USA V Francis Raia, Et Al. Omnibus Motion Filed 2-19-2019

Case 2:18-cr-00657-WJM Document 21-1 Filed 02/19/19 Page 1 of 36 PageID: 99
UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA, Criminal No.: 18-657 (WJM)
Plaintiff,
vs.
FRANCIS RAIA and DIO BRAXTON,
Defendants.
BRIEF ON BEHALF OF DEFENDANT, FRANCIS RAIA,

IN SUPPORT OF PRETRIAL MOTIONS
LAW OFFICES OF ALAN L. ZEGAS

60 Morris Turnpike
Third Floor West
Summit, New Jersey 0790 1
( 0 ) 973-379-1 999
On the Brief.' (F) 973-379-1998
Alan L. Zegas, Esq. 02133-1981 Attorneys for Defendant, Francis Raia
TABLE OF CONTENTS
Table of Cases and Other Authorities ...........................................................................................

111
...
Statement of Facts ...........................................................................................................................1
Point One ........................................................................................................................................

2
A BILL OF PARTICULARS IS NEEDED BY DEFENDANT IN

ORDER TO ALLOW HIM TO PREPARE HIS DEFENSE AND TO
ENSURE HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS.
Point Two ........................................................................................................................................5
THE GOVERNMENT MUST FORTHWITH TURN OVER TO

DEFENDANTS ALL "BRADY AND "GIGLIO" MATERIAL OR
THE INDICTMENT MUST BE DISMISSED
Point Three ....................................................................................................................................10
DEFENDANT IS ENTITLED TO A PRELIMINARY HEARING ON

ANY EVIDENCE OF OTHER CRIMES, WRONGS OR ACTS THAT
THE GOVERNMENT INTENDS TO INTRODUCE INTO
EVIDENCE AT TRIAL AGAINST HIM
Point Four .....................................................................................................................................

12
THE GOVERNMENT SHOULD BE COMPELLED TO PRESERVE

ALL ROUGH NOTES, REPORT DRAFTS, AND FINAL REPORTS
PREPARED BY ANY GOVERNMENT AGENT OR WITNESS IN
CONNECTION WITH THE INVESTIGATION WHICH
CULMINATED IN THE INDICTMENT AGAINST DEFENDANT
Point Five ......................................................................................................................................

13
DEFENDANT SHOULD BE GIVEN ACCESS TO THE GRAND

JURY TRANSCRIPTS IN ORDER TO EVALUATE THE
INTEGRITY OF THE PROCESS AND TO IDENTIFY FOR THE
COURT ANY IRREGULARITIESTHAT MAY HAVE OCCURRED.
Point Six ........................................................................................................................................17
THE GOVERNMENT SHOULD BE REQUIRED TO DISCLOSE TO

DEFENDANT THE NAMES OF ALL INFORMANTS USED IN ITS
INVESTIGATION.
Point Seven ...................................................................................................................................18
PURSUANT TO FED. R. CRIM. P. 17(C), DEFENDANT SHOULD

BE AFFORDED THE RIGHT TO SERVE DOCUMENTARY
SUBPOENA REQUESTS ON ENTITIES AND PERSONS WHO
MAY HAVE INFORMATION GERMANE TO HIS DEFENSE.
Point Eight ....................................................................................................................................20
ANY POST-CONSPIRACY OR POST-ARREST STATEMENTS

MADE BY CO-DEFENDANT BRAXTON, LIZAIDA CAMIS, OR
ANY ALLEGED CO-CONSPIRATOR OF DEFENDANT TO THE
GOVERNMENT, WHICH REFER TO DEFENDANT, MUST BE
SUPPRESSED UNDER BRUTON V. UNITED STATES.
Point Nine .....................................................................................................................................23
DEFENDANT SHOULD BE SEVERED FROM CO-DEFENDANT

BRAXTON, AND BRAXTON SHOULD BE IMMUNIZED BY THIS
COURT SO HE MAY OFFER EXCULPATORY TESTIMONY
ABOUT DEFENDANT.
Point Ten .......................................................................................................................................

24
THE GOVERNMENT MUST BE ORDERED TO SUPPLY

DEFENDANT WITH A WITNESS LIST.
Point Eleven ..................................................................................................................................

25
DEFENDANT HEREBY INCORPORATES BY REFERENCE ALL

THOSE FACTUAL AND LEGAL ARGUMENTS, WHICH HAVE
BEEN RAISED BY DEFENDANT'S CO-DEFENDANT, AND
WHICH ARE NOT INCONSISTENT WITH DEFENDANT'S
RIGHTS. HE SEEKS LEAVE TO JOIN IN ALL SUCH MOTIONS.
Conclusion ....................................................................................................................................
26
TABLE OF CASES AND OTHER AUTHORITIES
Bowman Dairy Co. v. United States,

341 U.S. 214 (1951)
cert. denied, 369 U.S. 828 (1962). ................................................................................................19
Brady v. Maryland,
373 U S . 83 (1963) .........................................................................................................................
5, 18
Branzburg v. Hayes,
408 U.S. 665 (1972) ......................................................................................................................13
Bruton v. United States,

391 U.S. 123 (1968) ......................................................................................................................
20
California v. Trombetta,
467 U.S. 479 (1984) ......................................................................................................................
18
Carter v. Rafferty,
826 F.2d 1299 (3d Cis. 1987)..........................................................................................................
8
Costello v. United States,

350 U.S. 359 (1956) ......................................................................................................................
13
Dennis v. United States,

384 U S . 855 (1966) .....................................................................................................................
16, 17
Douglas Oil Company v. Petrol Stows Northwest,

441 U.S. 211 (1979) .....................................................................................................................
15, 16
Giglio v. United States,

405 U. S. 150 (1972) ......................................................................................................................
5. 6, 8
Government of the Virgin Islands v. Smith,

6 15 F.2d 694 (3,rd Cis. 1980) .........................................................................................................24
Gray v. Maryland,
523 U.S. 185 (1998) ......................................................................................................................
20
Huddleston v. United States,

485 U.S. 681 (1988)......................................................................................................................
11
In re Martin Marietta Corp.,

856 F.2d 619 (4th Cir. 1988) ........................................................................................................
19
...
Ill
Landano v. Rtiffesty,
670 F. Supp. 570 (D.N.J. 1987) .....................................................................................................8
Pittsburgh Plate Glass Company v. United States,

360 U.S. 395 (1959) .....................................................................................................................15, 17
Riggs v. United States,

280 F.2d 750 (5th Cis. 1960) ........................................................................................................11
Roviaro v. United States,

353 U.S. 53 (1957) ........................................................................................................................ 18
Stirone v. United States,

361 U.S. 212 (1960) ......................................................................................................................13
United States v. Addonizio,

451 F.2d 49 (3d Cis.),
denied, 405 U.S. 936 (1972) ....................................................................................................
cert. -
- 3 , 24
United States v. Agurs,

427 U.S. 97 (1 976) ........................................................................................................................18
United States v. Almad,

53 F.R.D. 194 (M.D. Pa. 1971)........................................................................................................4. 5
United States v. Ammar,

714 F.2d 238 (3d Cis.),
cert.
-- denied, 464 U.S. 936 (1 983) .................................................................................................12
United States v. Bagley,

437 U.S. 667 (1985) ........................................................................................................................8
United States v. Baum,

482 F.2d 1325 (2d Cis. 1973).......................................................................................................10, 1 1
United States v. Birdman,

602 F.2d 547 (3d Cir. 1979)..........................................................................................................
15
United States v. Bostnovsky,

820 F.2d 572 (2d Cis. 1987)............................................................................................................
5
United States v. Calandra,

414 U.S. 338 (1974) ......................................................................................................................
ft/I
13
United States v. Canalenson,

546 F.2d 309, 3 14 n.3 (9th Cir. 1974),
cert.
-- denied, 430 U.S. 918 (1977) .................................................................................................
12
United States v. Carcaise,

