ailsworth

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Joseph D. Johnson, Joseph D. Johnson, Chtd., Charles D. Dedmon, Office of Federal Public Defender, Topeka, KS, for defendant Jessie Ailsworth, Jr., aka" J.C."
F.G. Manzanares, Jerold E. Berger, Topeka, KS, for defendant Undra P. Mock.
James G. Chappas, Jr., Topeka, KS, for defendant Kenneth R. Torain.
Mark L. Bennett, Jr., Bennett & Dillon, Topeka, KS, for defendant Arnett L. Rice aka Delores Perry.
Matthew B. Works, Works, Works & Works, P.A., Amy C. Bixler, Alan G. Warner, Topeka, KS, for defendant Terence J. Douglas, aka" T" aka Terrance J. Douglas.
Jeannine D. Herron, William K. Rork, Rork Law Office, Topeka, KS, for defendant Calvin L. Conway.
Stephen W. Kessler, Topeka, KS, for defendant George Stewart, Jr., aka " Pigg".
Gregory S. Hough, Office of U.S. Atty., Topeka, KS, for U.S.

MEMORANDUM AND ORDER

CROW, District Judge.
*1 On March 24, 1994, the grand jury returned a twenty count superseding sealed indictment charging certain violations of 21 U.S.C. § 846 (conspiracy to possess with intent to distribute cocaine base), 21 U.S.C. § 841(a)(1) (possession with intent to distribute), 7 U.S.C. § 2024(b) (unlawful acquisition of food stamps), 18 U.S.C. § 924(c)(1) (use of a firearm during and in relation to a drug trafficking crime), and 26 U.S.C. § 5861(h) (receipt or possession of a firearm without serial number or other identification).
This case comes before the court upon the following pretrial motions:
Jesse Ailsworth, Jr. (represented by Joseph D. Johnson):
1. Motion to join (Dk. 165).
2. Joint motion for a bill of particulars (Dk. 104).
3. Joint motion to produce grand jury transcripts and grand jury information (Dk. 124).
4. Motion to exclude unintelligible audio and video tapes (Dk. 187).
5. Motion to strike surplusage language in affidavit (Dk. 188).
Undra P. Mock (represented by Jerold F. Berger) [FN1]:
1. Motions to Join (Dk. 148/186).
2. Joint motion for a bill of particulars (Dk. 104).
3. Motion to suppress (Dk. 198).
4. Motion for severance (Dk. 146).
5. Joint motion to produce grand jury transcripts and grand jury information (Dk. 124).
6. Motion to compel the disclosure of the existence and substance of promises of immunity, leniency, or preferential treatment (Dk. 143).
7. Motion for disclosure pursuant to Rules 404(b) and 609 of the Federal Rules of Evidence (Dk. 144).
8. Motion to exclude unintelligible audio and video tapes (Dk. 197).
9. Motion to strike surplusage language in affidavit (Dk. 199).
Kenneth R. Torain (represented by James G. Chappas):
1. Motion to join (Dk. 122).
2. Motion for bill of particulars (Dk. 112).
3. Motion for severance (Dk. 120).
4. Motion for grand jury transcript (Dk. 113).
5. Motion to compel disclosure of existence and substance or promises of immunity, leniency or preferential treatment (Dk. 117).
6. Motion for discovery and inspection (Dk. 119).
7. Motion for disclosure of information regarding prior or subsequent bad acts (Dk. 116).
8. Motion for grand jury list (Dk. 115).
9. Motion to reserve request for James hearing (Dk. 111).
10. Motion in limine (Dk. 118).
11. Notice of alibi (Dk. 114).
Arnett L. Rice (represented Mark L. Bennett, Jr.):
1. Joint motion for a bill of particulars (Dk. 104).
2. Motion for severance (Dk. 107).
3. Motion for production and inspection of grand jury minutes (Dk. 96).
4. Motion for discovery (Dk. 109).
5. Motion and memorandum pursuant to Rule 611 of the Federal Rules of Evidence to compel the Government to specify the order of its witnesses (Dk. 106).
6. Motion to determine admissibility of extrajudicial statements of alleged coconspirators and to establish order of proof as to conspiracy allegations (Dk. 102).
7. Motion for adequate court facilities (Dk. 98).
Terence J. Douglas (represented Alan Warner, Amy Bixler):
*2 1. Motion to adopt and conform (Dk. 163); Motion for leave to file an additional motion to adopt and conform (Dk. 164).
2. Joint motion for a bill of particulars (Dk. 104).
3. Motion to suppress (Dk. 161).
George Stewart, Jr. (represented by Stephen W. Kessler):
1. Motion to adopt and join motions of codefendants (Dk. 189).
2. Joint motion for a bill of particulars (Dk. 104).
3. Motion to sever (Dk. 92).
4. Motion to strike surplusage from indictment (Dk. 91).
5. Joint motion to produce grand jury transcripts and grand jury information (Dk. 124).
6. Motion in limine (Dk. 93).
Calvin L. Conway (represented by Jeannine D. Herron):
1. Motion to join pretrial motions filed by codefendants (Dk. 154).
2. Joint motion for a bill of particulars (Dk. 104).
3. Motion for severance of trial (Dk. 157).
4. Joint motion to produce grand jury transcripts and grand jury information (Dk. 124).
5. Motion for production of evidence of impeachable convictions of prosecution witnesses and memorandum of law (Dk. 149).
6. Motion for production and disclosure of favorable and impeaching information and support memorandum (Dk. 152).
7. Motion for entry of an order requiring the government to produce statements of non-witnesses and memorandum of law in support thereof (Dk. 150).
8. Motion to compel disclosure of existence and substance of promises of immunity, leniency or preferential treatment (Dk. 155).
9. Motion for disclosure of Jencks Act Materials and supporting memorandum (Dk. 153).
10. Motion for an order requiring the government to provide notice of intent to offer evidence under Rule 404(b), Federal Rules of Evidence, and memorandum of law in support thereof (Dk. 156).
11. Motion to compel retention of notes, logs, recordings, reports and statements of governmental agents (Dk. 158).
12. Motion pursuant to Rule 803(24) Federal Rules of Evidence (Dk. 151).
The government has filed a consolidated response and a supplemental response (Dk. 205 and 206). In its primary response, the government recites a summary of the facts it presented at the defendants' detention hearing. [FN2] The government has also filed a motion to compel discovery (Dk. 203).
On July 15, 1994, the court heard oral argument and evidence pertaining to the pending motions. The court, having considered the arguments and briefs of counsel, the evidence presented, and the applicable law, is now prepared to rule.
Motions to Join (Dk. 165, 148, 186, 122, 163, 164, 189 and 154):
Each of the defendants, except Rice, have filed motions to join and adopt the motions filed by their respective codefendants. The government does not oppose the motions to join filed by Torain, Conway and Douglas to the extent that each has standing to raise the arguments raised by the other defendants. The government opposes the motions filed by Stewart and Mock, arguing that they were filed out of time and that neither defendant has established standing to assert any of the grounds for relief asserted by the codefendants. The government did not specifically respond to Ailsworth's motion.
*3 On May 11, 1994, this court revised its criminal procedural guidelines, which now provide in section I.C:
A motion to join another party's motion will be granted only upon the following conditions. The joining party will not be allowed to raise any legal or factual arguments that are additional to or different from those found in the original motion, unless they are advanced in the motion to join. Issues, such as prejudice, standing, fairness, or need, that are unique to the party seeking to join must be made in the written motion to join or the court will deem them to have been waived.
This modification to the court's guidelines was prompted by the difficulties presented by "motions to join" filed in previous multi-defendant cases.
As but one example in the case at bar demonstrating the problems presented by motions to join, most of the defendants argue in their motions to join that the evidence against them is much less than the evidence against their codefendants. Precisely how do the defendants propose the court evaluate this argument as applied to the codefendants?
It is clear that the defendants have failed to satisfy the requisites of the procedural guidelines as they presently provide. However, in light of the fact that counsel may not have been aware of this revision to the court's guidelines given that the guidelines were amended during the pendency of this case, the court will grant all of the motions to join to the extent that each defendant has demonstrated standing to assert the issues raised.
In the future, the court will expect all counsel to abide by all provisions of its procedural guidelines, including section I.C. The court admonishes counsel to comply with the deadlines set for the filing of motions.
Motions for a bill of particulars (Dk. 104 and 112):
Count I of the superseding indictment alleges that from on or about March 19, 1993, until March 22, 1994, the defendants conspired to possess with intent to distribute crack cocaine. All of the defendants request an order directing the government to file a bill of particulars in this case.
In the joint motion filed by six of the defendant's, the defendants focus on Count I of the indictment. The defendants request an order specifically describing, inter alia, the terms of the "conspiratorial agreement," and the names and addresses of all alleged conspirators, a designation of the overt acts committed by each defendant, times and locations where the conspiracy was commenced and terminated, and essentially a description of all the evidence the government intends to introduce at trial.
In Torain's motion, he advances several of the same arguments advanced by the codefendants. Torain also seeks a bill of particulars stating the facts which support the allegation that he actually or constructively possessed the weapons described in Counts 18 and 19, or that such weapons were used during and in relation to a drug trafficking crime. In regard to Count 20, Torain requests a bill of particulars substantiating the allegation that he possessed or constructively possessed the firearm which had an obliterated or removed serial number.
*4 The government responds, arguing that the defendants' requests for a bill of particulars are nothing more than patently blatant attempts at discovery.

