Motion Filed by Attorneys For Charlie Tan

Case 5:17-cr-00228-FJS Document 21 Filed 12/07/17 Page 1 of 35
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK
_________________________________________________
UNITED STATES OF AMERICA,
v. NOTICE OF MOTION
5:17-CR-00228-FJS
CHARLES J. TAN,
Defendant.
__________________________________________________
MOTION BY: NOBLES & DECAROLIS, ESQ.

James Nobles, Esq., and
Brian DeCarolis, Esq.
Attorneys for the Defendant
JUDGE: Hon. Frederick J. Scullin, Jr., Senior United

States District Judge of the United States
District Court, Northern District
DATE, TIME & PLACE: At a term to be held on January 12,

2018 at the US District Court,
Northern District of New York
James M. Hanley Federal Building
100 S. Clinton St.
Syracuse, NY 13261
SUPPORTING PAPERS: Affirmation of James Nobles, Esq.

and Brian DeCarolis, Esq. affirmed on
December 7, 2017,
and all the prior pleadings
and proceedings heretofore and
herein.
RELIEF REQUESTED: A. DISCLOSURE OF GOVERNMENT

INFORMANTS;
B. INSPECTION OF JURY LISTS;
C. MOTION FOR PRIVATE VOIR DIRE OF

JURORS;
D. STATEMENT PURSUANT TO
F.R.Cr.P.RULE 12(b)(4);
E. DISCOVERY/INSPECTION F.R.Cr.P. RULE

16;
F. DISCLOSURE OF RULE 404(b)

EVIDENCE;
G. DISCLOSURE OF RULES 608 AND 609

EVIDENCE;
H. RELEASE OF BRADY MATERIAL;
I. PRODUCTION OF 3500 MATERIAL

(JENCKS ACT);
J. A HEARING PURSUANT TO BOURJAILY v.

U.S. 483 U.S. 171 (CONSPIRACY);
K. FURTHER MOTIONS.
DATED: December 7, 2017

Rochester, New York
/s/ James Nobles, Esq.
JAMES NOBLES, ESQ.

/s/ Brian DeCarolis, Esq.
BRIAN DECAROLIS, ESQ.

Attorneys for Defendant Charles J. Tan
45 Exchange Boulevard, Ste. 275
Rochester, New York 14614
(585) 546-1260
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TO: Miroslav Lovric, Esq., AUSA

U.S. Attorney's Office
Clerk of the Court

U.S. District Court
Northern District of New York
Hon. Frederick J. Scullin, Jr.

U.S. District Court Judge, Northern District
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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK
_________________________________________________
UNITED STATES OF AMERICA,
v. AFFIRMATION
5:17-CR-00228-FJS
CHARLES J. TAN,
Defendant.
_____________________________________________________________________
BRIAN DECAROLIS, ESQ. and JAMES L. NOBLES, ESQ., affirm under penalties of
perjury that the following statements are true to the best of our knowledge and belief:
1. BRIAN DECAROLIS, ESQ. and JAMES L. NOBLES, ESQ. state that we are
attorneys-at-law, duly licensed to practice law in the State of New York, the Western District of
New York, and have been admitted by pro hac vice to practice in the United States District Court
for the Northern District of New York. We jointly represent Charles J. Tan.
2. Your affiants make this Motion and omnibus demand on behalf of our client.
3. We are familiar with the case by reason of our own investigations, our conversations
with our client and others, and our review of the voluntary discovery material provided to date by
the Government.
4. This affirmation is submitted in support of the various forms of relief requested herein,
and is based upon the facts as we know them, the Federal Rules of Criminal Procedure, the
Federal Rules of Evidence, the United States Constitution, the New York State Penal Law,
Criminal Procedure Law, New York State Constitution, and other pertinent statutes and laws.
5. The following page contains an index of the subheadings for the general forms of
requested relief and refers to the particular page of the Affirmation.
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INDEX PAGE
A. EXISTENCE OF GOVERNMENT INFORMANTS 7
B. INSPECTION OF JURY LISTS 14
C. MOTION FOR PRIVATE VOIRE DIRE OF JURORS 14
D. SUPPRESSION OF ANY AND ALL ALLEGED STATEMENTS 15

OF THE DEFENDANT
E. DISCOVERY/INSPECTION F.R.Cr.P. RULE 16 15
F. F.R.Cr.P. RULE 12 20
G. 404(b) EVIDENCE 21
H. 608 AND 609 EVIDENCE 23
I. BRADY MATERIAL 24
J. 3500 MATERIAL 33
K. CONSPIRACY HEARING 34
L. FURTHER MOTIONS 34
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HISTORY
1. Defendant CHARLES J. TAN is charged in a three (3) count indictment, filed
August 23, 2017. He was arraigned on the same on September 23, 2017. The Indictment
charged him with one count of violating 18 USC 924(b) and 2(b), Receiving a Firearm and
Ammunition with Intent to Commit an Offense; one count of 18 USC 922(a)(6), 924(a)(2),
and 2(a) and (b), False Statement During Purchase of a Firearm; and one count of 18 USC
924(a)(1)(A) and 2(a) and (b), False Statement During Purchase of a Firearm. The Government
alleges these acts took place on or about February 5, 2015 in Cortland County, in the Northern
District of New York.
2. The Government alleges that CHARLES J. TAN received a Remington Model
870, 12 Gauge shotgun with serial number RS50700V, Winchester 12 Gauge shotgun
ammunition, and Federal 12 Gauge shotgun ammunition with the intent to commit, among other
felonies, Murder in the Second Degree, Manslaughter in the First Degree, and Manslaughter in
the Second Degree, in violation of New York State Penal Law 125.25(1), 125.20(1), and
125.15(1), respectively.
3. The Government also alleges that Mr. Tan, in connection with the acquisition of a
firearm from a licensed dealer of firearms, aided, abetted, counseled, commanded, induced,
procured, and willfully caused another to knowingly make a false and fictitious statement to a
dealer of firearms intended and likely to deceive such dealer with respect to a fact material to
the lawfulness of the sale as it relates to that same Remington, Model 870, 12 Gauge shotgun,
and that such information as required by Chapter 44 of Title 18 of the United States Code to be
kept in the records of a person licensed under that chapter, that is the actual purchaser of such
shotgun in violations of various statutes.
4. The United States Government, by and through the US Attorney for the Northern
District of New York, seems to have considered and filed these charges only after Mr. Tan was
tried for Murder in the Second Degree in Monroe County Court in October of 2015. That case
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was dismissed by a trial order of dismissal for the Peoples failure to provide a legally sufficient
case. It was only after that dismissal, as well as an unsuccessful appeal by the Monroe County
District Attorneys Office, that this action has commenced.
5. During the previous trial there was extensive media coverage throughout
Monroe, Onondaga, Tompkins, and Cortland Counties on a daily basis. Ultimately, there was a
Dateline episode produced about the case that aired on national television from December of
2015 through the present time on numerous occasions.
6. Upon information and belief, the Defense believes the Government has and
intends to use a Government informant or potential co-defendant, that individual being one
Whitney Knickerbocker, who appears to have been the actual purchaser of the shotgun in
question, based upon the various and sundry discovery from the United States Attorneys Office.
A. AN ORDER COMPELLING THE GOVERNMENT TO REVEAL