442 F. Supp. 1209 (M.D. Fla. 1978) .............................................................................................
15
United States v. Climatemp. Inc.,

482 F. S~lpp.376 (N.D. Ill. 19791,
. . .......................................................................................24
United States v. Cuthbestson,
630 F.2d 139 (3d Cis. 1980)..........................................................................................................19
United States v. Davidoff,

845 F.2d 1151 (2d Cis. 1988)..........................................................................................................4
United States v. DeMarco,

550 F.2d 1224 (9th Cir. 1977) ......................................................................................................15
United States v. DiGrazia,

213 F. Supp. 232 (N.D. 111. 1963) .................................................................................................15
United States v. Dionisio,

410 U.S. 1 (1973) .......................................................................................................................... 13
United States v. Estepa,

471 F.2d 1132 (2d Cis. 1972)....................................................................................................... 13, 14
United States v. Flecha,

442 F. Supp. 1044 (ED. Pa. 1977),
affd without a, 577 F.2d 729 (3d Cis. 1978) .............................................................................
10
United States v. Glaze,

3 13 F.2d 757 (2d Cis. 1963)............................................................................................................3
United States v. Gold,

470 F. Supp. 1336 (N.D.111. 1979) ...............................................................................................14, 15
"I "I
United States v. 1-Iiggs,

713 F.2d 39 (3d Cis. 1983)..............................................................................................................8
United States v. Himnandez-Berceda,

572 F.2d 680 (9th Cis. 1978) ........................................................................................................
18
United States v. Hodge,

496 F.2d 87 (5th Cis. 1974) .......................................................................................................... 14
United States v. Hogan,

712 F.2d 757 (2d Cis. 1983).........................................................................................................13, 14, 15
United States v. Holman,

490 F. Supp. 755 (E.D. Pa. 1980) ...................................................................................................4
United States v. Hubbard,

474 F. Supp. 64 (D.D.C. 1979) .......................................................................................................
4
United States v. Hughes,

195 F. Supp. 795 (S.D.N.Y. 1961) .................................................................................................4
United States v. Kelly,

420 F.2d 26, 29 (2d Cis. 1969)......................................................................................................
11
United States v. Lavalee,

290 F. Supp. 90 (N.D.N.Y. 1968) ................................................................................................22, 23
United States v. Lebovitz,

669 F.2d 894, 901 (3d Cir.),
denied, 454 U.S. 929 (1982) .......................................................................................
cert. -
-
United States v. Mahoney,

495 F. Supp. 1270 (E.D. Pa. 1980). .............................................................................................
16
United States v. Malizia,

154 F. Supp. 51 1 (S.D.N.Y. 1951),
denied, 449 U.S. 1 126 (198 1) ...............................................................................................19
cert. -
-
United States v. Mannino,

480 F. Supp. 1 182 (S.D.N.Y. 1979) ................................................................................................
4
United States v. McKay,

70 F. Supp. 2d 208 (E.D.N.Y. 1999) ...........................................................................................
2 1, 22
United States v. McManus,

560 F.2d 747 (6th Cis. 1977),
cert.
-- denied, 434 U.S. 1047 (1978) ...............................................................................................17
United States v. Morrison,

518 F. Supp. 917 (S.D.N.Y. 1981) ............................................................................................... 15
United States v. Murray,

297F.2d 8 12 (2d Cis.) ...................................................................................................................19
United States v. Narciso,

446 F. Supp. 252 (ED. Mich. 1977).............................................................................................11
United States v. Niederberger,

580 F.2d 63 (3d Cis.),
cert. denied 439 U.S. 980 (1978) ..................................................................................................
?- -
12
United States v. O'Connor,

237 F.2d 466, (2d Cis. 1955)...........................................................................................................3
United States v. Opager,

589 F.2d 799 (5th Cir. 1979) ........................................................................................................17
United States v. Procter & Gamble,

356 U.S. 677 (1958) ......................................................................................................................17
United States v. Reliable Sheet Metal Works. Inc.,

705 F.2d 461 (7th Cis. 1983) ........................................................................................................24
United States v. Richards,

241F.3d 335,341 (3d Cir.),
^
cert. denied, 533 U.S. 960 (2001) .................................................................................................21
Â¥"
United States v. Roberts,

481 F. Supp. 1385 (C.D. Calif. 1980) ...........................................................................................
15
United States v. Rogers,

Criin. No. 84-335, Slip Op., (D.N.J. May 17, 1985) .....................................................................9
United States v. Samango,

607 F.2d 877 (9th Cis. 1979) ......................................................................................................
14, 15
United States v. Serubo,

604 F.2d 807 (3d Cis. 1979).........................................................................................................14, 15
United States v. Silva,

580 F.2d 144 (5th Cir. 1978) ........................................................................................................18
United States v. Smith,

16 F.R.D. 372 (D.C.W.D. Mo. 1954) .............................................................................................
3
vii
United States v. Socony-Vac~iuniOil Co.,

310 U.S. 150 (1940) ......................................................................................................................
16
United States v. Starusko,

729 F.2d 256 (3d Cis. 1984)............................................................................................................9
United States v. Testainark,

570 F.2d 1162 (3d Cir. 1978)........................................................................................................12
United States v. Toinison,

969 F. Supp. at 593, n.14. .............................................................................................................19
United States v. Treadway,

445 F. Supp. 959 (N.D. Tex. 1978) ..............................................................................................15
United States v. Vella,

562 F.2d 275 (3d Cis. 1977)..........................................................................................................
12
United States v. Wali,

860 F.2d 588 (3d Cis. 1988). ....................................................................................................... 16
United States vxJWilliains,

113 F.R.D. 177 (M.D. Fla. 1986) ...................................................................................................4
U.S. Industries, Inc. v. United States District Court,

345 F.2d 18 (9th Cir.),
cert.
-- denied, 382 U.S. 814 (1965) .................................................................................................
15
Wood v. Georgia,
370 U.S. 375 (1962) ......................................................................................................................
13
RULES
Rule 404(b) ...................................................................................................................................

10
Rule 104 ........................................................................................................................................10
Fed. R. Crim. P. 6(e)(3) ................................................................................................................15
...
Vlll
OTHER AUTHORITIES
Gershman, Prosec~ito'ial Misconduct Sec. 2.2(b) (1986) .............................................................14
The Exercise of Supervisory Powers to Dismiss a Grand Jury Indictment--A Basis for
Curbing Prosecutorial Misconduct,
45 Ohio State L.J. 1077 (1984) .....................................................................................................14
Grand Jury Proceedings: The Prosecutor, the Trial Judge. and Undue Influence,
39 U. Chicago L,. Rev. 761 (1972) ...............................................................................................
14
The Supervisory Power of the Federal Courts,

76 Harv. L. Rev. 1658 (1 963) .......................................................................................................14
United States Constitution, Amendment V ...................................................................................13

Statement of Facts
The indictment charges defendant, Frank Raia, and co-defendant, Dio Braxton, with a
conspiracy to commit mail fraud in connection with Hoboken's November 5. 2013, municipal
election. According to the indictment, Raia, a resident of Hoboken, was a candidate for the
Hoboken City Council, running as part of a slate that included other candidates for the Council,
as well as a candidate for Mayor. Raia was also the chairperson of a political action committee.
The indictment alleges that the ballot for the November 5, 2013 election included a
referendum on whether Hoboken should maintain its existing rent control protections. Raia
allegedly supported a "yes" vote on the referendum.
The defendants are alleged to have conspired, along with unidentified "others" to bribe
voters by paying them to apply for and cast their mail-in ballots in support of the Slate and in
favor of the rent control referendum. Some voters allegedly received ballots by U.S. mail. The
indictment alleges that, at Raia's direction, Braxton and others promised voters, "including Voter
1, Voter 2, and Voter 3, that they would be paid approximately $50 by check if they submitted a
mail-in ballot for the November 5 Election.'' A PAC, allegedly at Raia's direction, paid a
company to print checks for voters.
Defendant maintains that he committed no offense. Any payments made were to persons
working for Defendant's campaign.