Analysis

"An indictment is sufficient 'if it contains the elements of the offense charged, putting the defendant on fair notice of the charge against which he must defend and if it enables a defendant to assert an acquittal or conviction in order to prevent being placed in jeopardy twice for the same offense.' " United States v. Poole, 929 F.2d 1476, 1479 (10th Cir.1991) (quoting United States v. Staggs, 881 F.2d 1527, 1530 (10th Cir.1989), cert. denied, 493 U.S. 1020 (1990)). In the Tenth Circuit, it is usually enough for the indictment to track the statute when the statute adequately expresses all of the elements to the offense. United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir.1988). An indictment is held only to minimal constitutional standards. United States v. Edmonson, 962 F.2d 1535, 1541 (10th Cir.1992). The sufficiency of an indictment is judged "by practical rather than technical considerations." Id. The district court has broad discretion in deciding a motion for bill of particulars. Id.
" 'The purpose of a bill of particulars is to inform the defendant of the charge against him with sufficient precision to allow him to prepare his defense, to minimize surprise at trial, and to enable him to plead double jeopardy in the event of a later prosecution for the same offense.' " Dunn, 841 F.2d at 1029 (quoting United States v. Cole, 755 F.2d 748, 760 (11th Cir.1985)). Though it may provide more information, a bill of particulars is not intended to serve as a discovery device or to compel the government's disclosure of the factual proof planned for trial. Dunn, 841 F.2d at 1029. Nor is it a way to require the government's explanation of the legal theories expected at trial. United States v. Gabriel, 715 F.2d 1447, 1449 (10th Cir.1983).
A comparison of the allegations in Count One with those found in the case law establishes the sufficiency of the indictment. Besides quoting the essential elements of 21 U.S.C. § 846, the indictment includes the dates of the alleged conspiracy, defines the nature of the conspiracy as one to possess with intent to distribute in excess of 50 grams or more of cocaine base, commonly known as crack, describes the location of the conspiracy as within the District of Kansas, and identifies the specific controlled substance. An indictment for conspiracy to distribute controlled substances "need not go further and allege 'in detail the factual proof that will be relied upon to support the charges.' " Dunn, 841 F.2d at 1029 (quoting United States v. Crippen, 579 F.2d 340, 342 (5th Cir.1978), cert. denied, 439 U.S. 1069 (1979)).
The omission of overt acts is not a deficiency, for "a conspiracy indictment under 21 U.S.C. § 846 need not allege any specific overt acts in furtherance of a conspiracy." United States v. Brown, 934 F.2d 886, 889 (7th Cir.1991); see United States v. Morehead, 959 F.2d 1489, 1499 n. 2 (10th Cir.1992) ("Proof of an overt act is not required for a drug conspiracy charged under 21 U.S.C. § 846.") (citing United States v. Savaiano, 843 F.2d 1280, 1293-94 (10th Cir.), cert. denied, 488 U.S. 836 (1988)). The indictment gives notice of the most relevant names to the charges--those of the principal coconspirators. See United States v. Hallock, 941 F.2d 36, 40 (1st Cir.1991). The failure to name all coconspirators is not fatal. See United States v. Dunnigan, 944 F.2d 178, 181 (4th Cir.1991), rev'd on other grds, 113 S.Ct. 1111 (1993).
*5 "An indictment charging a count of conspiracy is sufficiently precise as to the time frame if the operative period of the conspiracy is set out." Edmonson, 962 F.2d at 1541; see United States v. Harrison-Philpot, 978 F.2d 1520, 1525 (9th Cir.1992) (indictment is sufficient when it places the illegal conduct "within an identifiable time frame"), cert. denied, 113 S.Ct. 2392 (1993). It is not necessary to specify the exact dates on which the defendants committed the alleged conspiratorial acts. United States v. Ellender, 947 F.2d 748, 756 (5th Cir.1991). It is enough if the defendants are aware of the basics of the government's conspiracy case without knowing the precise time and place of the acts constituting the alleged conspiracy. See Hallock, 941 F.2d at 40-41.
Moreover, it appears that the government has provided "full discovery" which should enable the defendants to understand the government's case. "A bill of particular is not required when information necessary for a defendant's defense can be obtained through 'some other satisfactory form' " United States v. Canino, 949 F.2d 928, 949 (7th Cir.1991) (citations omitted), cert. denied, 112 S.Ct. 1940 (1992). "The nature and operations of the 'open file' policy is an adequate 'satisfactory form' of information retrieval, making the bill of particulars unnecessary." Id. (citations omitted); see United States v. Sturmoski, 971 F.2d 452, 460 (10th Cir.1992) (given the government's full disclosure and the defendant's failure to show that he was actually surprised at trial and thereby incurred prejudice to his substantial rights, the district court did not abuse its discretion in denying the defendant's motion for a bill of particulars).
During oral argument, some of the defendants suggested that based upon their review of the discovery provided by the government it was their conclusion that their participation in the conspiracy was at most limited to one isolated transaction. The defendants argued that based upon their assessment of the discovery, there is no evidence that they participated in any way in some of the substantive counts of the indictment. The defendants also argued that because there is no evidence that they were a member of the conspiracy at the time certain crimes were committed, they cannot, as a matter of law, be criminally liable even under a Pinkerton [FN3] theory. From this, the defendants conclude that a bill of particulars is necessary to evaluate the manner in which the grand jury returned an indictment charging them to each of the offenses.
The defendants are apparently correct in their contention that "an individual cannot be held criminally liable for substantive offenses committed by members of the conspiracy before that individual had joined or after he had withdrawn from the conspiracy." Glazerman v. United States, 421 F.2d 547, 551 (10th Cir.), cert. denied, 398 U.S. 928 (1970); see United States v. O'Campo, 973 F.2d 1015, 1021 n. 4 (1st Cir.1992) (collecting cases from circuits agreeing with the proposition that a defendant cannot be retroactively liable for substantive offenses committed prior to the defendant's joining the conspiracy). [FN4] Nevertheless, the court is not convinced that a bill of particulars is appropriate in this case.
*6 In sum, the court believes the defendants' motions are thinly-veiled attempts for detailed discovery of the government's factual proof behind the alleged conspiracy. The mere desire for more discovery is not a legitimate reason by itself for granting a bill of particulars. The defendants' motions for a bill of particulars are denied.
Motions to suppress (Dk. 198 and 161):
On March 21, 1994, Detective Kurt Richter of the Topeka Police Department signed a twenty-six page affidavit requesting the search of four locations in Shawnee County, Kansas. Mock seeks an order suppressing all items seized on March 22, 1994, from 3700 S.E. Powell Street, Topeka Kansas, which was apparently Mock's residence. Mock argues that the references to him is based solely upon information obtained from "anonymous callers or confidential informants whose reliability was unknown to the officers at the time." Mock also argues that the information contained in the affidavit was too stale to serve as probable cause to issue a search warrant.
Douglas seeks an order suppressing the items seized from the search of 1506 S.E. 25th Street. Douglas argues that the affidavit does not contain sufficient evidence upon which probable cause could be determined. Like Mock, Douglas argues that the information relevant to him is stale. Douglas argues that the search was also conducted in violation of 18 U.S.C. § 3109 (the knock and announce rule).
The government responds, arguing that the affidavit clearly demonstrates the existence of probable cause. In the alternative the government argues that the search warrants should be saved by the good-faith exception. As to the alleged violation of 18 U.S.C. § 3109, the government argues that state officers executed the search warrant, and therefore the statute is inapplicable. Instead, the officers' entry must be evaluated under the Fourth Amendment. The government contends that the officers' entry survives constitutional scrutiny.