THE EXISTENCE AND IDENTITY OF GOVERNMENT INFORMANTS
7. Pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and
the other authorities set forth herein, Defendant moves for an Order directing the Government to
disclose the following documents and information regarding any informant in this case:
A. The name and address of each informant or potential co-defendant;
B. The case number and name of the prosecutions in which each informant
utilized in this case has previously been utilized as an informant;
C. The case names and numbers of any trials or evidentiary hearings at
which each informant has testified concerning:
(1) his/her own criminal activities;
(2) payments or rewards provided to him/her by the Government;
(3) efforts made to induce others to participate in criminal activity;
(4) Other purported law enforcement related matters;
D. Any ledger, sheet, or other document which details the sums paid to an
informant or his family in this and other cases in which said informant
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assisted the Government, and the purpose of each such payment;
E. Any information, whether or not memorialized in a memorandum, agents
report or other writing, regarding promises of immunity or leniency,
preferential treatment or other inducements made to an informant, or to
any family member, friend or associate of an informant in exchange for
the informants cooperation, including, but not limited to: dismissal or
reduction of charges; assistance in matters of sentencing, deportation,
parole or probation; or promises or expectations regarding payments for
expenses or testimony or eligibility for any award or reward;
F. Information or records concerning notification of potential prosecution,
investigation or deportation made by the Government to an informant or
any member of his family;
G. Any report, document or information which details the criminal activities of
each informant which were undertaken by him without the authority or
approval the Government, but for which the Government has elected,
formally or informally, not to prosecute;
H. Each FBI rap sheet, NCIC printout, NYSIIS printout, or any other records
available to the Government reflecting the arrest and conviction history of
the informant;
I. Shared Inter-Agency Intelligence Reports referencing activities of the
informant;
J. Instances of the use of an informants photograph in any identification
procedure;
K. Information concerning prior misconduct by the informant in the
performance of the role of informant, including:
(1) any prior allegation that the informant entrapped another person to
commit an offense or made false statements in connection with a
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criminal investigation
(2) any prior blackballing of the informant by any law enforcement
agency;
L. Information concerning misconduct by the informant other than in the
role of informant, including misconduct that reflects on the lack of candor,
truthfulness or law-abiding character of the informant, such as uncharged
criminal conduct or fraud;
M. Drivers license history or evidence that an informant was operating a
vehicle in violation of the law while working for the Government;
N. Information reflecting the nature and extent of assets obtained by an
informant in connection with his illegal activities over the past 10 years;
O. Any personnel files, maintained by the Government relating to an
informant utilized in this case reflecting on his character for truthfulness
and lawfulness; and,
P. Any Government agency files or other information revealing matters
relevant to an informants credibility, mental physical health, or narcotic
or alcohol use or other dependency.
8. In Roviaro v. United States, 353 U.S. 53, 65 (1957), the Supreme Court reversed
a conviction where the trial court denied Defendants Pre-trial Motion for disclosure of an
informant who was a participant in and material witness to the alleged criminal transaction.
The Roviaro standard for disclosure of informants who play an active rather than passive role in
the investigation is not a fixed rule, instead, the district court must take into consideration the
crime charged, the possible defenses, the possible significance of the informants testimony,
and other relevant factors, 353 U.S. at 62.
9. In Roviaro, the informant helped to set up the criminal occurrence and played a
prominent part in it; his testimony might have disclosed an entrapment 353 U.S. at 64. The
Supreme Court held that the desirability of calling (the informant) as a witness, or at least
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interviewing him in advance of trial, was a matter for the accused rather than the Government to
decide. 353 U.S. at 64. 1
10. The circumstances of the instant case are similar to the facts in Roviaro. The
informant here is the only witness in a position to amplify or contradict the testimony of
Government witnesses. 353 U.S. at 64.
11. The Eleventh Circuit has held that a defendant is entitled to disclosure of and
access to an informant where the informants probable testimony would bear a direct
relationship on the defendants asserted defense. United States v. McDonald,
935 F. 2d 1212, 1217 (11th Cir.1991).
12. In United States v. Espanosa-Hernandez, 918 F. 2d 911, 913-914 (11th Cir. 1990),
the Court held that blocking defense access to an informant who was the central figure of the
undercover operation would justify the granting of a new trial. In United States v. Ayala, 643 F.
2d 244, 247 (5th Cir. 1981), the Fifth Circuit reversed the defendants conviction based on the
district courts failure to grant a motion to compel disclosure of the identity of an informant. The
Ayala court analyzed the Roviaro standard for disclosure, stating: The informers level of
involvement with the criminal activity is an important consideration...The more active the
participation, the greater the need for identification. Id., 643 F. 2d at 246.
13. The importance of disclosure of the informant in the instant case is clear: Upon
information and belief, the most critical and material evidence against the Defendant is likely to
be testimonial in nature through a Government informant, who we believe is Whitney
Knickerbocker. Mr. Knickerbocker was obviously intricately involved in any alleged illegal
activity of the Defendants, if there was any, and would be in the best position to controvert and
discern any allegations of the Government and Government agents.
14. In light of the foregoing, the informant had to be an integral part of the
investigation and active participants in the events of this case. The informant, upon information
1 The importance of pre-trial disclosure of informants identity and current whereabouts is to allow the
defendant an opportunity to interview (the informant) prior to trial. U.S. v. Onager, 589 F. 2d 789, 804 (5th
Cir. 1979). As the Court stated in Onager, the importance to a litigant of interviewing potential witnesses
is undeniable. Id.
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and belief, was and continues to be an eyewitness who possesses information that bears
directly on the defense of the instant case. Pursuant to Roviaro, each informants identity
should be disclosed because they are the only eyewitness (es) in a position to amplify or
contradict the testimony of Government witnesses. Id. 353 U.S. at 64.
15. Information regarding the prior utilization of any informant is material and
favorable within the terms of Brady v. Maryland, where it reveals the informant's modus
operandi in setting up criminal transactions and in inducing other persons to participate in
criminal activity. Johnson v. Brewer, 521 F. 2d 556 (8th Cir. 1975). Experience has shown that
where an informant utilizes undue persuasion in one case to induce an individual to participate
in a criminal offense, he is likely to use the same tactic in other cases. United States v.
McClure, 546 F. 2d 670, 673 (5th Cir. 1977). In McClure, the conviction was reversed due to the
trial courts exclusion of Fed. R. Evid. 404 (b) evidence of a systematic campaign by the
informant to induce other persons to engage in illegal activity. Id., 546 F. 2d at 672.
16. Such evidence is also discoverable, pursuant to Giglio v. United States, 405 U.S.
150(1972), to aid in the impeachment of a witness. The prior testimony of an informant on
themes material to his service as an informant should be disclosed where the defense proposes
to examine the informant as to those themes at trial. Johnson v. Brewer, 521 F. 2d at 563. In
United States v. Cohen, 888 F. 2d 770, 776-777 (11th Cir. 1989), the Eleventh Circuit recognized
the importance of such evidence, reversing a conviction where the trial court had excluded
evidence offered under F.R.E. 404(b) that the primary informant had previously concocted and
managed a fraudulent scheme.
17. Defendant also seeks a full record of the monies paid to the informant and his/
her family as a result of cooperation in this case as well as any other case in which the
informant has provided services. Such detailed information and records are needed to avoid
disputes regarding the nature and extent of payments made to the informant, and are
discoverable pursuant to Giglio.
18. Defendant further seeks information as to threats or promises made to an
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informant or his family to motivate his cooperation. Such Giglio material is discoverable to allow
defense counsel to establish the bias or hostility of the informant in creating the circumstances
of the instant case. It is proper impeachment to question a cooperating witness about the
dropping of charges against, or other preferential treatment given to his or her family. United
States v. Nickerson, 669 F. 2d 1016 (5th Cir. 1982). The threats/benefits evaluation is not limited
to the informant alone. United States v. Partin, 493 F. 2d 750, 757 (5th Cir. 1974).
19. Similarly, unconsummated promises of financial of other awards or benefits are
discoverable as to the informant. Thus, where an informant harbors an expectation of a future
financial award for his services in obtaining a conviction, such evidence is crucially important to
the defense. Williamson v. United States, 311 F. 2d 411 (5th Cir. 1962) (conviction reversed
where informants recovery of an award was contingent on defendants conviction).
Furthermore, the full details of any Government inducements offered to a witness including his/
her entire history of compensation are discoverable and admissible at trial was reiterated by the
Eleventh Circuit in United States v. Williams, 954 F. 2d 668, 671(11th Cir. 1992). The Court held
that the jury has a right to know what may be motivating a witness, even if the amount paid an
informant is felt by the Government to be too prejudicial. Id., at 672.
20. Defendant seeks disclosure of any promise, formal or informal, that would lead
the informant to have an expectation of award in the instant case.
21. An informants history and pattern of criminal activity and misconduct serve to
illustrate the methods normally employed by the informant to achieve his goals. Such evidence
might easily extend beyond that of mere impeachment. United States v. Espanola-Hernandez,
918 F. 2d 911, 914 (11th Cir. 1990). In Espanola-Hernandez, the Eleventh Circuit reversed the
district courts failure to grant full discovery as to an undercover agents misconduct relating to
the handling of informants. Cf. Haber v. Wainwright, 756 F. 2d 1520 (11th Cir. 1985)(prior
criminal conduct relevant where witness may have been promised immunity).
22. The Courts have also held discoverable, and highly relevant, information
regarding prior or contemporaneous perjury or bizarre testimony of an informant, and other
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evidence of the unreliability of an informant witness. Mesarosh v. United States, 352 U.S. 1
(1956). Where an informant witness prior Pre-Sentence Investigation Report is in the
possession of the Government, disclosure should be ordered. United States v. Trevino, 556 F.
2d 1256, 1271 n 7 (5th Cir. 1977)
23. The discovery of assets obtained by an informant through criminal activity is
sought as its verification of the extent of the informants prior criminal activity and motive to
protect such assets from forfeiture. It further submitted that the informant may have committed
perjury in failing to report income from criminal activity in their prior income tax returns. Such
perjury is relevant to consideration of any evidence presented by the informant. United States v.
Shearer, 794 F. 2d 1545, 1551 (11th Cir. 1986).
24. In United States v. Deutsch, 475 F. 2d 55, 58 (5th Cir. 1973) the court compelled
disclosure of a postal employees personnel file where evidence failed to negate indications that
the employee, who had acted in the role of an informant, may have had disciplinary problems.
Similarly, in United States v. Garrett, 542 F. 2d 23, 26 (6th Cir. 1976), the court reversed the
defendants conviction where the district court foreclosed discovery and cross-examination as to
an undercover agents disciplinary records relating to his use of narcotics and failure to submit
to urinalysis. The court noted that such evidence was relevant because the undercover agent
might well have looked upon a successful prosecution of the defendant as a means of having
his own suspension from duty lifted. Id.
25. Information relating to a potential witness credibility is discoverable and material
to the defense. See United States v. Piccinonna, 885 F. 2d 1529 (11th Cir. 1989). Particularly
relevant is evidence that such an individual is undergoing psychiatric treatment (See United
States v. Lindstrom, 698 F. 2d 1154 (11th Cir. 1983)), is otherwise physically or emotionally
impaired (See United States v. Partin, 493 F. 2d 750, 762 (5th Cir. 1974)), or is addicted to or
abuses drugs or alcohol. See United States v. Collins, 472 F. 2d 1017 (5th Cir. 1972); United
States v. Fowler, 465 F. 2d 664 (D.C. Cir. 1972); United States v. Romano, 482 F. 2d 1183 (5th
Cir. 1973).
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B. INSPECTION OF JURY LISTS
26. Defendant has a constitutional and statutory right to a jury chosen without
discrimination from a fair cross-section of the community. Glasser v. U.S., 315 U.S. 60(1942); 28
U.S.C. 1861. The provisions of the Jury Selection and Service Act of 1968 allow the defendant
an unqualified right to inspect jury lists during the preparation of a motion to challenge
compliance with the grand jury selection procedure. Test v. U.S., 420 U.S. 28 (1975); 28 U.S.C.
1867 (f). Therefore, pursuant to 28 U.S.C. 1861, et seq., Defendant requests the Court to
order the Clerk of the U.S. District Court for the Northern District of New York to allow the
undersigned or his designated agent(s) to inspect, reproduce, and copy any and all records or
papers used in the selection of the grand jury that indicted the defendant. Inspection of these
records will permit Defendant to determine whether the jury panel was selected, and treated, in
accordance with the law.
27. The Defendant requests similar access to the records used, or to be used, in the