Point 1
A BILL OF PARTICULARS IS NEEDED BY DEFENDANT IN ORDER TO

ALLOW HIM TO PREPARE HIS DEFENSE AND TO ENSURE HIS
RIGHT TO A FAIR TRIAL AND DUE PROCESS.
Defendant is entitled to a bill of particulars because the indictment does not provide him
with sufficient notice of the charges to defend himself. The indictment alleges that defendant
conspired with '"others," without identifying who the "other" co-conspirators are. The
indictment also charges, at its core, that three unidentified voters were promised they would be
paid $50 by check if they submitted mail-in ballots for the November 5 election. Whether the
U.S. mails were used in connection with their votes is not specified. Knowing whether these
unidentified voters used the mails is a critical element of the mail fraud violation charged in the
indictment. 18 U.S.C., Section 1952(a)(3). The indictment specifically notes that certain persons
did not use the mails, but instead had their vote-by-mail applications delivered to the Clerk's
Office. Nowhere in the indictment does it specify the dates on which the allegedly unlawful acts
were committed.
The failure of the indictment to provide such minin~alinformation as the identities of the
voters, the identity of the participants in the offenses alleged, the specific dates on which the
offenses allegedly occurred, the places where the offenses occurred, the identity of each specific
wrongful act attributed to defendant, and the actual harm effect by defendant's conduct
substantially undern~inesdefendant's ability to prepare a defense. This failure to particularize the

charges against defendant, deprives hiin of his Sixth Amendment right to a fair trial, and of his
Fifth Amendment right to due process.
Clearly, greater specificity than that which has been supplied is required of the
goveriunent. Rule 7(f) of the Federal Rules of Criminal Procedure specifically permits the Court
to order that a Bill of Particulars be provided:
(f) Bill of Particulars: The court may direct the filing of a bill of par-
ticulars. A motion for a bill of particulars may be made before arraignment or
within ten days after arraignment or at such later time as the court may permit. A
bill of particulars may be amended at any time subject to such conditions as
justice requires.
The foregoing rule is to be "liberally interpreted" to enable the accused to meet the
charges against him. United States v. O'Connor, 237 F.2d 466, 475-76 (2d Cis. 1955). The
purpose for requiring a bill of particulars to be provided was recognized by the Third Circuit in
United States v. Addonizio, 451 F.2d 49,63-64 (3d Cis,), cert. denied, 405 U.S. 936 (1972):
The purpose of the bill of particulars is to inform the defendant of the

nature of the charges brought against him to adequately prepare his defense, to
avoid surprise during the trial and to protect him against a second prosecution for
an inadequately described offense.
It is not enough, in refusing to require a bill of particulars, merely to find that such a bill
is not needed because the indictment sets forth the "bare minimum" of the elements of the
offense charged. United States v. Glaze, 3 13 F.2d 757, 761 (2d Cis. 1963). Nor is it sufficient to
hypothesize that the defendant was aware of his wrongful acts and that therefore only minimum
notice is required in the indictment to remind him of his wrongdoing; such speculation is
inconsistent with the presumption of defendant's innocence. United States v. Smith, 16 F.R.D.
372,374-75 (D.C.W.D. Mo. 1954). As the Court in Smith noted:
Being presumed to be innocent, it must be assumed 'that he [the

defendant] is ignorant of the facts on which the pleader founds his charges. This
conclusion seems to me to be elementary, fundamental and inescapable.'
Id. at 375 (citation omitted).

-
There is no reason why the government, if it can support its charges, should not be
required to identify each of the three alleged voters who were allegedly bribed in exchange for
their votes, and whether they used the United States mail. The government must supply
sufficient information so that defendant will have notice of every wrongful act that the
government intends to prove against him, the places where each alleged wrong occurred, the
means by which each alleged offense was accon~plished,the names of the persons who
participated in each wrong alleged, the precise dates of each offense, and the actual harm caused
by each wrong alleged. Courts have routinely required the government to supply to defendants
the identities of all pasticipants in the particular offense charged. See, eg., United States v.
Williams, 113 F.R.D. 177 (M.D. Fla. 1986) (directing that the identity of all unindicted co-
conspirators required); United States v. Maimino, 480 F. Supp. 1182 (S.D.N.Y. 1979) (directing
government to provide identity of co-conspirators); United States v. Hubbard, 474 F. Supp. 64
(D.D.C. 1979) (directing government to provide identity of co-conspirators); United States v.
Ahinad, 53 F.R.D. 194 (M.D. Pa. 1971) (directing govemn~entto specifically identi@ all
conspiratorial acts).
The need for such basic information as the names of the three voters whose names are not
specified, whether they used the United States mail, the identities of persons allegedly
participating with defendant, the specification of all wrongful acts, and the dates of all wrongful
acts alleged is particularly critical here so that defendant can investigate all necessary avenues of
defense and effectively develop responses to the government's charges. Because a separate rule
of evidence applies to co-conspirator statements, defendant is entitled to know the identities of
any "unindicted co-conspirators", who are referred to as such in the indictment.
Defendant is also entitled to know specifically when he allegedly exercised corrupt undue
influence. The indictment, rather than supplying such minimal information, merely alleges that
the various offenses occurred over a span of time. Other courts have recognized the need for
specific dates and have ordered the prosecution to disclose SLIC~Iinforination. See, e.,cz.. United
States v. Holman, 490 F. Supp. 755, 762 (ED. Pa. 1980) ("the exact date and place, if known to
the Government, of each event alleged in the indictment"); United States v. Ahmad, 53 F.R.D.
194, 201 -03 (M.D. Pa. 1971) (date, time and place of meetings); United States v. Hughes, 195 F.
Supp. 795, 800 (S.D.N.Y. 1961) (date of each purchase in fraud case).
It is also crucial that defendant be advised whether the wrongful acts alleged in the
indictment are the only offenses which the government intends to prove at trial. It will be
difficult enough for defendant to investigate the specific offenses charged, without also having to
be surprised at trial by proofs relating to offenses not even alleged in the indictment. See. ex.,
United States v. Ahmad, 53 F.R.D. 194 (M.D. Pa. 1971). See also United States v. Davidoff.
845 F.2d 1 151 (2d Cis. 1988) (conviction reversed where bill of particulars denied); United
States v. Bortnovsky, 820 F.2d 572 (2d Cis. 1987) (conviction reversed where court abused
discretion in denying bill of particulars).
Because vital information necessary for defendant's defense is missing from the
indictment, defendant requests that this Court order the government to supply a bill of particulars
setting forth, among other things, the specific wrongs committed, the date of each wrongful act
alleged, whether the mails were used with respect to each such act, any statements defendant is
alleged to have made that are inculpatory or that are in furtherance of the conspiracies alleged,
the place of each offense, the names and addresses of any persons participating in or witnessing
each of the alleged offenses, and the means by which the alleged offenses were accon~plished.
Point 2
THE GOVERNMENT MUST FORTHWITH TURN OVER TO