Applicable Law

Generally, a search must be made pursuant to a warrant based on probable cause. U.S. Const. amend. IV. In deciding a suppression motion based upon the asserted failure of the affidavits to provide probable cause for the warrant, the reviewing court must remember that the magistrate is permitted to draw reasonable inferences from the affidavits and that the magistrate's determination is accorded great deference. See Edmonson, 962 F.2d at 1540; United States v. Peveto, 881 F.2d 844, 850 (10th Cir.), cert. denied, 493 U.S. 943 (1989). When reviewing a magistrate's issuance of a search warrant the court must determine whether the magistrate had a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 236 (1983). The magistrate must make a practical, common determination from the totality of the circumstances presented whether there is a fair probability that contraband or evidence of a crime will be found in a particular place. Id. at 238. "In applying the test enunciated in Gates, this Court has stated that the 'affidavit should be considered in a common sense, nontechnical manner ..." Edmonson, 962 F.2d at 1540 (quoting United States v. Massey, 687 F.2d 1348, 1355 (10th Cir.1982) (citation omitted)).
*7 "[P]robable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules." Gates, 462 U.S. at 232. The Supreme Court has found it sufficient to say that probable cause is more than a mere suspicion, but considerably less than what is necessary to convict someone. United States v. Ventresca, 380 U.S. 102 (1965); see United States v. Wicks, 995 F.2d 964, 972 (10th Cir.) ("The existence of probable cause is a 'common-sense standard' requiring 'facts sufficient "to warrant a man or reasonable caution in belief that an offense has been committed." ' ") (quoting United States v. Mes-Rincon, 911 F.2d 1433, 1439 (10th Cir.1990) (quoting Brinegar v. United States, 338 U.S. 160, 174 (1949)), cert. denied, 114 S.Ct. 482 (1993)).
The evidence to support probable cause must be particularized to the defendant for which the warrant is being sought. Ybarra v. Illinois, 444 U.S. 85, 91 (1979).
It is not necessary, however, that the affidavit indicate that the evidence sought will undoubtedly be found in the place to be searched. Rather, it is only necessary that the facts and circumstances described in the affidavit warrant a man of reasonable caution to believe that such evidence is located at the premises or location to be searched.
United States v. Johnson, 645 F.2d 865, 867-868, (10th Cir.), cert. denied, 454 U.S. 866 (1981).
In United States v. Reyes, 798 F.2d 380 (10th Cir.1986), the defendant, who sought to suppress an audio cassette tape seized from his residence, contended that the information in the affidavit used to secure the search warrant contained no specific link to his residence. The Tenth Circuit rejected the defendant's argument:
The affidavit did indicate that participants in the conspiracy maintained records regarding their activities. It is reasonable to assume that certain types of evidence would be kept at a defendants' residence and an affidavit need not contain personal observations that a defendant did keep such evidence at his residence.
United States v. Reyes, 798 F.2d 380 (10th Cir.1986).

Hearsay

Hearsay, perhaps even multiple hearsay, may be used to establish probable cause. United States v. $149,442.43 in U.S. Currency, 965 F.2d 868, 874 n. 3 (10th Cir.1992); see United States v. Snow, 919 F.2d 1458, 1460 (10th Cir.1990) ("Hearsay evidence may be used to establish probable cause for a search warrant.") (citing Jones v. United States, 362 U.S. 257 (1960)).
In determining the value of an informant's report in establishing probable cause, the magistrate should assess the informant's veracity or reliability and basis of knowledge in light of the totality of the circumstances. Gates, 462 U.S. at 230, United States v. Fixen, 780 F.2d 1434, 1436 (9th Cir.1986). Veracity and basis of knowledge are not, however, rigid and immovable requirements in the finding of probable cause. A deficiency in one element may be compensated for "by a strong showing as to the other, or by some other indicia of reliability." Gates, 462 U.S. at 233. Although an informant's first-hand observations would generally be entitled to greater weight, hearsay reports are not necessarily fatal to the warrant. There is, moreover, no absolute requirement that law enforcement agents inquire into the source of the informant's information. United States v. McNeal, 955 F.2d 1067, 1078 n. 9 (6th Cir.1992). All that is required to support probable cause is that enough information--beyond the mere conclusions of the affiant-- be presented to the magistrate "to enable him to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process. Gates, 462 U.S. at 230 n. 6 (citations omitted).
*8 United States v. Corral, 970 F.2d 719, 727 (10th Cir.1992).

Stale Information

"Probable cause to search cannot be based on stale information that no longer suggests that the items sought will be found in the place to be searched." Snow, 919 F.2d at 1459.
The determination of timeliness, however, does not depend on simply the number of days that have elapsed between the facts relied on and the issuance of the warrant; instead, whether the information is too stale to establish probable cause depends on "the nature of the criminal activity, the length of the activity, and the nature of the property to be seized."
919 F.2d at 1460 (quoting United States v. Shomo, 786 F.2d 981, 983 (10th Cir.1986).

Analysis

The information provided to the magistrate was sufficient to support a finding of probable cause. Nor was the information provided stale. In any event, the court is satisfied that the evidence from the search warrants is admissible under the "good-faith" exception recognized by the Supreme Court in United States v. Leon, 468 U.S. 897 (1984). [FN5]