selection of the petit jury in this case, should the case be scheduled for trial.
C. MOTION FOR PERMITTING PRIVATE VOIR DIRE OF INDIVIDUAL JURORS
28. Defendant is requesting private voir dire of individual jurors. There are sensitive
issues in this case about which a juror should be questioned, including but not limited to the
extensive media portrayal of Mr. Tan and his family, information from the jurors who sat on the
case, the appeal related to the state case, and the ultimate outcome. This case was not only
followed with heavy media scrutiny throughout the investigation and trial, but also after the case
was dismissed by a trial order of dismissal. There were several significant interviews and
recitations on the jurors decisions and opinions about the case after its dismissal, as well as
significant media coverage of the appeal.
29. Potential jurors can harbor an infinite number of biases relating to Mr. Tan, or this
case in general, in favor of or against the Government or the Defendant, and may not be willing
to talk about such biases in front of others. Accordingly, voir dire must be sufficiently detailed
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and exhaustive to test the jurors bias of any sort. United States v. Jones, 722 F.2d 528 (9th Cir.
1983) (a specific need for voir dire questioning arises when the case involves matters which the
local community or the population at large is commonly known to harbor strong feelings that
significantly skew deliberation of fact).
30. Potential jurors will have possible biases against the Government or the
Defendant in this particular case given the extensive media coverage as well as the multiple
opinions of the police officers, the jurors, and other members of the community that have been
highlighted by the media. What we do not want is for a juror to blurt out something so
prejudicial in front of the entire venire that it would cause a mistrial, wherein the Court would
have to impanel an entirely new group of jurors.
31. In the state trial of this case before Monroe County Court Judge James
Piampiano, individual voir dire was conducted in order to identify potential juror biases. The
media coverage had been so unique and extensive in this case that it required several days and
over 225 potential jurors in order to seat a jury. A large majority of the people in jury selection
had heard of the case and a large portion of those expressed significant opinions they had
formed about the Defendant and/or the case.
32. Since that time, there has only been further media coverage surrounding the
outcome of the Monroe County Court case and the new pending charges in the Northern District
of New York. Part of that coverage, as previously mentioned, was a Dateline episode that has
aired numerous times nation-wide. It is the position of the defense that the individual voir dire in
the state case was prudent and necessary and prevented a waste of time by potential jurors
tainting a panel. Now, individual voir dire is even more necessary, as the pre-trial publicity spans
more than 2 1/2 years and includes extensive coverage of every aspect of this case, including
the murder trial and subsequent appeal.
D. SUPPRESSION OF ANY AND ALL ALLEGED STATEMENTS OF THE DEFENDANT
33. Although the Government has yet to file a 12(b)(4) notice, the Defense believes
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there may be a statement they intend to submit as evidence as a post-arrest statement by Mr.
Tan.
34. The Defense requests an Order suppressing the use at trial of any and all
statements attributed to CHARLES J. TAN.
35. The Defendant asserts that he was not advised of his rights at any time.
36. The Defendant asserts that he did not make a knowing, intelligent, and voluntary
waiver of his rights prior to the time he was questioned.
37. The Defendants right to counsel and other constitutional rights have been
violated and therefore, an order of suppression should be granted, or in the alternative, a
hearing held to determine the facts surrounding the taking of the alleged statements.
E. MOTION FOR DISCOVERY AND INSPECTION F.R.Cr.P. Rule 16
38. Prior to your affiants filing of this motion, Defendant states that, voluntary
discovery has occurred as follows: Certain discovery materials have been provided to counsel
by the Government via computer disc, hard copy, and external hard drive.
39. The Defendant requests, pursuant to Rule 16 (a) (1) (A) of Federal Rules of
Criminal Procedure, that the Court enter an Order directing the Government to permit counsel to
inspect and/or copy any written or recorded statements made by the Defendants which are
within the possession, custody, or control of the Government or which, through exercise of due
diligence, may become known to the Government, or any of its agencies or agents. This
request is to include, but not to be limited to, the substance of any oral statements which the
Government in any way obtained from the Defendant, whether or not it intends to offer said
statements in evidence at trial, and whether they were obtained before or after arrest, together
with any and all notations, memoranda, synopses, summaries, etc., which relate to the same.
40. The Defendant also requests, pursuant to Rule 16(2)(1)(A), to be provided with
the statements of any and all Defendants, co-defendants, or unindicted co-conspirators the
Government intends to use at the time of trial as statements of the Defendant. This request is
directed, but not limited to, any and all statements of any co-defendants, whether they are
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charged or uncharged, and whether they be written or oral, which are currently within the
possession, custody or control of the Federal Government or which, through the exercise of due
diligence, may become known to the attorneys for the Government.
41. The Defendant also requests an Order directing the United States Attorney to
produce and permit the Defendant to inspect, copy or photograph the following:
A. The names and addresses of persons who have knowledge pertaining to
this case or who have been interviewed by the Government or their
agents in connection with this;
B. Written statements of all persons in subparagraph (A), above, whom the
Government does not plan to call as witnesses;
C. All tape recordings of the statements made by witnesses to the alleged
crime or witnesses from whom the Government intends to elicit testimony
at the trial;
D. All FBI and state and local arrests, convictions and probation records of
all defendants and those persons listed in subparagraph (A) whom the
Government plans to call as witnesses in this case;
E. Transcript testimony of any and all persons who testified before the Grand
Jury in this case;
F. All tape recordings of conversations between the Defendant and potential
co-defendant, whether charged or uncharged, which were obtained as a
result of any electronic surveillance, including, but not limited to,
conversations obtained with the purported consent of any party or by
virtue of an electronic surveillance warrant. (i.e. copies of the tapes
obtained by the Government through the use of surreptitious body wires.)
42. The Defendant also requests an Order from this Court pursuant to Rule 16 (a) (1)
(D), directing the Government to disclose, and make available for copying, any results or reports
or any and all physical or mental examinations, scientific tests or experiments, or copies thereof,
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including but not limited to, voice exemplars, handwriting exemplars, fingerprint comparisons,
lab reports, photo arrays, etc., which were performed in connection with this case and which are
in the possession, custody, or control of the Government. These materials are necessary to the
preparation of the defense herein and it is believed that the Government will intend to use such
materials as evidence at the time of trial. See, U.S. v. Eisler, 567 F.2d 814.
43. The Defendant requests an Order from this Court directing the Government to
disclose, pursuant to Rule 16 (a) (1) (C) and/or permit the Defendant to inspect and copy books,
papers, documents, photographs, tangible objects, building or places, or similar objects which
are within the possession, custody or control of the Government, specifically including the
following:
A. Any and all papers, documents, memoranda or other items taken from
the Defendant, his personal effects, his automobile, or premises over
which he had a legitimate expectation of privacy;
B. Any tangible objects obtained from the person, effects, or any vehicle
belonging to or driven by the Defendant;
C. Any and all documents, instruments, forms or statements of any kind
signed or purported to have been signed by the defendant; (i.e.
immigration documents);
D. All other books, papers, documents or tangible objects the Government
plans to offer into evidence at trial;
E. Any and all property in the possession of the Government or its agents or
seized by the Government or its agents or alleged by the Government to
belong to the defendant;
F. Copies of any and all warrants, applications, complaints, and any and all
supporting documents which in any way relate to the present charges or
the alleged activities of the Defendant, not already on file, whether they
are documents of the State of New York or any other state or agencies of
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the Federal Government;
G. Any and all charts, maps or other computations which the Government
intends to use at trial or which the Government, or New York State, and
any or all other state or law enforcement authorities are in possession of
and which were made or used during the investigation of this matter for
the preparation of the Indictment;
H. The logs or investigative notes of any United States, or New York State,
or any other state, or law enforcement agent prepared in the course of the
surveillance of any property, vehicle, or person connected with the
investigation of this case, including but not limited to, any and all
surveillance of any property, vehicle, or person connected with the
investigation of this case, including, but not limited to, any and all
surveillance notes made by agents of the F.B.I., Rochester Police
Department, U.S. Customs, Homeland Security, Monroe County Sheriffs
Department, Onondaga County Sheriffs Office, Cortland County Sheriffs
Office, the New York State Police, and any and all other investigative
agencies.
I. Any and all supporting documents concerning the investigative notes of
whatever nature of each and every Government agent, or any other law
enforcement agent, who participated in the alleged surveillance, search,
seizure, and arrest of any person, property or vehicle in connection with
this Indictment.
44. The Defendant also requests that the Government provide him with copies of any
and all surveillance photographs taken by agents of the Federal, State, County or Local
Government, which relate to the investigation of the events which constitute the Indictment.
45. The Defendant requests that the Court grant an Order directing the Government
to produce the following materials that are critical to the defense of this matter: A complete
!19
written inventory of audio tapes to include body wire recordings, and recordings of all telephone
conversations.
46. The Defendant further moves pursuant to Rule 12(b) that the Government notify
the Defendant of its intention to use any evidence which the Defendant may be entitled to
discover under Rule 16, particularly requested herein.
47. Defendant further notes that pursuant to Rule 16(B) the Governments duty to
disclose the requested materials herein is a continuing one and the defense specifically
requests that any and all materials requested herein which are required or come to the attention
of the Government subsequent to the disposition of the motion is promptly supplied to the
Defendant.
48. With respect to any items demanded by the defense which the Court in its
direction may refuse disclosure, it is respectfully requested that the Court, in the interest of
justice, require the Government to disclose the existence of such items and supply copies to the
Court, in camera, so that these materials and information can be preserved and their existence
established.
F. F.R.Cr.P. RULE 12(b) (4) STATEMENT
49. The Defendant hereby demands and requests that the Court order the
Government to provide the Defendant with a statement containing the evidence that the
Government intends to use at the trial herein.
50. The Government's statement should include any and all Rule 16 discovery
material and evidence formally requested above, together with any other discoverable material
that may give rise to a motion to suppress evidence, including but not limited to the following:
A. Tangible property obtained by means of an unlawful search and seizure
under circumstances precluding admissibility thereof in a criminal action
against this Defendant;
B. A record of potential testimony reciting or describing declarations or
conversation overheard or recorded by means of eavesdropping or other
!20
electronic surveillance, obtained under circumstances precluding
admissibility thereof in a criminal action against the Defendant.
The Defendant requests any tape recordings; voice reproductions or
mechanical voice recordation of the Defendant whether by Court
ordered wiretapping; monitored telephone conversations unilaterally
consented to or by so-called "body-wire" or concealed recordation device
on the person or within the physical or constructive possession and
control of the Government or the latter's agent, servant or employee.
C. A record or potential testimony reciting or describing a statement of the
Defendant involuntarily made as a matter of fact and law.
D. Any derivative evidence obtained as a result of other evidence obtained in
a manner described in the statute.
E. A statement containing potential testimony regarding an observation of
the commission of the offense or upon some other occasion relevant to
the case, which potential testimony would not be admissible upon the
prospective trial of such charge owing to an improperly made previous
identification of the Defendant by the prospective witness; and
F. Tangible property of any description; electronically or mechanically
recorded statements; and property evidence, reports, testimony or any
functional equivalent of same which the Government intends to admit into
evidence against any co-Defendant or co-Conspirator presently charged
with the Defendant under any indictment and which may be proffered
under any substantive or evidential theory of law.
G. DISCLOSURE OF EVIDENCE UNDER RULE 404(b)
51. The Defendant hereby moves pursuant to Rule 404(b) of the Federal Rules of
Evidence for pretrial disclosure of any evidence to be offered by the prosecution at trial under
!21
that subsection and for the exclusion of any such proffered evidence found to be inadmissible
pursuant to Rules 403 and 404(b) of the Federal Rules of Evidence.
52. On December 1, 1991, a pretrial notice requirement became effective with
respect to 404(b)-type evidence. In pertinent part, that new amendment provides that,
. . . upon request by the accused, the prosecution in a criminal case

