of fact, Salerno has wholly failed to demonstrate any "particularized need" for the grand jury testimony. Salerno's motion for disclosure of grand jury testimony is denied.
Salerno also seeks an order directing the Government to produce instanter all interview notes, memoranda, tapes or transcripts with Salerno's wife. We sustain the Government's objection that rough drafts or handwritten drafts not adopted by the witness are not discoverable under the Jencks Act. See United States v. Starnes, 644 F.2d 673, 680-81 (7th Cir.), cert. denied, 454 U.S. 826, 70 L. Ed. 2d 101, 102 S. Ct. 116 (1981). Moreover, this request appears to be academic based upon the Government's promise to disclose all "final typed or written statements of witnesses in accordance with the Jencks Act." (Government's Response to Defendant's Discovery Motions, p.11). Based on this representation, the Court denies as moot this portion of Salerno's motion.
Finally, we deny Salerno's request for the production of the agents' notes and any other records relating to interviews with defendant. Notwithstanding Salerno's assertion that the 302's were "sketchy", the Government represents that these reports "precisely" reflect the substance of the interviews. Moreover, the Government has complied with its obligations under the Jencks Act, as it transmitted via facsimile, on July 25, 1991, the 302 reports to defense counsel. This portion of Salerno's motion is denied as moot.
XII. Motion for Production of Expert Opinions and Supporting Data
In this motion, Salerno requests, again without citation to any authority or rule, that the Court order the Government to provide him with the opinion testimony and names of any expert witnesses upon which the Government intends to rely, as well as, a list of the texts or authorities relied upon for said opinions. In addition, Salerno asks for copies of exhibits or other data reflecting said expert opinions.
The Government opposes the request, responding that it has no obligation to disclose names of prospective witnesses unless defendant "shows that such disclosure is both material to the preparation of the defense and reasonable in light of all the circumstances." (Government's Response to Defendant's Discovery Motions, p.12). As Salerno has neither established materiality nor reasonableness, this portion of his request is denied.
Moreover, the Government represents that in compliance with its obligations under Federal Criminal Rule 16(1)(D) and Local Rule 2.04, it has previously provided defense counsel with reports of examinations and tests. Further, the Government promises to immediately produce to defendant any additional and newly obtained materials within the purview of these rules. Finally, the Government further represents that if it calls any expert witnesses, it will abide by its obligations under the Jencks Act and disclose the expert witnesses' previous statements. Based on these representations, the Court denies as moot this portion of Salerno's motion.
For the reasons outlined, each of the following motions of Salerno is denied in part because it is moot and in part because Salerno is not entitled to the information requested in it: his motion to require notice of intention to use identification testimony at trial; his motion to require notice of intention to use other crimes, wrongs or acts evidence; his motion for production of union related data; his motion for discovery and inspection; his motion for disclosure of exculpatory evidence; his motion to produce handwritten notes, memoranda and records of interview with defendant and others; and his motion for production of expert opinions and supporting data. Furthermore, each of the following motions of Salerno is denied as moot: his motion in limine regarding the admissibility of co-conspirator declarations; and his motion for preservation of agents' notes. In addition, each of the following motions of Salerno is denied: his motion for a pretrial hearing to determine the admissibility of co-conspirator declarations; his motion to dismiss the indictment; and his motion for leave to file additional motions.
Finally, we conditionally admit the co-conspirator statements offered by the Government under Rule 801(d)(2)(E) of the Federal Rules of Evidence, subject to actual proof of the conspiracy at trial. By the same token, the Government's "other acts" evidence is admissible under Rule 404(b) of the Federal Rules of Evidence.
Date: SEP 18 1991
JAMES H. ALESIA
United States District Judge