573, 577 (S.D.N.Y. 1990) (citing United States v. Guerrerio, 670 F. Supp. 1215, 1224 (S.D.N.Y. 1987) and United States v. Payden, 613 F. Supp. 800, 816-18 (S.D.N.Y. 1985.) The defendant respectfully refers to United States v. Davidoff, 845 F.2d 1151 (2d Cir. 1988) and United States v. Bortnovsky, supra,. These two cases are related to the request herein for two basic reasons. First, the Government had provided no particulars. Second, the courts found that defendants had not been sufficiently informed of the crimes charged. In Davidoff, a RICO case, the Government alleged extortion as a predicate act and then charged four acts of extortion as further substantive crimes. The discovery consisted of the Government supplying the defendant a huge quantity of documents. At trial, the Government proved extortionate acts, under the RICO count, apart from those charged in the substantive counts, which had not been previously disclosed. Similarly in Bortnovsky, the Government in response to a discovery request supplied the defendant a large quantity of undifferentiated documents relating to insurance claims submitted by the defendant. At trial the Government submitted proof of falsity with respect to a limited number of such claims. The defendant had been completely misled about the Government's case. Accordingly and pursuant to Fed. R. Crim. P. 7(f), Defendant Bernstein requests production of the following Bill of Particulars: Count One, Racketeering Act One (and Counts Three and Four and Six) ' As to Each Defendant 1. Provide each statement. 2. Provide the name of the defendant who made such statement. 3. Provide where the statement was made. 4. Provide when the statement was made (Exact date and time). 5. Provide the name of the person and what agency or governmental division to whom the statement is alleged to have been made. 6. Provide the name of each person stated in the indictment as 'known'. Count One, Racketeering Act Two (and Counts Seven and Eight) 1. Provide the name of the medical center referred to in the indictment. 2. Provide the address of the medical center referred to in the indictment. 3. Provide the name of the party who made each payment. 4. Provide the date each payment was made. 5. Provide the time each payment was made. 6. Provide the place (address where) each payment was made. 7. Provide the amount of each payment. 8. Provide the form of each payment. 9. Provide the name of the person to which each and every payment was made. 10. Provide the name of each person stated in the indictment as 'known' Count One, Racketeering Act Three (and Counts Nine and Ten) 1. Provide the name of the medical center referred to in the indictment. 2. Provide the address of the medical center referred to in the indictment. 3. Provide the name of the party who made each payment. 4. Provide the date each payment was made. 5. Provide the time each payment was made. 6. Provide the place (address where) each payment was made. 7. Provide the amount of each payment. 8. Provide the form of each payment. 9. Provide the name of the person to which each and every payment was made. 10. Provide the name of each person stated in the indictment as 'known' POINT II DEFENDANT BERNSTEIN SHOULD BE SEVERED DUE TO HIS DIRE MEDICAL CONDITION AND NOT HAVE HIS FIFTH AMENDMANT RIGHT COMPROMISED BY SEVERELY PREJUDICAL ARGUMENTS. While certainly a quandary, defendant Ianniello's rights are not 'destroyed' by defendant Bernstein's anticipated assertion of his Fifth Amendment rights. Rather, any comment to the jury regarding Defendant Bernstein's right not to testify, destroys any presumption of innocence on Bernstein. Defendant Ianniello seeks severance from Defendant Bernstein which, of course, defendant Bernstein also requests. In the event that the Court should decide not to sever these two defendants, Defendant Bernstein respectfully requests the opportunity to fully brief the issues raised by Ianiello. In any event, defendant Bernstein is restricted because he has dialysis three days per week, Monday, Wednesday and Friday. He must be present to assist in his defense at trial. While the defendant is cognizant of the Court's strict adherence to the trial calendar, Mr. Bernstein must be severed if the entire defense is to move forward and he is to maintain his rigorous medical treatment. POINT III THE COURT SHOULD COMPEL THE GOVERNMENT TO PROVIDE BRADY/GIGLIO MATERIAL TO ALLOW SUFFICIENT PREPARATION FOR THE DEFENSE Under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the government is required to disclose all evidence that is favorable to defendant and "material either to guilt or to punishment." Id. at 87, 83 S.Ct. at 1196. The materiality of evidence depends on its importance to the case: "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). Particularly relevant to the instant Motion is the Supreme Court's abandonment of the distinction between "specific request" and "general-or no request" situations in Bagley. See id. at 678-82, 105 S.Ct. at 3381-84. Regardless of whether or not the information is requested by the defense, suppression by the government of favorable material evidence is constitutional error, "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." See Kyles v. Whitley, 514 U.S. 419, 430-32, 115 S.Ct. 1555, 1564, 131 L.Ed.2d 490 (1995) (quoting Bagley, 473 U.S. at 682, 105 S.Ct. at 3383). Therefore, the government's responsibility to produce Brady materials is neither heightened nor relaxed by the presence or absence of a written Brady request or a motion to compel. The government has an ongoing burden to provide material exculpatory evidence whenever it discovers that it has such information in its possession. Finally, the due process concerns underlying Brady are present "irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. at 1196. This request includes documents and any other materials that contain information relevant to the impeachment of government witnesses, Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); United States v. White, 116 F.3d 903, 918 (D.C.Cir.1997) and prior inconsistent statements by government witnesses who will likely testify at