shall provide reasonable notice of trial, . . . of the general nature of any
such evidence it intends to introduce at trial.
53. The Judiciary Committee notes indicate that the amendment was enacted,
. . . reduce surprise and promote early resolution on the issue of admissibility.
54. Further, the Supreme Court has expressly recognized that Rule 404(b) protects
against the presentation of extrinsic act evidence when the evidence is offered solely to prove
character. See, Huddleston v. United States, 485 U.S. 681, 687, 108S. Ct. 1946, 1500 (1990).
55. When addressing the introduction of extrinsic act evidence, the Second Circuit
has repeatedly mandated that [c]aution and judgment are called for, and a trial judge faced with
other crimes evidence problems, should require the government to explain why the evidence is
relevant and necessary. See, United States v. Mohel, 604 F. 2d 748, 751 (2d Cir. 1979); United
States v. DeVaughn, 601 F. 2d 42, 45, (2d Cir. 1979).
56. In Huddleston, supra, the Supreme Court outlined the three-prong standard,
which must be met before 404(b) evidence could be admitted:
A. Identify the other act and show who did it. By considering the evidence
offered, and whether the jury can reasonably find that a similar act was
committed by the accused.
B. The proffered evidence must be relevant to an issue in the case under
Rule 402; and
C. The proffered evidence must satisfy the probative/prejudice balance test
of Rule 403.
See Huddleston, 485 U.S. at 689-91; See also, United States v Gilan, 967 F. 2d 776, 780 (2d
Cir. 1992) in order to satisfy the relevance requirement, the Court advised that the other acts
!22
sought to be proved must be similar to the matter at bar. See, Huddleston, 485 U.S. at
689-691.
57. Indeed, the Second Circuit has consistently advised that it is an abuse of
discretion for the trial court to admit other act evidence if the other act or acts are not
sufficiently similar to the conduct at issue, or if the chain of inferences necessary to connect
evidence with the ultimate fact to be proved are unduly long. See, United States v. Peterson,
808 F. 2d 969, 974 (2d Cir. 1987); See also Gordon, 987 F. 2d 902, 909.
58. Significantly, even when relevant, 404(b) proof must be excluded where its
probative value is outweighed by the danger of unfair prejudice. See F.R.E. 403.
59. Defendant respectfully requests that this Court follow procedure utilized by
United States District Court Judge Richard Arcara in United States v. Scozzafava, CR No.
92-70A, wherein the Government was ordered to supply the Court and defense, prior to trial,
with a proffer notice identifying each act that the Government sought to prove pursuant to
404(b) together with any legal authority in support of each items admissibility. Thereafter, the
admissibility issue can be addressed by all parties in an informed manner.
60. In view of the above, the defense seeks pretrial notice of any acts the
Government seeks to prove pursuant to 404(b), as well as a judicial determination as to the
admissibility of such evidence.
61. It is respectfully requested that the Court issue an Order directing the disclosure
of 404(b) evidence, which the prosecution intends to offer against Defendant and the exclusion
of any such evidence found to be inadmissible.
H. DISCLOSURE OF MATERIAL PURSUANT TO