18 U.S.C. § 3109: The Knock and Announce Rule

"Federal officials serving a warrant must knock and announce their presence and intent before searching a dwelling, unless notice is likely to result in the destruction of evidence or harm to the officers." United States v. Moland, 996 F.2d 259, 260 (10th Cir.1993) (citations omitted), cert. denied, 114 S.Ct. 722 (1994). Title 18, section 3109 provides:
The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.
" 'The purpose of 18 U.S.C. § 3109 is to restrict the authority of the government to intrude upon the privacy of its citizens, and to protect law enforcement officers who might be mistaken as unlawful intruders.' " United States v. Knapp, 1 F.3d 1026, 1030 (10th Cir.1993) (quoting United States v. Remigio, 767 F.2d 730, 732 (10th Cir.), cert. denied, 474 U.S. 1009 (1985)). [FN6] "Evidence seized must be suppressed as the fruit of an unlawful search if the officers failed to comply with the knock and announce statute." Knapp, 1 F.3d at 1030 (citing United States v. Ruminer, 786 F.2d 381, 383 (10th Cir.1986)."
Section 3109 does not apply to state investigations by state officers. Moland, 996 F.2d at 259; United States v. Sagaribay, 982 F.2d 906, 910- 911 (5th Cir.1993) (citing United States v. Moore, 956 F.2d 843, 845-47, and 847 n. 4 (8th Cir.1992)). Instead, the reasonableness of the search is evaluated under the Fourth Amendment. United States v. Mitchell, 783 F.2d 971, 974 (10th Cir.), cert. denied, 479 U.S. 860 (1986); see Moland, 996 F.2d at 260-261 ("Evidence seized by state officers will be suppressed in a federal prosecution if the search violated the Fourth Amendment."). "Whether the Fourth Amendment has been violated is determined solely by looking to federal law on the subject." United States v. Walker, 960 F.2d 409, 415 (5th Cir.1992).
*9 In Sagaribay, the Fifth Circuit noted that the Fourth Amendment and § 3109 serve overlapping purposes. 982 F.2d at 909. "While the provisions overlap, the extent of that overlap is not clear." Id.
Based upon the court's assessment of the evidence, the execution of the search warrant was reasonable. [FN7] Officers executing the warrants knocked and yelled something to the effect of "Police officers, search warrant," waited and made the same announcement prior to entering. As officers executing warrant approached the residence, they became aware of a person inside. Special Agent Rick Sable, KBI, through a screen window, spoke with Douglas' mother, Shirley Douglas. Agent Sable ordered Shirley Douglas to remain stationary. Other officers executed the warrant by forcing open locked front storm door.
The court concludes that even if the execution of the search warrant had been performed by federal agents, the execution of the warrant satisfied the knock and announce rule. Because officers executing the warrant were attempting to locate, inter alia, drugs which are readily disposable, see Sagaribay, 982 F.2d at 910, it appears that the officers' entry was reasonable under Fourth Amendment standards.
In reaching this decision, the court has considered the fact that Shirley Douglas, who was dozing or resting in a prone position as the officers approached the residence, testified that she did not hear officers announce their presence and intent to enter. While Shirley Douglas may not have heard the officers announce their presence and intent to execute the search warrant, the court concludes that the officers executing the search warrant complied with the knock and announce rule.
Motions to sever (Dk. 146, 120, 107, 92 and 157):
Mock, Torain, Rice, Stewart and Conway each seek a separate trial. Decocted to their simplest form, these are the primary arguments advanced by the defendants in support of each of their respective motions:
1. The government's case is extensive and complicated, thereby creating a chance of jury confusion;
2. The quantum and quality of evidence is stronger against the codefendants;
3. The jury will be unable to give separate consideration to each of the defendants and in general, will be unable to follow the court's instructions; the jury will be unable to compartmentalize the evidence presented;
4. Bruton problems: Coconspirator's statements will be admitted into evidence in violation of certain defendant's rights to confront witnesses.
5. Defendant would like to call codefendants as witnesses but cannot do so as they may choose to exercise their right to remain silent.
6. Guilt by association and the "spill-over" effect.
7. Codefendants may or may not testify in their own defense, thereby "commenting" on the choice made by a codefendant;
8. Unspecified "antagonistic" defenses may be asserted.
Fed.R.Crim.P. 8 provides that "two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transactions constituting an offense or offenses." In the Tenth Circuit, defendants charged jointly under Rule 8 are not entitled to separate trials as a matter of right. To determine whether joinder is appropriate under Rule 8, the court must consider the facts and circumstances of each case. See United States v. Bailey, 952 F.2d 363, 364-65 (10th Cir.1991). [FN8]
*10 Under proper circumstances, the court may grant severance even if joinder under Rule 8 is appropriate. United States v. Hollis, 971 F.2d 1441, 1456 (10th Cir.1992), cert. denied, 113 S.Ct. 1580 (1993). Fed.R.Crim.P. 14 provides in pertinent part:
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance or provide whatever other relief justice requires ...
"In determining the merits of a motion for severance, the court must weigh the prejudice to a particular defendant caused by the joinder against the important considerations of economy and expedition in judicial interests." United States v. Mabry, 809 F.2d 671, 681 (10th Cir.), cert. denied, 484 U.S. 874 (1987), and overruled on other grounds, Mathews v. United States, 485 U.S. 58 (1988). Severance is a matter of discretion, not of right, and the defendant bears a heavy burden of demonstrating prejudice to his case. Hollis, 971 F.2d at 1456. "The Supreme Court has emphasized that trial courts have 'a continuing duty at all stages of the trial to grant a severance if prejudice does appear.' " Peveto, 881 F.2d at 857 (quoting Schaffer v. United States, 362 U.S. 511 (1960)).