DEFENDANTS ALL "BRADY AND "GIGLIO" MATERIAL OR THE
INDICTMENT MUST BE DISMISSED
This Court's scheduling order requires the Government to provide "exculpatory evidence,
within the meaning of Brady v. Maryland, 373 U.S. 83 (1963)'' The Government's obligations
to supply directly exculpatory inforn~ationunder Brady also encompasses information in the
Government's possession that is impeaching of Government witnesses. Giglio v. United States,
405 U. S. 150 (1972).
Although certain exculpatory information has been produced by the Government to the
defendant, there is likely more, including impeachment information under Giglio v. United
States, 405 U.S. 150 (1972). In Giglio. the Supreme Court ordered a new trial because the
government failed to disclose to defense counsel an imn~unityagreement which had been entered
into by the prosecution wit11 a critical government witness. After citing Bra& for the proposition
that irrespective of the prosecutor's good faith, the suppression of material evidence by the
prosecution justifies a new trial, the Court stated:
When the 'reliability of a given witness may well be determinative of guilt or

innocence,' nondisclosure of evidence affecting credibility falls within this
general rule. @. at 154
The Court then noted:
Here the Governnlent's case depended almost entirely on Taliento's testimony;

without it there could have been no indictnlent and no evidence to carry the case
to the jury. Taliento's credibility as a witness was therefore an important issue in
the case, and evidence of any understanding or agreen~ent as to a future
prosecution would be relevant to his credibility and the jury was entitled to know
of it. @. at 154-55
The indictment against defendant makes reference to Lizaida Camis. Defendant has
reason to believe that Ms. Camis entered into a plea agreement with the government, signed a
cooperation agreement, and testified before the grand jury. Defendant has not been supplied
with any materials relating to plea or cooperation agreements with respect to Ms. Camis, nor
with any grand jury testimony.
Other witnesses, such as the three unidentified voters who were allegedly paid $50
apiece, were believed to have worked on Defendant's campaign and were paid for their work,
not their votes. The strength of the Government's case against defendant will strongly depend
upon the credibility of the Government's witnesses. With respect to each Government witness,
defendant is entitled to receive copies of the following: any inconsistent statements given by the
witness; any testimony of the witness before the grand jury; any statements exculpatory of
defendants made by the witness; any transcripts from prior trials; any surveillance reports or
surveillance notes reflecting statements of the witness inconsistent with the witness's conduct or
inconsistent with other statements made by the witness; any FBI-302 reports reflecting
inconsistencies in the statements of the witness; any other interview notes of agents of
Government attorneys reflecting statements of the witness that are inconsistent or exculpatory of
defendants; any statements of the witness inconsistent with the statement of any other witness;
questions and answers given by the witness during a polygraph examination; any materials
reflecting the witness's bias, motive or prejudice against defendants; psychiatric reports
concerning the witness, which reflect a mental or emotional problem of any kind or which reflect
an inconsistency in statements made by the witness; confessions of the witness; records of
participation in the federal witness protection program, including a complete description of any
benefits received by the witness; records of any monies paid by the Government to the witness
for any purpose; evidence of any promises made by the Government to the witness; evidence of
any threats made by the Government to the witness; evidence of any benefits conferred by the
Governn~entupon the witness; federal, state, local and foreign criminal histories of the witness;
evidence of other "wrongs or bad acts" of the witness; records of any convictions or of sentences
received or of a reduction in any sentence received by the witness: plea agreements between the
witness and any federal, state. local or foreign Governmental agency: immigration records of the
witness; plea transcripts concerning the witness; sentencing transcripts concerning the witness;
cooperating agreements with the witness; the names and docket numbers of other cases in which
the witness has testified; immunity agreements and orders relating to the witness; and evidence
of crimes where no formal proceedings were instituted as a result of the cooperation of the
witness. To the extent that such information exists, defendants are entitled to the production of
the material immediately, pursuant to this Court's standing order.

If, in response to this motion, the Government seeks to draw a distinction between
evidence which is directly exculpatory and evidence which could be used to impeach the
credibility of critical Government witnesses, this Court must reject such an explanation as
artificial and unreasoned. Such a distinction, if urged by the Government, is one which has been
squarely rejected by decisions of the United States Supreme Court and of the United States Court
of Appeals for the Third Circuit.
In United States v. Bagley, 437 U.S. 667 (1985): the Supreme Court specifically noted
that the distinction between materials directly affecting the guilt or innocence of a criminal
defendant and materials affecting the credibility of crucial government witnesses was spurious:
In Bradv and A p s , the prosecutor failed to disclose exc~~lpatory

evidence. In the present case, the prosecutor failed to disclose
evidence that the defense might have used to impeach the
Government's witnesses by showing bias or interest.
Impeachment evidence, however, as well as exculpatory
evidence, falls within the Brady rule. at 490 (emphasis
supplied).
Similarly, in Carter v. Rafferty, 826 F.2d 1299, 1305 (3d Cir. 1987), the Third Circuit
held that "in addition to exculpatory evidence, the "Bradv ride covers evidence that might be
See also Landano v. Raffesty, 670 F. Supp. 570, 584 (D.N.J.

used,for impac/7inen/ pz~~~uoses."
1987) ("The Brady rule has been extended to include inlpeachn~ent evidence as well as
exculpatory evidence.").
In United States v. Higgs, 713 F.2d 39 (3d Cis. 1983), the Third Circuit again recognized
that the Brady doctrine mandates disclos~~re

of impeachn~entevidence. Citing G i ~ l i othe
, Court
stated:
The rule laid out in Brady requiring disclosure of exculpatory

evidence applies both to materials going to the heart of the
defendant's guilt or innocence and to materials that might well alter
the jury's judgment of the credibility of a crucial prosecution

witness. Id.at 42.
In United States v. Starusko, 729 F.2d 256 (3d Cis. 1984), the Third Circuit specifically
recognized that it was this Circuit's "longstanding policy" to encourage the "early production" of
B r a d materials. Id.at 26 1.
Under the Jencks Act, 18 U.S.C. Sec. 1500, witness statements are not required to be
produced by the Government until after the witness testifies. Despite that rule, most courts in
this District requite pretrial disclosure of Jencks Act materials in order to avoid undue delay at
trial prompted by a defendant's request to investigate a freshly disclosed witness statement.
Should the Government, in response to this motion, contend that witness statements which
simultaneously fall within the purview of Giglio and the Jencks Act, 18 U.S.C. 5 1500, are not
subject to pretrial disclos~~re,

that argument has been specifically rejected in this District. United
States v. Rogers. Crim. No. 84-335, Slip Op., (D.N.J. May 17, 1985). Moreover, the various
Third Circuit decisions cited herein acknowledge the salutary practice of the District Courts
within this Circuit to encourage the early production of discovery materials. Finally, because the
rule of Giglio is coi~stit~itionally

compelled, the timing of the turnover of such materials is
governed by the Fifth and Sixth Amendment requirements of due process and of a fair trial,
rather than by the arbitrary times established by statute.
Not only is defendant entitled to the immediate prod~~ction

of Brady, Gidio and Jencks
materials by the Governn~ent,but he is also entitled to those materials in a usable form. For
example, to the extent that critical Governn~entwitnesses have testified at previous trials where
their credibility was either drawn into question or was impeached, defendant is entitled to
transcripts of the witnesses' prior testimony.