trial. See United States v. Cuffie, 80 F.3d 514, 517 (D.C.Cir.1996) (quoting United States v. Smith, 77 F.3d 511, 515(D.C.Cir.1996)) (Evidence is material if "the undisclosed information could have substantially affected the efforts of defense counsel to impeach the witness, thereby calling into question the fairness of the ultimate verdict."). Due process requires that the government not suppress evidence favorable to the accused or discrediting to its own case and, upon request, that it disclose to the defense all such information. Brady v. Maryland, 373 U.S. 83 (1963); United States v. Agurs, 427 U.S. 97 (1976); United States v. Bagley, 473 U.S. 677 (1985). See also, Mooney v. Holohun, 294 U.S. 103 (1935) and Pyle v. Kansas, 317 U.S. 213 (1942). This requirement of candor by the sovereign encompasses information which bears upon the credibility of its witnesses as well as matters more directly material to guilt or innocence. Napue v. Illinois, 360 U.S. 264 (1959); Giglio v. United States, 405 U.S. 150 (1972). See generally, Williams v. Dutton, 400 F.2d (5th Cir. 1968), cert. denied, 393 U.S. 1105 (1969). As stated by the Supreme Court in Napue v. Illinois, supra, 360 U.S. at 269: The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend. In United States v. Bagley, 473 U.S. 667 (1985), the Supreme Court reversed and remanded to the Ninth Circuit a decision where that court reversed the trial court's sustaining of a conviction. The decision dealt with the question of "materiality" of specific Brady requests. The court held that impeachment evidence is material if there is a "reasonable probability" that had the defendant been provided with the evidence, that conviction would not have been obtained. The court proceeded to define a reasonable probability as "a probability sufficient to undermine confidence in the outcome." That, of course, is a situation in which an appellate court is looking back at a record. The court points out the problem of looking back at a conviction: The reviewing court should assess that possibility that such effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense in the trial would have taken had the defense not been misled by the prosecutor's incomplete response. 473 U.S. at 683. This Motion is made pretrial and not post conviction. This court should note the Supreme Court's warning that "The prosecutor's failure to respond fully to a Brady request may impair the adversary process. . . (by misleading the defense). . .[T]he defense might abandon lines of independent investigation, defenses or trial strategies that otherwise "might have pursued" had the prosecution responded to specific Brady requests. It is submitted that the specific Brady requests in this motion will be material to the outcome because they relate to information which will disclose motive, interest or bias as well as the ability of the witnesses to remember; and, further, shed light on the witnesses' moral propensities which might include a propensity toward perjury. Disclosure to the Defendant of information to enable him to impeach a witness' credibility must be timed to enable effective preparation for trial. See, e.g., United States v. Polisi, 416 F.2d 573,578 (2d Cir. 1969); Scurr v. Niccum, 620 F.2d 186,191 & n.3 (8th Cir. 1980); see also United States v. Kaplan, 554 F.2d 577,580 (3d Cir. 1977); United States v. Baxter, 492 F.2d 150,173-84 (9th Cir. 1973); cert. denied, 41 7 U.S. 940 (1974); cf. United States v. Opager, 589 F.2d 799,804-5 (5th Cir. 1979) (noting the crucial importance of accused or pretrial interviewing and /or investigation of potential witnesses); United States v. Pollack, 534 F.2d 964,973, 175 U.S. App. D.C. 277, cert. denied, 429 U.S. 924 (1976) (Lumbard, J., sitting by designation) (stating that "[d]isclosure by the government must be made at such a time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case, even if satisfaction of this criterion requires pre-trial disclosure"). See, e.g., United States v. Elmore, 423 F.2d 775,779 (4th Cir. 1979); United States v. Deutsch, 373 F. Supp. 289,290-91 (S.D.N.Y. 1974). See also, Gorham v. Wainwright, 588 F.2d 178,180 (5th Cir. 1979); Grant v. Alldredge, 498 F.2d 376, 381-82 & n.5 (2d Cir. 1974); Clay v. Black, 479 F.2d 319, 320 (6th Cir. 1973) per curiam)). A. Specific Requests 1. Any and all records and information revealing prior misdemeanor or felony convictions or guilty verdicts, court martial adjudications, or other adjudications attributed to each prospective witness to be called by the government including, but not limited to, relevant FBI "rap" sheets, state 'rap sheets' and local record check. 2. Any and all records and information revealing prior misconduct or bad acts attributed to any witness the government intends to call. The Defendant further specifically requests any and all impeaching information as a result of the testimony and debriefings of any and all witnesses. The debriefings or testimony referred by the other witnesses who may be called would have been conducted by agents of the agency or agencies involved in this investigation, debriefing or debriefings by the federal, state, county or local investigators, which the government after fair inquiry determines said witness or witnesses have testified, or been debriefed and any and all other places they may have testified, either for the local, state or federal authorities. 