The fact that evidence against one defendant is more incriminating than another is not, standing alone, a basis for severance. United States v. Dill, 693 F.2d 1012 (10th Cir.1982); see also United States v. Cox, 934 F.2d 1114, 1120 (10th Cir.1991) (that the government's evidence was stronger on some counts than on others does not mandate severance under Rule 14). Nor does the fact that one or more of the codefendants has a criminal record entitle the defendant to a separate trial. United States v. Warner, 971 F.2d 1189, 1196 (6th Cir.1992). [FN9] Severance is not required because a defendant might have a better chance of acquittal if the trials had been severed. Peveto, 881 F.2d at 857; United States v. Petersen, 611 F.2d 1313 (10th Cir.), cert. denied, 447 U.S. 905 (1979). Similarly, a complaint that the "spillover effect" from the evidence that was overwhelming or more damaging against the codefendant than the evidence against the moving party is insufficient to warrant severance. United States v. Hack, 782 F.2d 862, 870 (10th Cir.), cert. denied, 476 U.S. 1184 (1986); United States v. Cox, 934 F.2d 1114, 1119 (10th Cir.1991).
Moreover, the court may instruct the jury that it should consider individually the charges against each defendant and the evidence presented, and not consider any evidence admitted solely against one defendant against another defendant. See Warner, 971 F.2d at 1196 (severance not required if some evidence is admissible against some defendants and not others); United States v. Linn, 31 F.3d 987 (10th Cir.1994) (court properly gave limiting instruction that evidence only relevant to certain defendants); see also United States v. Cardall, 885 F.2d 656 (10th Cir.1989) (the assumption that juries can and will follow the instructions they are given is fundamental to our system).
*11 Besides being a "preference in the federal system," joint trials " 'play a vital role in the criminal justice system.' " Zafiro v. United States, 506 U.S. 534, 113 S.Ct. 933, 122 L.Ed.2d 317, 324 (1993) (quoting Richardson v. Marsh, 481 U.S. 200, 209 (1987)). Joint trials promote economy and efficiency and "serve the interests of justice by avoiding the scandal and inequity of inconsistent trials." Richardson, 481 U.S. at 209. Such interests are obviously served in having a joint trial of defendants who are indicted together and are alleged to have participated mutually in the charged offense. See United States v. Jenkins, 904 F.2d 549, 557 (10th Cir.), cert. denied, 111 S.Ct. 395 (1990). Consequently, "[c]ourts generally adhere to the principle that 'those indicted together, especially co- conspirators, should be tried together.' " Peveto, 881 F.2d at 857 n. 16 (quoting 8 J. Moore, W. Taggert & J. Wicker, Moore's Federal Practice ¶ 14.05, p. 14-82 (2 ed. 1989)); see Jenkins, 904 F.2d at 556-557 (persons jointly indicted should be tried together); United States v. Brantley, 986 F.2d 379, 383 (10th Cir.1993) (defendants indicted together should be tried together).
The Supreme Court has recently considered the law concerning the issue of severance under Rule 14 in Zafiro v. United States:
We believe that, when defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. Such a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant. For example, evidence of a codefendant's wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty. When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened. See Kotteakos v. United States, 328 U.S. 750, 774-775, 90 L.Ed. 1557, 66 S.Ct. 1239 (1946). Evidence that is probative of a defendant's guilt but technically admissible only against a codefendant also might present a risk of prejudice. See Bruton v. United States, 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620 (1968). Conversely, a defendant might suffer prejudice if essential exculpatory evidence that would be available to a defendant tried alone were unavailable in a joint trial. See, e.g., Tifford v. Wainwright, 588 F.2d 954 (5th Cir.1979) (per curiam). The risk of prejudice will vary with the facts in each case, and district courts may find prejudice in situations not discussed here. When risk of prejudice is high, a district court is more likely to determine that separate trials are necessary, but, as we indicated in Richardson v. Marsh, less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice. See 481 U.S. at 211.
*12 Zafiro, 122 L.Ed.2d at 325. Rule 14 does not compel severance even when the risk of prejudice is shown, for the trial court still retains the discretion to create a remedy which will abate the risk of prejudice. Id.
"In this circuit, the conflict between codefendants' defenses must be such that 'the jury, in order to believe the core of one defense, must necessarily disbelieve the core of the other.' " United States v. Linn, 31 F.3d 987 (10th Cir.1994) (quoting United States v. Swingler, 758 F.2d 477, 495 (10th Cir.1985)). "Mutually antagonistic defenses are not prejudicial per se." Zafiro, 122 L.Ed.2d at 325. "A mere conflict of theories or one defendant's attempt to cast blame on another does not require severance." Peveto, 881 F.2d at 857 (citation omitted). The Seventh Circuit has summarized the rule as follows:
Finger-pointing is an acceptable cost of the joint trial and at times is even beneficial because it helps complete the picture before the trier of fact. Unless the defenses are so inconsistent that the making of a defense by one party will lead to an unjustifiable inference of another's guilt, or unless the acceptance of a defense precludes acquittal of other defendants, it is not necessary to hold separate trials.
United States v. Buljubasic, 808 F.2d 1260, 1263 (7th Cir.), cert. denied, 484 U.S. 815 (1987).
In this case, the defendants have not demonstrated that severance is appropriate. Nothing presented to the court demonstrates that any defendant will be prejudiced in a manner that cannot be addressed by appropriate instructions to the jury. As to the defendants' claims of mutually antagonistic defenses, the burden rests with the defendants to make a strong showing of prejudice and demonstrate that they would be denied a fair trial. Because a finding of prejudice may not be based on conjecture, U.S. v. Dickey, 736 F.2d 571, 590 (10th Cir.), cert. denied, 469 U.S. 876 (1984), the court must deny the request for severance on this ground.
In regard to the defendants' apparent confrontation clause concerns, the court finds that the defendants have failed to demonstrate that an irreconcilable problem exists. The defendants assert without elaboration that a Bruton problem exists. [FN10] "Bruton, ..., does not hold that defendants in joint trials involving Bruton problems are entitled to separate trial." United States v. Hill, 901 F.2d 880, 883 (10th Cir.1990). Bruton problems are avoided, however, by severance, but severance is not required. Id., see United States v. Ridley, 814 F.Supp. 992, 1000-1001 (D.Kan.1993) (severance not compelled when confronted with a potential Bruton problem). "Severance is required 'only where admission of the statement in its edited form distorts the meaning of the statement or excludes information substantially exculpatory of the declarant.' " United States v. Comeaux, 955 F.2d 586, 590 (8th Cir.) (quoting United States v. Long 900 F.2d 1270, 1279 (8th Cir.1990)), cert. denied, 113 S.Ct. 135 (1992). [FN11]