Defendant has strong reason to believe that the Government is in possession of
information that is directly exculpatory of him or impeaching of Government witnesses. The
Government has an immediate obligation to supply all such information to defendant.
Point 3
DEFENDANT IS ENTITLED TO A PRELIMINARY HEARING ON ANY

EVIDENCE OF OTHER CRIMES, WRONGS OR ACTS THAT THE
GOVERNMENT INTENDS TO INTRODUCE INTO EVIDENCE AT
TRIAL AGAINST HIM
Defendant is entitled to have the Government disclose all Rule 404(b) evidence that it is
seeking to introduce at trial. Rule 404(b) permits this Court, under certain circumstances, to
admit evidence or evidence of "other crimes, wrongs or acts'" that fit the standard articulated in
the Rule. Rule 404(b) must be read in conjunction with Rule 104 of the Federal Rules of
Evidence. Under Rule 104, this Court is required to make a preliminary detern~inationon the
admissibility of any evidence of other crimes, wrongs or acts that the government intends to
introduce at trial pursuant to Evidence Rule 404(b). In light of this Court's duty to make a
preliminary determination of the admissibility of any proffered Rule 404(b) evidence, defendant
would respectfully request that the Court order the government to provide a detailed proffer of
any evidence it seeks to have admitted under the rule, and to explain why it believes the evidence
is admissible and for what purpose. & United States v. B~LI~II,
482 F.2d 1325, 133 1-32 (2d Cis.
1973); United States v. Flecha, 442 F. Supp. 1OM, 1046 (ED. Pa. 19771, a without , . JO 577
F.2d 729 (3d Cis. 1978).
Pretrial disclosure of Rule 404(b) evidence is vital not only for defendant to investigate
the evidence identified but also to argue effectively against the evidence in his opening statement
to the jury. Early determinations of the admissibility of "other crimes" evidence serves the
sal~itarypurpose of avoiding unnecessary delay d~iringtrial. & United States v. Baun~,482

F.2d 1325, 1332 (2d Cis. 1973). See also Riggs v. United States? 280 F.2d 750, 753 (5th Cis.
1960) (condeinning conceal~nentuntil trial of prior bad act not disclosed in iildict~nent);United
States v. Kelly, 420 F.2d 26, 29 (2d Cir. 1969) (pretrial disclosure avoids "trial by ambush"). Of
necessity, such evidence must be weighed by this Court at trial against the danger that it would
create "unfair prejudice" to the trial of defendant. United States v. Lebovitz, 669 F.2d 894, 901
(3d Cis.)? cert. denied, 454 U.S. 929 (1982).
In United States v. Baum, 482 F.2d 1325 (2d Cis. 1973), a conviction was reversed and a
new trial was ordered because the defendant had not been given an opportunity in advance of
trial to prepare to rebut "other crimes evidence" that the government intended to introduce.
Defendant's motion for disclosure of names, addresses and phone numbers of government
witnesses was denied before trial. Id.at 1329. The Court held that the nature of the evidence of
other crimes in the case "required that the defense be given a fair opportunity to meet it." Id.at
1331. Admission of the highly charged evidence of similar criminal acts, which neither the trial
judge nor defendant had seen in advance, unfairly surprised the defendant, requiring a new trial.
Id. at 1331-32.
- See also United States v. Narciso? 446 F. Supp. 252 (ED. Mich. 1977)
(government required prior to trial to provide identities of victims of defendant's other crimes).
The Supreme Court has established guidelines for the District Courts to follow before
admitting other crimes evidence. ae.g. H~iddlestonv. United States, 485 U.S. 681 (1988).
Because any evidence of "other crimes" introduced by the government will likely require
substantial investigation by defendant, it is respectfully submitted that this Court must order the
detailed disclosure of such information immediately if defendants are to receive a fair trial.
Point 4
THE GOVERNMENT SHOULD BE COMPELLED TO PRESERVE ALL

ROUGH NOTES, REPORT DRAFTS, AND FINAL REPORTS PREPARED
BY ANY GOVERNMENT AGENT OR WITNESS IN CONNECTION WITH
THE INVESTIGATION WHICH CULMINATED IN THE INDICTMENT
AGAINST DEFENDANT
Defendant requests that this Court enter an order directing the government to preserve all
rough notes, interview notes, report drafts and final reports that were prepared by any federal,
state or local government agent in connection with the investigation that led to this indictment.
These notes must be preserved because some of the notes might not only exculpate defendant
directly, but would be material to the cross-examination of various government witnesses. In
United States v. V e h , 562 F.2d 275 (3d Cir. 1977), the Third Circuit held:
The rough interview notes of FBI agents should be kept and produced so
that the trial court can determine whether the notes should be made available to
the [defense] under the rule of Brady v. Maryland, 373 U.S. 83 (1963), or the
Jencks Act.
See also United States v. Niederberger, 580 F.2d 63, 71 (3d Cis.), cert. denied, 439 U.S. 980
--
(1978); United States v. Canalenson, 546 F.2d 309, 314 11.3 (9th Cir. 1974), cert. denied, 430
U.S. 918 (1977).
The category "rough notes," in addition to encompassing rough interview notes, also
encompasses handwritten drafts of agents' reports. The government has an obligation to retain
and, upon motion, to make available to the Court both the rough notes and the drafts of reports of
its agents to determine whether they sllould be disseminated to defendants. % United States v.
Ammar, 714 F.2d 238, 259 (3d Cis.), cert. denied, 464 U.S. 936 (1983). The governn~ent's
failure to protect and preserve evidence may, depending upon the circumstances, constitute
grounds for reversal. & United States v. Testamark, 570 F.2d 1162, 1 165 (3d Cis. 1978).
For all these reasons, the government should be instructed to preserve the rough notes,
rough interview notes, draft reports and final reports of all of the federal, state and local
government's agents involved in the investigation that culminated in this indictment against
defendant.
Point 5
DEFENDANT SHOULD BE GIVEN ACCESS TO THE GRAND JURY

TRANSCRIPTS IN ORDER TO EVALUATE THE INTEGRITY OF THE
PROCESS AND TO IDENTIFY FOR THE COURT ANY
IRREGULARITIES THAT MAY HAVE OCCURRED.
Under the Fifth Amendment to the United States Constitution, an accused is guaranteed
the right be indicted by a grand jury before being required to stand trial:
No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictn~entof a Grand Jury . . ..
United States Constitution, Amendment V.

