MOTION TO EXCLUDE TAPES DUE TO

FALSE RELIANCE AND DISCOVERY VIOLATION

COMES NOW the defendant,*, by undersigned counsel, hereby moves this Honorable Court to exclude from trial the undercover tapes prepared by the Government in this case. As grounds for this motion, defendant states as follows:

1. The Government, in a timely manner, provided counsel with several cassette tapes of undercover conversations made while the confidential informants in this case were wearing body bugs. The conversations were allegedly between the informants and the defendants.

2. Counsel listened to a substantial portion of the tapes and came to the conclusion that they were inaudible. This opinion was confirmed when counsel was told by the Government's attorney that the tapes were inaudible and would not be used at trial. A separate motion requesting exclusion of the tapes due to inaudibility has been filed.

3. On February 3, 1993, counsel for the Government notified the defendant that the Government had changed its mind and will now seek admission of the tapes. This critical reversal occurred just short of three months after the Government represented that it would not use the tapes and five days before trial, including the intervening weekend.

4. By this motion, the defendant requests that the tapes be excluded due to the reliance the defendant placed in the Government's representation that the tapes would not be used. (It is believed that the Government went so far as to state on the record that the tapes would not be used.) As a result of the Government's representation, no attempt was made to locate an expert witness who could listen to the tapes and compare the voices on the tapes to the defendant's voice, thereby lending credence to the defense's planned assertion that the defendant did not participate in the alleged narcotics transactions. Additionally, no attempt was made to prepare a defense version of the transcript of the tapes; experience teaches that the defense's view of what was said on a tape often is markedly different from the Government's version. Due to the lack of adequate notice of the Government's intent to use the tapes, there has been insufficient time to locate and retain an expert and prepare a transcript.

5. Additionally, with regard to the tape that concerns the alleged August 25, 1993 transaction, there has been a discovery violation. The Government is apparently now claiming that it mistakenly provided counsel with an incomplete copy of the tape. The Court's Discovery Order requires that Rule 16 material shall be provided no later than November 22, 1993. As of this time, counsel has yet to receive a complete version of the August 25, 1993 tape.

MEMORANDUM OF LAW

See Rule 16(d)(2), F.R.Cr.P. In view of the false reliance created by the Government by its indication that it did not intend to use the tapes, and the discovery violation discussed above, it is submitted that the appropriate sanction is exclusion.

Respectfully submitted,

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