*13 Bruton problems may be avoided by redaction of the codefendant's statements coupled with the use of limiting instructions. See Richardson v. Marsh, 481 U.S. 200, 211 (1987); Ridley, 814 F.Supp. at 1000. Moreover, as the defendants have not identified which statements other codefendants have made that, if introduced into evidence, are potentially violative of their own confrontation clause rights, it is impossible for the court to evaluate the merits of this claim. [FN12] The court also notes that coconspirator statements made in furtherance of a conspiracy that satisfy the requirements of Fed.R.Evid. 801(d)(2)(E) also satisfy the Confrontation Clause. See United States v. Garcia, 994 F.2d 1499 (10th Cir.1993); United States v. Mayes, 917 F.2d 457, 464 (10th Cir.1990), cert. denied, 498 U.S. 1125 (1991).
In evaluating the need for severance based upon a defendant's desire to call a codefendant as a witness, the Tenth Circuit has developed the following criteria for evaluating such a claim:
United States v. McConnell, 749 F.2d 1441 (10th Cir.1984), set forth seven relevant factors for considering whether to sever based on potential exculpatory testimony: (1) the likelihood that the codefendant would in fact testify and waive his Fifth Amendment privilege at the severed trial; (2) the significance of the testimony to the theory of defense; (3) the exculpatory nature and effect of such testimony; (4) the likelihood that the testimony would be impeached; (5) the amount of prejudice caused by the absence of such testimony; (6) the effect of the severance on judicial economy; and (7) the timeliness of the motion. Id. at 1445.
United States v. Powell, 982 F.2d 1422, 1432-1433 (10th Cir.1992), cert. denied, 113 S.Ct. 2361 (1993). None of the defendants have made any meaningful attempt to evaluate the need for severance under these factors. Consequently, the defendants have failed to demonstrate that severance is appropriate because of the need to call a codefendant as a witness.
In short, the court concludes that the defendants have failed to demonstrate that severance is appropriate in this case. The court is confident that the jury will be properly instructed and that each defendant will receive a fair trial. Moreover, as the government suggests, several of the defendants' arguments appear to ignore their potential liability under a Pinkerton theory. Nor have the defendants demonstrated that severance is appropriate under the criteria set forth in Powell. The defendants' motions for severance are denied.
Motion to strike surplusage from indictment (Dk. 91):
Stewart seeks an order pursuant to Fed.R.Crim.P. 7(d) striking as surplusage the portion of the indictment referring to him as "a/k/a Pigg." Stewart argues that this language is only included to disparage him and should be stricken as immaterial. Stewart also seeks an order striking as surplusage the words "crack" and "crack cocaine." Stewart argues that the inclusion of the phrases is intended only to elicit negative connotations commonly associated with the words.
*14 The government responds, indicating that it intends to introduce evidence of Stewart's alias "Pigg" during trial. The government indicates that "Pigg" is the name by which the codefendants referred to Stewart and how undercover agents knew him and referred to him, as will be evidenced by the tape recordings played to the jury. The government indicates that the use of Stewart's alias is necessary to connect the defendant to the crimes charged in the indictment. As for the use of the phrases "crack" and "crack cocaine," the government indicates that those are the terms used by the defendants during their tape recorded transactions which form the basis of the crimes charged in the indictment.
Under Fed.R.Crim.P. 7(d), "[t]he court on motion of the defendant may strike surplusage from the indictment or information." "This rule introduces a means of protecting the defendant against immaterial or irrelevant allegations in an indictment or information, which may, however, be prejudicial." Notes of Advisory Committee on Rules, 1944 Adoption, Note to Subdivision (d).
It is held that a motion to strike surplusage should be granted only if it is clear that the allegation are not relevant to the charge and are inflammatory and prejudicial. This is a rather exacting standard, and only rarely has surplusage been ordered stricken. In particular, defendants are usually unsuccessful in their attempts to have aliases expunged from an indictment.
1 Charles A. Wright, Federal Practice and Procedure § 127 (1982); see United States v. Scarpa, 913 F.2d 993, 1013 (2nd Cir.1990) ("Motions to strike surplusage from an indictment will be granted only where the challenged allegations are 'not relevant to the crime charged and are inflammatory and prejudicial.' ") (quoting United States v. Napolitano, 552 F.Supp. 465, 480 (S.D.N.Y.1982) (citing authorities). A motion to strike surplusage is committed to the discretion of the court. 1 Federal Practice and Procedure § 127.
Notwithstanding these standards,
[c]ourts generally disapprove of including aliases in the indictment as an ordinary course and believe that their use 'should be curbed.' United States v. Wilkerson, 456 F.2d 57, 59 (6th Cir.) (citing Petrilli v. United States, 129 F.2d 101, 104 (8th Cir.), cert. denied, 317 U.S. 657 (1942)), cert. denied, 8 U.S. 926 (1972). The rule most often followed is that aliases may be used when "the Government intends to introduce evidence of an alias and the use of that alias is necessary to identify the defendant in connection with the acts charged in the indictment." United States v. Clark, 541 F.2d 1016, 1018 (4th Cir.1976) (citing United States v. Skolek, 474 F.2d 582, 586 (10th Cir.1973); United States v. Miller, 381 F.2d 529 (2nd Cir.1967), cert. denied, 392 U.S. 929, 20 L.Ed.2d 1387, 88 S.Ct. 2273 (1968); see also United States v. Ruggiero, 824 F.Supp. 379, 397 (S.D.N.Y.1993). If the government at trial fails to show either the defendant's use of the alias or the relevancy of the alias in proving the crimes charged in the indictment, the defendant may renew his motion to strike, and the court may strike the alias and instruct the jury appropriately. United States v. Clark, 541 F.2d at 1018.
*15 United States v. Ramos, 839 F.Supp. 781 (D.Kan.1993). In Ramos, the court struck the aliases of a defendant based upon the government's failure to demonstrate the relevancy of those aliases. 839 F.Supp. at 788.