FEDERAL RULES OF EVIDENCE 608 AND 609
62. Deponents request that the Government disclose the conduct, opinion, and
reputation evidence as well as the criminal conviction the Government intends to use in cross-
examination of witnesses.
63. Your deponents respectfully request that this Court fix a date well in advance of
!23
trial for disclosure of any Federal Rule of Evidence 608 and 609 materials, which the
Government intends to offer against the Defendant at trial.
I. BRADY MATERIAL
64. In the landmark case Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court
recognized that prosecution authorities are constitutionally bound to tender to defendants, on
request, any evidence or information which may come into their possession or under their
control which might reasonably prove favorable to them either with respect to the outcome of
their trials or with respect to the severity of the penalties to be imposed upon them should they
be convicted.
65. In accordance with the Supreme Court decision in United States v. Agurs, 427
U.S. 97, the Brady requirement has been expanded where specific requests are advanced by
the defense. More recently, the Supreme Court has expressly recognized the impairment of a
defendants fair trial fight whenever the prosecution fails to answer a specific Brady request.
See, United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 3384 (1985).
66. In reliance upon the Supreme Court decision in Giglio v. United States, 405 U.S.
105, the Second Circuit has observed that, when requested by the defense, evidence relating
to a material witness credibility must be provided under Brady. See, Perkins v. LeFevre, 642 F.
2d 37, 40 (2d Cir. 1981). In a more recent decision, the Second Circuit held that a Government
file, which contained impeachment material regarding a prosecution witness should have been
produced prior to the witness testimony. See, United States v. Bejasa, 904 F. 2d 137, 140
(1990).
67. The Supreme Court has held that,
[I]mpeachment evidence, however, as well as exculpatory evidence, falls