When the framers of the Constitution included the foregoing language in the Bill of
Rights "they were not engaging in a mere verbal exercise." United States v. Estepa, 471 F.2d
1132, 1136 (2d Cis. 1972). Rather, they recognized that the grand jury was essential to
implementing "basic liberties." United States v. Hogan, 712 F.2d 757, 759 (2d Cir. 1983). The
grand jury was devised to "provide a fair method for instituting criminal proceedings," Costello
v. United States, 350 U.S. 359, 362 (19561, to serve "as a protector of citizens against arbitrary
and oppressive governn~entalaction," United States v. Calandra, 414 U.S. 338, 343 (19741, and
to assure the "protecti[onl of citizens against unfounded criminal prosecutions." Branzburg v.
y e s , 408 U.S. 665,686 (1972).
In order to accomplish these various purposes, it is essential that the grand jury act
'independently of either prosecuting attorney or judge," Stirone v. United States, 361 U.S. 212,
218 (1960); that it be "independent and informed," Wood v. Georgia, 370 U.S. 375, 390 (1962);
and that it be charged to "clear the innocent, no less than to bring to trial those who may be
guilty." United States v. Dionisio, 410 U.S. 1, 16-17 (1973).
Despite the requirement that the grand jury act independently and that it serve as a buffer
against oppressive governmental action, it has so often become prey to prosecutorial
~nanipulationthat the historic independence of the institution has been compron~ised. United
States v. Hogan, 712 F.2d 757, 759 (2d Cis. 1983). This erosion of the independence of the
grand juiy steins froin the active role that the prosecution plays in thc proceedings. It is the
prosecutor who prepares the indictment, calls and examines witnesses, advises the grand jury as
to the law, and is in attendance throughout the investigation. Id.
Though the prosecutor is actively involved in the proceedings of the grand jusy, he or she
does not have an absolute license to advocate a particular position. Rather, the prosecutor must
act as "an administrator of justice." United States v. Gold, 470 F. Supp. 1336, 1346 (N.D.111.
1979). In that capacity, the prosecutor has the obligation to preserve "the fairness, impartiality,
and lack of biast' of the grand jury. He or she may not inflame the passions of the grand
jurors against any person, See. e.g., United States v. Serubo, 604 F.2d 807, 818 (3d Cir. 1979),
nor may he or she ask gratuitous questions that serve "no other purpose than calculated
prejudice." United States v. Samango, 607 F.2d 877, 883 (9th Cis. 1979).
Where prosecutors have infringed upon the independent functioning of the grand jury,
courts have not hesitated to exercise their supervisory powers in ordering indictments dismissed.
See generally, Gershman, Prosecutorial Misconduct Sec. 2.2(b) (1986); Note, The Exercise of
Supervisory Powers to Dismiss a Grand Jury Indictment--A Basis for Curbing Prosecutorial
Misconduct, 45 Ohio State L.J. 1077 (1984); Note, Grand Jury Proceedings: The Prosecutor, the
Trial Judge, and Undue Influence, 39 U. Chicago L. Rev. 761 (1972) [hereinafter cited as
"Undue Influence"]; Note, The Supervisory Power of the Federal Courts, 76 Harv. L. Rev. 1658
(1963) [hereinafter cited as "Supervisory Power"]. Thus, indictments have been dismissed:
where Courts have found that attenuated hearsay was introduced before the grand jury, United
States v. Hogan, 712 F.2d 757, 761-62 (2d Cis. 1983): United States v. Estepa. 471 F.2d 1132
(2d Cis. 1972); cf. United States v. Hodge, 496 F.2d 87 (5th Cis. 1974) (remanded to determine
whether sworn testimony received at any time); where slanted and suggestive questions were
asked of witnesses, see. e.g., United States v. Hogan, 712 F.2d 757 (2d Cis. 1983); United States
v. Roberts, 481 F. Supp. 1385 (C.D. Calif. 1980); United States v. Samango, 607 F.2d 877, 883
(9th Cis. 1979); where the purpose of questioning was to impugn and discredit a witness, United
States v. DiGrazia, 213 F. Supp. 232, 235 (N.D. 111. 1963): cf.United States v. Serubo, 604 F.2d
807, 8 18 (3d Cis. 1979); where the prosecuting attorney was also a grand j~n-ywitness, United
States v. Gold, 470 F. Supp. 1336, 1346 (N.D. 111. 1979); United States v. Treadway. 445 F.
Supp. 959 (N.D. Tex. 1978); compare United States v. Birdman, 602 F.2d 547 (3d Cis. 1979)
(indictment not dismissed where no prejudice shown); where the prosecutor failed to introduce
exculpatory evidence, United States v. Roberts, 481 F. Supp. 1385 (C.D. Calif. 1980); where the
prosecutor attempted to discourage the exercise of the statutory rights of an individual, United
States v. DeMarco, 550 F.2d 1224 (9th Cis. 1977); where unsworn testimony was introduced,
United States v. Carcaise, 442 F. Supp. 1209 (M.D. Fla. 1978); and where prosec~~torial
neglect
resulted in prejudicial pre-indictment delay, United States v. Morrison, 5 18 F. Supp. 9 17
(S.D.N.Y. 1981).
In each of the foregoing cases in which indictments were dismissed because of
prosecutorial misconduct, the Courts found that the n~isconductconstituted an interference with
the independent functioning of the grand jury. See. e.g., United States v. Hogan, 712 F.2d 757,
762 (2d Cis. 1983).
Although, as a general proposition, the secrecy of grand jury transcripts is maintained,
Rule 6(e) of the Federal Rule of Criminal Procedure does provide for exceptions to the rule.
These exceptions include the use of transcripts to demonstrate colorable claims of grand jury
misconduct, and to support a "particularized need" demonstrated by defendant, which outweighs
the general rule of secrecy. & Fed. R. Criin. P. 6(e)(3). See also Douglas Oil C o n ~ ~ v.
an~
Petrol Stops Northwest, 441 U.S. 211, 218 (1979); Pittsburgh Plate Glass Company v. United
States, 360 U.S. 395, 399 (1959); U.S. Industries. Inc. v. United States District Court, 345 F.2d
18,21 (9th Cis.). cert. denied, 382 U.S. 814 (1965).

In determining the appropriateness of the disclosure requested. this Court is required to

apply the llparticularized need" standard. See. e.z, Dennis v. United States, 384 U.S. 855
(1966). Under this standard, the Court must weigh the need for disclosure of the information
requested against the need for secrecy of grand jury matters. Douglas Oil Company v. Petrol
Stops Northwest, 441 U.S. 21 1, 218 (1979). There is a lesser burden in demonstrating the need
for disclos~~re
as the considerations justifying secrecy become less relevant. One
circumstance under which the need for secrecy is diminished is where, as here, the grand jury has
coinpleted its work. United States v. Socony-Vacuun~Oil Co., 310 U.S. 150, 234 (1940); &
also United
-- States v. Mahonev, 495 F. Supp. 1270, 1272 (ED. Pa. 1980).
In Dennis v. United States, 384 U.S. 855 (1966), the Supreme Court directed the release
of grand jury transcripts where a particularized need, in that case, to cross-examine witnesses,
had been shown. In ordering certain grand jury transcripts to be released to defendants for use in
cross-examination, the Court found that a prior in camera review by the Court was unnecessary.
In so finding, the Court reasoned that "[tlhe determination of what may be useful to the defense
can properly and effectively be made only by an advocate." at 875.
Here, one reason defendant needs the grand jury transcripts is to determine whether the
government had valid grounds to indict him. Defendant needs the inforn~ationto establish that
there was no mail fraud committed and that voters who were paid rendered services to
defendant's campaign. Moreover, to the extent that a co-defendant or unindicted co-conspirator
does not appear at trial, if any information is contained in the grand jury transcripts, which would
impeach the credibility of a co-conspirator who allegedly inculpates defendant, then defendant
would have a right to this information under Rule 806 of the Federal Rules of Evidence. a
United States v. Wali, 860 F.2d 588 (3d Cir. 1988).
The transcripts will also contain the prosecutor's legal instructions to the grand jury. If
these instructions were defective, the grand jury may have indicted defendant based upon a
n~isunderstandingof the law. There is not even an arguable privacy interest in withholding this
information. Unless defendant is given access to the grand jury transcripts, his rights to due
process, to a fair trial, and to the confrontation of witnesses will be infringed. Moreover, he will
be unable to challenge the prosecutor's conduct within the grand jury room which may have
wrongly led to this indictment.
Because unusual circumstances exist that imperil the due process, air trial and
confrontation rights of defendant, a particularized need has been demonstrated that requires
prod~~ction
of the grand j u ~ ytranscripts. Pittsb~~rgh
Plate Glass Co. v. United States, 360
U.S. 395, 400 (1959) (discussing pa~-ticularizedneed standard). See also Dennis v. United
States, 384 U.S. 855, 868-75 (1966); United States v. Procter & Gamble, 356 U.S. 677, 683
(1958). A sufficient factual proffer has been made by defendant to justify the relief sought, and
defendant urges this Court to grant his request to review the grand jury transcripts.
Point 6
THE GOVERNMENT SHOULD BE REQUIRED TO DISCLOSE TO

DEFENDANT THE NAMES OF ALL INFORMANTS USED IN ITS
INVESTIGATION.
Defendant believes that various informants were used by the government in conducting
its investigation, and that some of these persons are not merely informants, but witnesses. With
respect to each informant, defendant requests disclosure of his or her name and last known
address so that a request for an interview can be made. Such disclosure is vital to the protection
of defendant's rights at trial. This is particularly so here because the informants involved may be
critical witnesses to certain events alleged by the government to be criminal. Under these
circumstances, because it is reasonably probable that the informants can give testimony that is
relevant and material to the defense, disclosure is mandated. United States v. McManus, 560
F.2d 747, 751 (6th Cir. 1977), cert. denied, 434 U.S. 1047 (1978). See also United States v.
O ~ a g e r ,589 F.2d 799 (5th Cis. 1979); United States v. Silva, 580 F.2d 144 (5th Cis. 1978):
United States v. Hiinnandez-Berceda, 572 F.2d 680 (9th Cis. 1978).
This Court, in determining whether to require such disclosure, must balance the
defendant's need for the information against the government's asserted need for confidentiality.
Roviaro v. United States, 353 U.S. 53 (1957). It is crucial that the government's informants be
identified so that a proper defense can be prepared. It is respectfully submitted that the balancing
this Court must perform in detern~iningwhether informant information must be released weighs
in favor of defendant and mandates disclosure of the identity of any informant used by the
governnlent against defendants.
Point 7
PURSUANT TO FED. R. CRIM. P. 17(C), DEFENDANT SHOULD BE