In the case at bar, the alias of the defendant appears to be relevant and admissible into evidence. The mere fact that the sobriquet of "Pigg" may have a negative connotation does not detract from its relevance. As for the phrases "crack" and "crack cocaine," it appears that this terminology is relevant and will potentially aid the jury in understanding the evidence presented. Moreover, the defendant has not directed the court's attention to any authority supporting the striking of such phrases, nor has this court done so in any case in the past in which a defendant was charged with a narcotics offense involving cocaine base.
The defendant's motion to strike surplusage is denied.
Motions for inspection of grand jury minutes (Dk. 96, 113 and 124):
The defendants seek an order permitting inspection of the testimony of all the witnesses who testified before the grand jury. The government argues that the defendants have not demonstrated a particularized need for the transcripts which is required before the grand jury's secrecy may be invaded.
"Since the 17th century, grand jury proceedings have been closed to the public, and records of such proceedings have been kept from the public eye." Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218 n. 9, (1979). "The rule of grand jury secrecy was imported into our federal common law and is an integral part of our criminal justice system." Id. Grand jury secrecy is regarded as necessary to the proper functioning of the grand jury. Id.
In Douglas, the Supreme Court summarized the reasons necessitating grand jury secrecy:
"(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt."
Id. at 219 n. 10 (quoting United States v. Rose, 215 F.2d 617, 628-629 (3rd Cir.1954)).
Fed.R.Crim.P. 6(e) codifies the requirement that grand jury activities generally be kept secret. "Despite the strong policy of maintaining the secrecy of grand jury proceedings, in certain situations disclosure of grand jury minutes and transcripts is appropriate where justice demands." United States v. Pottorf, 769 F.Supp. 1176, 1180 (D.Kan.1991). Rule 6(e)(3) contains the exceptions to the general rule of secrecy. In pertinent part, Rule 6(e) provides:
*16 (C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made--
(i) when so directed by a court preliminarily to or in connection with a judicial proceeding;
(ii) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grant jury;
....
If the court orders disclosure of matters occurring before the grand jury, the disclosure shall be made in such manner, at such time, and under such conditions as the court may direct.
See also 18 U.S.C. § 3500 (The Jencks Act).
The decision of whether grand jury transcripts should be released is committed to the sound discretion of the district court. In re Lynde, 922 F.2d 1448, 1451 (10th Cir.1991) (quoting Douglas Oil, 441 U.S. at 211). To be entitled to production, the defendants must show a "particularized need" for the documents that outweighs the public policy of grand jury secrecy. See United States v. Warren, 747 F.2d 1339, 1347 (10th Cir.1984).
The defendants here have not made the requisite showing of particularized need. They ask for the materials out of a wish to discover whether Rule 6(d) was violated, whether excessive hearsay was presented to the grand jury, whether exculpatory evidence was withheld from the grand jury, whether the grand jury that returned the indictment was the same grand jury that heard the evidence, and whether there was any prejudice from unauthorized or undisclosed comments. "Typically, cases of 'particularized need' arise when the litigant seeks disclosure of grand jury transcripts 'to impeach a witness, to refresh his recollection, [or] to test his credibility.' " In re Lynde, 922 F.2d at 1454 (quoting Procter & Gamble, 356 U.S. at 683). The defendants here do not advance these or similar reasons.
A general claim that the grand jury transcript possibly contains exculpatory evidence does not suffice. Id. Particularized need is more than a wish to go fishing for useful material. United States v. Kim, 577 F.2d 473, 478 (9th Cir.1978); see Cullen v. Margiotta, 811 F.2d 698, 715 (2nd Cir.) ("Requests for wholesale disclosures should generally be denied...."), cert. denied, 483 U.S. 1021 (1987). The scope and breadth of the defendants' request indicates their purpose here is little more than to go on a fishing expedition for anything that might help them.
The rule is as exacting when the defendant asks for the protected materials in order to challenge the propriety of the grand jury proceedings. "Before disclosure of the grand jury transcripts, which would corroborate the Defendants' arguments can be ordered, the Defendants must offer evidence of a 'substantial likelihood of gross or prejudicial irregularities in the conduct of the grand jury.' " United States v. Cannistraro, 800 F.Supp. 30, 50-51 (D.N.J.1992) (quoting United States v. Budzanoski, 462 F.2d 443, 454 (3rd Cir.), cert. denied, 409 U.S. 949 (1972)). Speculation over what may have occurred is not enough to meet this burden or to overcome the presumption of regularity attached to grand jury proceedings. United States v. Santoro, 647 F.Supp. 153, 173 (E.D.N.Y.1986) (noted the Catch-22 dilemma inherent in this rule but followed it nonetheless), aff'd, 880 F.2d 1319 (2nd Cir.1989); see, e.g., United States v. Fife, 573 F.2d 369, 372 (6th Cir.1976) (defense counsel's "understanding" that there were two grand juries is a mere conclusion lacking the factual support necessary to justify disclosure of the grand jury proceedings), cert. denied, 430 U.S. 933 (1977); United States v. Wood, 775 F.Supp. 335, 336-37 (W.D.Ark.1991) (the mere assertion that two grand juries probably investigated the events leading to the indictment is insufficient). "A review of grand jury minutes is rarely permitted without specific factual allegations of government misconduct." United States v. Torres, 901 F.2d 205, 233 (2nd Cir.) (citation omitted), cert. denied, 498 U.S. 906 (1990). The defendants offer no evidence nor reasons to question the propriety of the grand jury proceedings in this case. The court declines to order the disclosure of grand jury materials or to conduct an in camera examination of the same on speculation alone. The defendants' motions are denied.
*17 In sum, it the defendants have fallen far short of demonstrating a particularized need for the undisclosed grand jury transcripts.
Motions for discovery (Dk. 143, 117, 119, 106, 109, 149, 152, 150, 155 and 153):
The defendants have filed a multitude of motions pertaining to discovery. The government responds to each of the motions. Based upon the government's response and the applicable law, it appears that the government's response adequately addresses all of the defendants' requests. Specifically, the government indicates that it has provided "full" discovery and that it understands its obligations under Brady and under the Federal Rules of Criminal Procedure and that it has fulfilled those obligations in this case.