within the Brady Rule . . . such evidence is evidence favorable to an
accused so that, if disclosed and used effectively, it may make the
difference between conviction and acquittal.
See, United States v. Bagley, 473 U.S. at 676 (citations omitted).
68. The prosecutions Brady obligation extends to material in the possession of all
!24
governmental agencies. See, United States v. Gerrity, 481 F. Supp. 119; see also United States
v. Morell, 524 F. 2d 550, 555 (2d. Cir. 1975). In a post-Bagley decision, the Second Circuit
observed that [t]he law is clear that Brady and its progeny require that the Government disclose
material impeachment evidence. See, United States v. Kiszewski, 877 F. 2d 210, 216 (1989).
69. In Agurs, the Supreme Court was called upon to discuss the Brady rule. One of
the instances discussed in Agurs, was the situation as exists in this case where there is a
pretrial request for specific evidence. See Agurs 427 U.S. at 104.
70. With respect to a specific defense Brady request, the Agurs Court observed that:
. . . if the subject matter of such a request is material or indeed if a

substantial basis for claiming materiality exists, it is reasonable to require
the prosecutor to respond either by furnishing the information or by
submitting the problem to the trial Judge. When the prosecutor receives
a specific and relevant request, the failure to make any response is
seldom, if ever excusable.
See Id. at 106; see, Bagley, 473 U.S. at 667.
71. In Bagley, both the Supreme Court and the Government expressly recognized
the twofold impairment of the defense function whenever the prosecution fails to fully respond to
a specific Brady request. The Government brief in Bagley noted that:
. . .an incomplete response to a specific request not only deprives the

defense of certain evidence, but has the effect of representing to the
defense that the evidence does not exist. In reliance upon this
misleading representation, the defense might abandon line of
independent investigation, defenses, or trial strategies that it otherwise
would have pursued.
See, Bagley, 473 U.S. at 682
72. The Bagley Court cautioned other reviewing Courts to consider:
. . . any adverse effect that the prosecutors failure to respond might

have had on the preparation or presentation of the defendants case.
See Id. at 667.
73. Under Bagley, reviewing courts are required to assess the impact of
such an adverse effect in light of the totality of the circumstances. See Id.
74. In United States v. Bethea, 787 F. Supp. 75 (D.N.J. 1992), the Court observed
that the disclosure of credibility or impeachment material should be had at the earliest
!25
possible date. See, Id., at 77. The Bethea Court realistically recognized the fact that defense
counsel must have, among other things, a reasonable opportunity to investigate the accuracy of
any Brady/Giglio/Agurs material. See, Id.
75. It is now well-settled that where exculpatory or favorable evidence is contained in
the statement of a Government witness discoverable under the Jencks Act only after the witness
has testified, such . . . restrictions must be accommodated to the demands of due process,
and the relevant portions of the statements disclosed prior to trial. See, United States v.
Gleason, 265 F. Supp. 880, 887 (S.D.N.Y. 1967).
76. It has been correctly recognized that tangible items pertaining to a prosecution
witness bias and/or interest are material to the preparation of the defendants defense; and
should be disclosed under Rule 16. See United States v. Moreno-Rodriquez, 744 F. Supp. 1040
(D. Kan. 1990). Such items obviously fall within the disclosure mandate of Brady, as well.
77. In United States v. Perdomo, 929 F. 2d 967 (1991), the Third Circuit observed, a
prosecutors lack of knowledge does not render information unknown for Brady purposes. See
Id., at 970. The Third Circuit reversed the conviction in Perdomo as the prosecution had failed
to search out and disclose local criminal records pertaining to one of its witnesses. In United
States v. Osorio, 929 F. 2d 753 (1991), the First Circuit held that,
[a]n Assistant United States Attorney using a witness with an