AFFORDED THE RIGHT TO SERVE DOCUMENTARY SUBPOENA
REQUESTS ON ENTITIES AND PERSONS WHO MAY HAVE
INFORMATION GERMANE TO HIS DEFENSE.
Defendant seeks an Order pursuant to Fed. R. Crim. P. 17(c), permitting him to serve a
documentary subpoena upon relevant persons and entities in advance of the trial date. As the
United States Supreme Court has held, a criminal defendant has both a constitutional right to
obtain evidence which bears upon the determination of either guilt or punishment and a Sixth
An~ei~dinent
right to process and a Sixth Ainendment right to process. California v.
Trombetta, 467 U.S. 479, 485 (1984) (Due Process Clause of Fourth Amendment requires
prosecution to turn over exculpatory evidence) (citing Brady v. Maryland, 373 U.S. 83, 87
(1963) & United States v. Agurs, 427 U.S. 97, 112 (1976)). Rule 17(c) in~plementsboth the
right to obtain the evidence and to require its production. See In re Martin Marietta Corp, 856
F.2d 61 9, 621 (4th Cis. 1988).
In cases such as the matter at bar, where evidence relevant to guilt or punishn~entis in a
third party's possession and is too massive for the defendant to adequately review unless
obtained prior to trial, pre-trial production through Rule 17(c) is necessary to preserve the
defendant's co~~stitutional
right to obtain and effectively use such evidence at trial. See United
States v. Murray, 297 F.2d 812, 821 (2d Cis.) (interpreting Bowman Dairy Co. v. United States,
341 U.S. 214, 220 (1 95 l), as saying that Rule 17(c) permits pretrial production if it is necessary
for the moving party to use the material as evidence at trial), cert. denied, 369 U.S. 828 (1962).
Rule 17(c) has been recognized as a "convenient and time saving tool for trial preparation."
United States v. Malizia, 154 F. Supp. 5 1 1, 5 13 (S.D.N.Y. 195 I), cert. denied, 449 U.S. 1126
(1981). See also United States v. Cuthbertson, 630 F.2d 139, 144 (3d Cis. 1980) ("Rule 17(c) is
designed as an aid for obtaining relevant evidentiary material that the moving party may use at
trial."). Unlike the Government, the defendant has not had an earlier opportunity to obtain
material by means of a grand jury subpoena, and is entitled to have these documents reviewed
prior to trial. As one court has noted,
The notion that because Rule 16 provides for discovery, Rule 17(c) has no
role in the discovery of documents can, of course, only apply to docun~entsin the
government's hands; accordingly. Rule 17(c) may well be a proper device for
discovering documents in the hands of third parties.
United States v. Tomison, 969 F. Supp. at 593, n.14.
In order to prepare for trial, defendant needs to inspect documents that are not part of the
discovery that has been provided. For the foregoing reasons, defendant respectfully requests
that the Court grant permission to serve subpoena requests in advance of trial and for the
subpoenas to be returnable to defendant's counsel's offices prior to trial.

Point 8
ANY POST-CONSPIRACY OR POST-ARREST STATEMENTS MADE

BY CO-DEFENDANT BRAXTON, LIZAIDA CAMIS, OR ANY ALLEGED
CO-CONSPIRATOR OF DEFENDANT TO THE GOVERNMENT,
WHICH REFER TO DEFENDANT, MUST BE SUPPRESSED UNDER
BRUTON V. UNITED STATES.
Dio Braxton, the co-defendant of Defendant Raia, made various statements about
defendant Raia to the Government. Braxton testified before the grand jury and he had given to
Government investigators statements that post-dated the conspiracy. Similarly, Lizaida Camis,
who is referred to in the indictment and is likely an unidentified co-conspirator of defendant, is
believed to have made statements to the government, which post-date the alleged conspiracy.
Any statements made by Braxton, Carnis, or any unidentified co-conspirator of defendant that
inculpated him must be suppressed under Bruton v. United States, 391 U.S. 123 (1968). In
Bruton the United States Supreme Court held that the admission of a co-defendant's post-
__________>
conspiracy confession implicating the defendant constituted reversible error where the co-
defendant did not testify
Any post-conspiracy or post-arrest statements made by Braxton, Camis, or any
unidentified co-conspirator of defendant to the Government or the Grand Jury, inculpatory of
defendant must be suppressed. Should the Government suggest in response to this motion that
post-conspiracy or post-arrest statements can be redacted to avoid reference to defendant, any
such redaction could not be accomplished without the clear suggestion that the statement, no
matter how recast, was a reference to defendant Raia.
In Gray v. Maryland, 523 U.S. 185 (1998), the Supreme Court held that the use of the co-
defendant's statement at defendant's trial, when the statement substituted defendant's name with
the word "deleted" and other symbols, violated defendant's Sixth Amendment confrontation
rights. The Court found that "Redactions that simply replace a name with an obvious blank space
or a word such as 'deleted' or a symbol or other similarly obvious indications of alteration"
closely resembles Bruton's unredacted statement and therefore the same result is required. Gray
523 U.S. at 192. The juror "need only lift his eyes to the co-defendant, sitting at counsel table" to
determine to whom the deletion refers. Gray 523 U.S. at 193; United States v. Richards, 241F.3d
335, 341 (3d Cis.), cert. denied, 533 U.S. 960 (2001).
In Richards, the Third Circuit held that Bruton's mandates were violated when the co-
defendant's statement was redacted to substitute defendant's name with a reference to the co-
defendant's "friend." Richards and the co-defendant, Greenaway, were charged with the robbery
of an armored van. "Greenaway's statement referred to the existence of three participants in the
crime -- Greenaway, the 'insideman,' and 'my friend.' Since the 'inside man' was easily identified
as the driver of the Brink's van, the reference to 'my friend' sharply incriminated Richards, the
only other person involved in the case." 241 F.3d at 341.
There were two cases, both outside of this Circuit, where courts held that a co-defendant's
statement was incapable of redaction. In United States v. McKay, 70 F. Supp. 2d 208 (E.D.N.Y.
1999), defendant Brian McKay was charged in several counts with extortion, money laundering.
income tax evasion and conspiring to steal funds fro111 H.U.D. Id.at 210. The co-defendant, his
nephew, was charged with one count of providing "false statements." In response to the
defendant's objection to the use of his nephew's statement at a joint trial, the Government argued
that it only intended to offer the portion of the statement implicating the nephew and therefore
defendant's constitutional rights were protected. Id at 21 3. The court disagreed and held that the
co-defendant's confession was inextricably intertwined with defendant's involvement in the fraud
scheme to allow even a portion of it to be used at a joint trial. Mckay, 70 F. Supp 2d at 213.
Since the Government represented that it intended to use the co-defendant's statement in its
prosecution of Mckay, a severance was required.
Finally, in United States v. Lavalee, 290 F. Supp. 90 (N.D.N.Y. 1968), the district court
granted defendant's Habeas petition and held that the use of the co-defendant's redacted
statement violated defendant's Sixth Amendment rights. In Lavalee, defendant and his co-
defendant, Swine, were charged with the robbery and assault of an elderly woinan. at 94.
During the trial, the police officers who testified concerning the co-defendant's statements were
ordered to use the word" 'he' or 'the other person or sonlething else," but not the defendant's
name. When one of the detective's testified to the co-defendant's statement concei-ning his
partner's participation in the crime he referred to the partner as "this other person" and "his
friend." Id.
Another officer testified that while the co-defendant was being brought to the police
station he said the following: "they had went out looking for something of value; they came to
this apartment and Swine went up, climbed the fire escape and broke the window with his elbow.
He went into the apartment and let someone else through the door, and they were surprised by a
womm who lived in the apai-tment." u