3. Any and all consideration or promises of consideration given to or on behalf of any witnesses or expected or hoped for the witnesses in connection with or concerning the investigation of these cases, or any general promises relating to any cooperation with the local, state, federal or military prosecutors or authorities which control or apply to the witness' cooperation and/or testimony in these cases. a. The Defendant defines "consideration" as anything, whether bargained for or not, which could be of value or use to a witness or to persons of concern to the witness, including, but not limited to, formal or informal, direct or indirect: leniency, favorable treatment or recommendations or other assistance with respect to any pending or potential criminal, parole, probation, pardon, clemency, civil, tax, tax court, court of claims, administrative, department of social services, or other dispute with the government or any other party; criminal, civil or tax immunity grants; relief from forfeiture, payments of money, rewards or fees, witness fees and special witness fees, provision of food, clothing, shelter, transportation, legal services, or other benefits; placement in a "witness protection program"; informer status of the witness; and anything else which arguably could reveal an interest, motive or bias in the witness in favor of the government or against the Defendant or act as an inducement to testify or for testimony. See, United States v. Bagley, 473 U.S. 667,676 (1985). b. The Defendant requests the court to direct the prosecutor to make affirmative inquiry of all law enforcement officers, counselors, or department of social services case workers who are involved in the investigation of this case or cases, and to provide defense counsel with the information one week prior to trial. 4. Information concerning any prior inconsistent statement made by the witness including any information offered by witness who ultimately proved to be untrue or even arguably untrue. That this information be gathered and collected by the prosecution prior to trial, and delivered to counsel for the defense before trial, and in no event later than when the witness is turned over to the Defendant for cross-examination at trial or at any pretrial hearing at which the witness testifies. 5. The existence of any statements made by any witness which were against that witness's penal or financial interest. That this information be gathered and collected by the government prior to trial, and delivered to counsel for the defense at trial, and in no event later than when the witness is turned over to the Defendant for cross-examination at trial or at any pretrial hearing at which the witness testifies. 6. Any and all threats, expressed or implied, direct or indirect, or other coercion made or directed against the witness or person of concern to the witness; any and all criminal prosecutions, investigations, potential prosecutions or department of social services (DSS) investigation pending or which could be brought against said person; any and all probationary, parole, deferred prosecution or custodial status of them; and any and all civil, tax, tax court, court of claims administrative, or other pending or potential legal disputes or transactions of them with the government or over which the government has real, apparent or perceived influence. The Defendant requests an order directing the disclosure of this information to counsel for the defendant no later than one week prior to trial. 7. The existence and identification of each occasion which the witness has testified before any court, grand jury or other tribunal or body, or has otherwise officially narrated, in relation to the Defendant, or in relation to the investigation or facts of this case or cases. The Defendant further requests an order requiring the government to collect and gather this information and have it available in court, and to be prepared to give it to defense counsel at the conclusion of the witness' testimony on direct examination at trial, or in any hearing in which the witness testifies at the conclusion of the witness' direct examination, upon request of defense counsel. 8. The existence and identification of each occasion on which each witness who was or is an informer, accomplice, co-conspirator, participant in a witness protection program, undercover agent, or expert has testified before any court, grand jury or other tribunal or body. The Defendant further requests an order requiring the government to collect and gather this information and have it available in court, and to be prepared to give it to defense counsel at the conclusion of the witness' testimony on direct examination at trial, or in any hearing in which the witness testifies at the conclusion of the witness' direct examination, upon request of defense counsel. 9. Any and all personal files for the witness; the existence and identity of all federal, state and local government files including drug counseling files (including DSS files) for the witness; and the existence and identity of all official internal affairs, internal investigation or public integrity investigation files relating to or connected with each witness who was or is a law enforcement agent. Specifically, reference is made to the Defendant's allegation contained in paragraph two above. The Defendant further requests an order requiring the government to collect and gather this information and have it available in court, and to be prepared to give it to defense counsel at the conclusion of the witness' testimony on direct examination at trial, or in any hearing in which the witness testifies at the conclusion of the witness' direct examination, upon request of defense counsel. 10. Any and all records and information revealing any defect or deficiency of capacity in the witness to observe, remember or recount events; specifically including, but not limited to, all such records and information in any way related to or connected with the competency, mental capacity, disease, defect disorder, symptoms, history, diagnose, prescription, treatment, counseling and/or prognosis or any mentally impaired witness including and, specifically, relating to the witness' nature or tendency to bring false charges, the witness' ability to consume alcoholic beverages, cocaine or other narcotic substances. The Defendant requests an order directing the district attorney to make inquiry of both law enforcement and civilian witnesses which the state intends to call at trial to determine the existence of any history of the witness in the areas defined above. If the government learns of the existence of any matters as defined, but is unable to obtain underlying information concerning same without seeking special orders of the court, the government is requested to notify defense counsel

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