impeachable past has a constitutionally derived duty to search and
produce impeachment information requested regarding the witness.
See Id., at 761.
78. The Ninth Circuit reversed and remanded in a case where the prosecution had
failed to disclose a memorandum written by a DEA agent that was critical of the informers role
in the investigations. See, United States v. Brumel-Alvarez, 976 F. 2d 1235, 1239-40 (1992).
As noted above, the Second Circuit held that the Government should have produced the INS file
on one of its witnesses. See, Bejasa, 904 F. 2d at 140.
79. It is imperative that any favorable evidence, especially any favorable testimony
given by Grand Jury witnesses or any other documents or statements, be delivered to the
!26
defense well before trial so that it might effectively be used. In order to effectively exploit any
Brady material which may exist, it is essential that the defense be given this material far enough
in advance of trial so that other investigatory leads may be pursued in sufficient time to permit a
full preparation of defenses case. The Supreme Court has recently recognized that Brady
material should be disclosed for use during both defense preparation and presentation. See,
Bagley, 473 U.S. at 682.
80. If the defendant is forced to wait until the time of trial, it may be too late
for him to contact witnesses, interview them, and arrange for their being subpoenaed
on behalf of the defense. Therefore, it is imperative that the evidence in the prosecution file,
which is favorable to the defense, be disclosed immediately so that arrangements can be made
for those persons to be called during the course of this trial. See, United States v. Gil., 297 F.
3d 93 (2d (Cir. 2002); Leka v. Portuondo, 257 F. 3d 89 (2d Cir. 2001); In re United States v.
Coppa, 267 F. 3d 132 (2d Cir. 2001); Grant v. Alldredge, 498 F. 2d 376 2d Cir. 1974).
81. In addition to the above, it is respectfully submitted that the required
disclosure and production of Brady material should include, but should not be limited to,
the following topics:
A. All material including all statements, law enforcement reports and
investigative reports and/or notes of law enforcement agencies
electronic, mechanical or video recordings which are arguably
favorable to Defendant or may lead to arguably favorable material.
B. Any and all evidence tending to establish Defendant was not
a participant in the conspiracies alleged in any count of the Indictment
involved in any of the underlying activities encompassed by that court,
including:
(1) The name(s) and address(es) of any individual interviewed or
debriefed by any government agent who failed to identify and/or
mention Defendant as being engaged in any or all of the
!27
alleged criminal activity charged in this indictment;
(2) Any and all evidence which tends to establish that Defendant
did not have knowledge of the conspiracy or any activity
of the conspiracy or any activity encompassed by this indictment;
(3) The name and address of each person interviewed by any
government agent in the course of this investigation whom
the Government does not intend to call as a witness at trial,
especially those whose testimony would have implicated alleged
co-conspirators who will be Government witnesses; and
(4) Any and all evidence (including FBI 302s, DEA 6s, grand jury
minutes, local and state law enforcement reports, witness
statements, etc.) which tend to establish that Defendant did
not enter into any agreement to commit any crime against the
United States.
C. Any record, material and/or information which relates to any deal or
understanding entered into by any governmental agency and any
prospective prosecution witness in consideration for the cooperation or
testimony of that prospective prosecution witness, including the precise
favorable treatment received by or anticipated by each such prosecution
witness to include, but not limited to, the nature of any plea bargain,
written or unwritten, between each prospective witness or cooperating
individual and the United States, the State of New York and/or any other
governmental subdivision.
D. Any record, material and/or information tending to indicate that any
prospective prosecution witness was motivated to cooperate with the
prosecution by a desire to avoid being prosecuted and/or proceeded
against by any federal, state and/or local authority.
!28
E. Any record, material or information indicating that the cooperation of any
prospective prosecution witness was motivated to cooperate with the
prosecution witness was induced by a threat, expressed or implied, that
unless such cooperation was forthcoming the witness would be
prosecuted.
F. Any record, material or information indicating that any prospective
prosecution witness during the instant investigation gave
contradictory information or engaged in lying, deceitful or otherwise
mendacious activity.
G. Any record, material, or information that any prospective prosecution
witness has, at any time, given contradictory information or has engaged
in lying, deceitful or otherwise mendacious activity with respect to any
criminal, civil and/or administrative investigation, proceeding and/or
action.
H. Any record, material or information indicating that any prospective
prosecution witness has given information contradictory to or at variance
with information received from other sources.
I. Any and all material and/or information that would adversely reflect on the
credibility, reliability, veracity, propensity for violence and/or bias of any
witness to be called by the prosecution.
J. The jurisdiction, venue, disposition and nature of all crimes charges
now pending involving in any manner any person to be called as a
witness by the prosecution; and
K. The jurisdiction, venue, disposition and nature of all criminal charges
involving in any manner any witness to be called by the prosecution
which has previously been concluded.
L. Any and all police reports, incident reports, DEA reports, FBI reports,
!29
State Law enforcement reports, transcripts and/or any other
documentation or material reflecting the name and address of any
interviewed individual who could provide information adversely affecting
the credibility, reliability or veracity of any witness to be called by the
prosecution.
M. Whether any witness to be called by the prosecution is or was at the time
of the events alleged in the indictment a user of any controlled substance
and, if so, a description of the following:
(1) The substance or substances;
(2) The amount used;
(3) The term of the addiction or abuse;
(4) Any and all psychological or psychiatric reports concerning the
witness drug abuse and/or any other psychological and/or
psychiatric problem that could impair his or her ability to recall and
recite events which he/she is expected to testify in this case.
N. Whether any witness to be called by the Government is or was at the time
of the events alleged in the indictment an abuser of alcohol and, if so, a
description of the following:
(1) The term of addiction;
(2) Current status with regard to alcohol abuse; and
(3) Any and all psychological or psychiatric reports concerning the
witness alcohol abuse and/or other factor that might relate to that
persons ability to recall and recite events about which he or she is
expected to testify in this case.
O. Whether any prospective prosecution witness has ever required any
psychiatric or psychological treatment or evaluation and, if so, then a
description of the following:
!30
(1) When and where the treatment or evaluation occurred;
(2) The exact nature of the condition treated;
(3) Whether the witness was ever admitted to a hospital and, if so,
when and where, together with the diagnosis and prognosis;
(4) A copy of any psychological and/or psychiatric report or evaluation
of the witness.
P. The exact nature of any plea bargain agreement the Government has
with any witness it intends to call, including a copy of the agreement if in
writing. This request includes, but is not limited to:
(1) Any agreement to dismiss any charge against the witness;
(2) Any agreement concerning the sentence of any witness;
(3) Any agreement concerning the reduction of sentence after
testimony;
(4) Any agreement concerning the place of incarceration;
(5) Any agreement regarding the exact nature of any reward or
expenses paid to any witness;
(6) Any agreement not to bring any other criminal charge in this
jurisdiction or in any other jurisdiction;
(7) Any agreement between the Government and any witness,
whether written or unwritten, to limit the amount of information to
be provided to the witness probation officer;
(8) Any agreement between the Government and any witness not to
seek certain sentence enhancements which are provided in the
Guidelines;
(9) Any agreement or understanding between the prosecution and
any witness to recommend a reduction in the base offense level
(i.e. for a minor role in the offense);
!31
(10) Any agreement between the prosecution and any prospective
witness, whether verbal or in writing, to forebear prosecution
against any family member or friend of said witness or to
immunize such family member or friend.
Q. With regard to the pre-sentence investigation, any agreement between
the prosecution and the prospective witness to limit the amount or
relevant conduct by such witness for purposes of sentencing.
R. Any agreement between the prosecution and any prospective witness to
withhold or forego the forfeiture of any property or other assets, together
with a list of each asset encompassed by such agreement.
S. The nature and recipient of any grant of immunity, formal or informal,
given to any prospective prosecution witness, including a copy of any
written immunity order or letter and a statement regarding the full scope
of such immunity.
T. Any information in the prosecutions possession or in the possession of
any cooperating agency that any prospective prosecution witness has lied
or withheld information in violation of any immunity and/or plea
agreement, including information withheld during any debriefing.
U. With regard to the pre-sentence investigation of any prospective
prosecution witness, any and all conduct which the Government
considers relevant conduct under 1B1.1 of the United States
Sentencing Guidelines.
V. Any record, material and/or information which is consistent, or arguably
inconsistent, with any other evidence in the prosecutions possession
including, but not limited to, any statement in any pre-sentence report of
any prospective government witness which is any way favorable to
Defendant.
!32
W. The personnel and/or informant file for each government agent and/or
cooperating individual who is expected to testify at trial; this material is to
be supplied to the Court in camera. See, United States v. Kiszewski, 877
F. 2d 210 (1989).
X. Any record, material and/or information to the effect that there was no law
enforcement physical surveillance of any purported meeting between any
actual and/or suspected Co-Defendant and Defendant.
Y. Any record, material and/or other information to the effect that there was
no law enforcement physical surveillance of any purported meeting
between any actual and/or suspected Co-Defendant and Defendant.
Z. Counsel specifically reserves the right to make additional requests for the
material covered above at the time this motion is argued or at such other
time as the existence of such material shall become known to counsel for
the defendant, and it is respectfully requested that the prosecution be
instructed that its duty under Brady/Giglio is a continuing one.
J. 3500 MATERIAL
82. Under 18 U.S.C. 3000 (the Jencks Act), Defendant is entitled to witness
statements after the witness has completed his or her testimony on direct examination. This
Court has, on a case-by-case basis, invoked its discretion to require production of Jencks Act
statements in advance of the trial so that unnecessary delays will not take place during the
course of the trial.
83. The Defendant requests the Court to order the Government to deliver to the
Defendant immediately, but not later than two months before the date of the trial, the following
documents:
A. any statement, however taken or recorded, or a transcription thereof, if
any, made by the witness(es) to a grand jury;
!33
B. any written statement made by a witness that is signed or otherwise
adopted or approved by the witness;
C. any stenographic, mechanical, electrical or other recording or a
transcription thereof, which is a substantially verbatim recital of an oral
statement made by the witness and recorded contemporaneously with the
making of such oral statement;
D. any and all rough notes of witnesses interview(s) taken or obtained in any
investigation of the defendant including federal, state, local and other
investigations whether or not the contents thereof have been incorporated
in official records;
84. In addition to avoiding unnecessary delays, sufficient pretrial delivery of Jencks
material also insures that the Defendants fundamental rights to a fair trial and compulsory
process and due process are safeguarded.
85. Defendants request for witness statements and Jencks Act material also is
directed toward disclosure of statements by witnesses that will testify at any evidentiary hearing
in this matter.
K. BOURJAILY HEARINNG
86. Upon information and belief, the Government may seek to introduce at trial
statements of an alleged co-conspirator pursuant to F.R.E. 801 (d)(2)(E). Pursuant to Bourjaily
v. United States, 483 U.S. 171, Defendants request that the Court hold a pretrial conspiracy
hearing to assess the foundation for the introduction of any statements made by alleged co-
conspirators which the Government will seek to introduce against the Defendant at trial.
L. AN ORDER RESERVING THE RIGHT TO BRING FURTHER MOTIONS
87. It is requested that any Order made in this case contain a reservation allowing
the right to bring further motions, such as the suppression of items or of statements, when and if
through discovery, Brady, or these motions, this becomes necessary and appropriate.
!34
88. Your affiants will advise the Court as to the necessity to file further
motions.
WHEREFORE, Defendant CHARLES J. TAN respectfully requests this Court issue an
Order granting the relief sought herein, and for such other and further relief as to the court may
seem just and proper.
Dated: December 7, 2017 /s/ James Nobles, Esq.