Finally, a patrolman testified similarly to the officer, concluding his testimony with the
statement: "He let the other fellow in." The coust held that this factual scenario might be a
'classic example of a situation wherein any method of redaction would be patently impractical."
Lavalee 290 F. Supp. at 94. The court found that it was in~possibleto "accept the contention that
the jury did not know that these statements concerning 'the other fellow' or 'his friend' meant the
defendant. Id."It would be an insult to the intelligence of our jurors to believe that this sincere
attempt at camouflage deluded them into the belief that 'the other person' in the particular setting
could be a person other than Josepl~."(the defendant) Id, "Sin~plelogic would lead to the
conclusion that in the dilemma of this trial setting, the testimony about 'another person' could not
be erased from the jurors' mental processes and could only mean it was Joseph. Otherwise, they
would have to think the prosecution was deliberately from the beginning trying the wrong man
as the other second person.'' Id, at 95. Although the Second Circuit overturned the decision, it did
so on a harmless error analysis. The Court did not overrule the district court's detern~inationthat
the redacted statement ran afoul of Bruton.
Given that only two persons are charged in this indictment, and given the scheme alleged,
it would be impossible to disguise any statement made by Braxton or others about defendant
Raia, without the jury knowing that Mr. Raia was the person being referred to. Under these
circumstances, any post-conspiracy statements made by Braxton or any unidentified co-
conspirator of defendant to the Government or to the Grand Jury, which were inculpatory of
defendant, must be suppressed.
Point 9
DEFENDANT SHOULD BE SEVERED FROM CO-DEFENDANT

BRAXTON, AND BRAXTON SHOULD BE IMMUNIZED BY THIS
COURT SO HE MAY OFFER EXCULPATORY TESTIMONY ABOUT
DEFENDANT.
Co-defendant Braxton offered grand jury testimony and made a statement to the
Government that are exculpatory of defendant. Braxton stated that no payments were
made to any person in exchange for their vote. He also stated that persons who were paid
worked for the campaign. As a co-defendant, Braxton has the right to refuse to testify
under the Fifth Amendment. If that right is asserted, defendant will be deprived of
Braxton's exonerating testimony. Under the circun~stances,this Court should sever the
defendants and immunize Braxton so that he may testify on behalf of defendant. If
judicial immunity is required to vindicate the right of a defendant to a fair trial, the
immunity should be granted. Government of the Virgin Islands v. Smith, 615 F.2d 694
(3rdCir. 1980). Here, the government's decision to join the defendants in one indictment,
knowing that co-defendant Braxton exonerated defendant in his statements to law
enforcement and the grand jury, directly violates the right of defendant to a fair trial.
Accordingly, the defendants should be severed and co-defendant Braxton must be granted
a judicial immunity so that he may testify on behalf of defendant.
Point 10
THE GOVERNMENT MUST BE ORDERED TO SUPPLY DEFENDANT

WITH A WITNESS LIST.
Although a defendant is not entitled as a matter of right to a list of government witnesses,

United States v. Addonizio, 451 F.2d 49, 62 (3d Cis. 1972), this Court has the authority to
require the Government to disclose prior to trial the names of its anticipated witnesses. &
United States v. Chmatemp. Inc.. 482 F. Supp. 376, 389-90 (N.D. Ill. 19791, m,United States
v. Reliable Sheet Metal Works. Inc., 705 F.2d 461 (7th Cis. 1983).
In the circumstances here, where the acts alleged do not involve violence and there is no
threat of retribution to witnesses, it is of vital importance to defendants' right to a fair trial to
know who will be testifying for the Government. Defendant may want to interview such
persons, may need to interview others based upon who the witnesses are, and may need certain
documentary evidence, depending upon who the witnesses are. Unless defendant is advised of
the names of the potential witnesses against him, he will not be able to properly prepare their
defense in advance of trial. Accordingly, the Government must be directed to disclose to

defendant the names of its anticipated witnesses.
Point 11
DEFENDANT HEREBY INCORPORATES BY REFERENCE ALL THOSE

FACTUAL AND LEGAL ARGUMENTS, WHICH HAVE BEEN RAISED
BY DEFENDANT'S CO-DEFENDANT, AND WHICH ARE NOT
INCONSISTENT WITH DEFENDANT'S RIGHTS. HE SEEKS LEAVE TO
JOIN IN ALL SUCH MOTIONS.
To the extent they are consistent with his factual and legal arguments, defendant
incorporates by reference all factual and legal arguments raised by his codefendant, and he
seeks leave to adopt and join in all such arguments.
CONCLUSION
For all the foregoing reasons, the pretrial motions of defendant Raia must be granted.
Law Offices of Alan L. Zegas
Is1 Alan L. Zegas

ALAN L. ZEGAS
Attorney for Defendant Frank Raia
Dated: February 19,2019

USA V Francis Raia, Et Al. Omnibus Motion Filed 2-19-2019

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Case 2:18-cr-00657-WJM Document 21-1 Filed 02/19/19 Page 1 of 36 PageID: 99

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA, Criminal No.: 18-657 (WJM)

FRANCIS RAIA and DIO BRAXTON,

BRIEF ON BEHALF OF DEFENDANT, FRANCIS RAIA,

LAW OFFICES OF ALAN L. ZEGAS

Table of Cases and Other Authorities ...........................................................................................

Statement of Facts ...........................................................................................................................1

Point One ........................................................................................................................................

A BILL OF PARTICULARS IS NEEDED BY DEFENDANT IN

Point Two ........................................................................................................................................5

THE GOVERNMENT MUST FORTHWITH TURN OVER TO

Point Three ....................................................................................................................................10

DEFENDANT IS ENTITLED TO A PRELIMINARY HEARING ON

Point Four .....................................................................................................................................

THE GOVERNMENT SHOULD BE COMPELLED TO PRESERVE

Point Five ......................................................................................................................................

DEFENDANT SHOULD BE GIVEN ACCESS TO THE GRAND

Point Six ........................................................................................................................................17

THE GOVERNMENT SHOULD BE REQUIRED TO DISCLOSE TO

Point Seven ...................................................................................................................................18

PURSUANT TO FED. R. CRIM. P. 17(C), DEFENDANT SHOULD

Point Eight ....................................................................................................................................20

ANY POST-CONSPIRACY OR POST-ARREST STATEMENTS

Point Nine .....................................................................................................................................23

DEFENDANT SHOULD BE SEVERED FROM CO-DEFENDANT

Point Ten .......................................................................................................................................

THE GOVERNMENT MUST BE ORDERED TO SUPPLY

Point Eleven ..................................................................................................................................

DEFENDANT HEREBY INCORPORATES BY REFERENCE ALL

TABLE OF CASES AND OTHER AUTHORITIES

Bowman Dairy Co. v. United States,

Bruton v. United States,

Costello v. United States,

Dennis v. United States,

Douglas Oil Company v. Petrol Stows Northwest,

Giglio v. United States,

Government of the Virgin Islands v. Smith,

Huddleston v. United States,

In re Martin Marietta Corp.,

Pittsburgh Plate Glass Company v. United States,

Riggs v. United States,

Roviaro v. United States,

Stirone v. United States,

United States v. Addonizio,

United States v. Agurs,

United States v. Almad,

United States v. Ammar,

United States v. Bagley,

United States v. Baum,

United States v. Birdman,

United States v. Bostnovsky,

United States v. Calandra,

United States v. Canalenson,

United States v. Carcaise,

United States v. Climatemp. Inc.,

United States v. Davidoff,

United States v. DeMarco,

United States v. DiGrazia,

United States v. Dionisio,

United States v. Estepa,

United States v. Flecha,

United States v. Glaze,