Brady

"There is no general constitutional right to discovery in a criminal case and Brady did not create one." Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Brady did impose a duty on the prosecution to disclose evidence in its possession that is both exculpatory and material either to guilt or punishment. 373 U.S. at 87. The due process clause sets the parameters for Brady:
The Brady rule is based on the requirement of due process. Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur. Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial....
United States v. Bagley, 473 U.S. 667, 675 (1985) (footnotes omitted). In short, "it is a rule of fairness and the constitutionally minimal prosecutorial obligation." United States v. George, 778 F.2d 556, 560 (10th Cir.1985).
The government's obligation to disclose arises when the requested information is both favorable to the defendant and material. The information must be favorable to the point of being expressly exculpatory:
If a statement does not contain any expressly exculpatory material, the Government need not produce that statement to the defense. To hold otherwise would impose an insuperable burden on the Government to determine what facially nonexculpatory evidence might possibly be favorable to the accused by inferential reasoning.
United States v. Comosona, 848 F.2d 1110, 1115 (10th Cir.1988); see United States v. Bagley, 473 U.S. at 676 n. 7. Exculpatory evidence "goes to the heart of the defendant's guilt or innocence." United States v. Starusko, 729 F.2d 256, 260 (3rd Cir.1984) (citation omitted). Information is not exculpatory merely because it is not inculpatory. United States v. Kennedy, 819 F.Supp. 1510, 1519 (D.Colo.), aff'd, 994 F.2d 747 (10th Cir.1993). "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682. Quite simply, "the constitution does not grant criminal defendants the right to embark on a 'broad or blind fishing expedition among documents possessed by the Government....' " United States v. Mayes, 917 F.2d 457, 461 (10th Cir.1990) (quoting Jencks v. United States, 353 U.S. 657, 667 (1957)), cert. denied, 498 U.S. 1125 (1991).
*18 Impeachment evidence falls within the Brady rule when the reliability of a given witness may be determinative of the defendant's guilt or innocence. Giglio v. United States, 405 U.S. 150, 154 (1972). " 'Impeachment evidence merits the same constitutional treatment as exculpatory evidence.' " United States v. Abello-Silva, 948 F.2d 1168, 1179 (10th Cir.1991)