JAMES NOBLES, ESQ.
/s/ Brian DeCarolis, Esq.

BRIAN DECAROLIS, ESQ.

Attorneys for Defendant Charles J. Tan
45 Exchange Boulevard, Ste. 275
Rochester, New York 14614
(585) 546-1260
!35

Motion Filed by Attorneys For Charlie Tan

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Case 5:17-cr-00228-FJS Document 21 Filed 12/07/17 Page 1 of 35

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA,

MOTION BY: NOBLES & DECAROLIS, ESQ.

JUDGE: Hon. Frederick J. Scullin, Jr., Senior United

DATE, TIME & PLACE: At a term to be held on January 12,

SUPPORTING PAPERS: Affirmation of James Nobles, Esq.

Case 5:17-cr-00228-FJS Document 21 Filed 12/07/17 Page 2 of 35

RELIEF REQUESTED: A. DISCLOSURE OF GOVERNMENT

B. INSPECTION OF JURY LISTS;

C. MOTION FOR PRIVATE VOIR DIRE OF

E. DISCOVERY/INSPECTION F.R.Cr.P. RULE

F. DISCLOSURE OF RULE 404(b)

G. DISCLOSURE OF RULES 608 AND 609

H. RELEASE OF BRADY MATERIAL;

I. PRODUCTION OF 3500 MATERIAL

J. A HEARING PURSUANT TO BOURJAILY v.

DATED: December 7, 2017

TO: Miroslav Lovric, Esq., AUSA

Clerk of the Court

Hon. Frederick J. Scullin, Jr.

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA,

requested relief and refers to the particular page of the Affirmation.

A. EXISTENCE OF GOVERNMENT INFORMANTS 7

B. INSPECTION OF JURY LISTS 14

C. MOTION FOR PRIVATE VOIRE DIRE OF JURORS 14

D. SUPPRESSION OF ANY AND ALL ALLEGED STATEMENTS 15

E. DISCOVERY/INSPECTION F.R.Cr.P. RULE 16 15

H. 608 AND 609 EVIDENCE 23

1. Defendant CHARLES J. TAN is charged in a three (3) count indictment, filed

District of New York.

2. The Government alleges that CHARLES J. TAN received a Remington Model

shotgun in violations of various statutes.

District Attorneys Office, that this action has commenced.

2015 through the present time on numerous occasions.

A. AN ORDER COMPELLING THE GOVERNMENT TO REVEAL

7. Pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and

A. The name and address of each informant or potential co-defendant;

utilized in this case has previously been utilized as an informant;

C. The case names and numbers of any trials or evidentiary hearings at

which each informant has testified concerning:

(1) his/her own criminal activities;

(2) payments or rewards provided to him/her by the Government;

(3) efforts made to induce others to participate in criminal activity;

(4) Other purported law enforcement related matters;

assisted the Government, and the purpose of each such payment;

E. Any information, whether or not memorialized in a memorandum, agents

report or other writing, regarding promises of immunity or leniency,

preferential treatment or other inducements made to an informant, or to

any family member, friend or associate of an informant in exchange for

the informants cooperation, including, but not limited to: dismissal or

reduction of charges; assistance in matters of sentencing, deportation,

parole or probation; or promises or expectations regarding payments for

expenses or testimony or eligibility for any award or reward;

F. Information or records concerning notification of potential prosecution,

investigation or deportation made by the Government to an informant or

any member of his family;

G. Any report, document or information which details the criminal activities of

each informant which were undertaken by him without the authority or

formally or informally, not to prosecute;

available to the Government reflecting the arrest and conviction history of

I. Shared Inter-Agency Intelligence Reports referencing activities of the