Full opinion text
OPINION LECHNER, District Judge. TABLE OF CONTENTS Facts....................................................................... 672 Discussion.................................................................. 680 I. Discovery-Related and Miscellaneous Motions..................... 680 A. Motion for Statements of Co-Conspirators.................... 680 B. Motion for List of Government Witnesses .................... 683 C. Motion for Giglio Material................................... 684 D. Motions for Disclosure of Rule 404 Evidence the Government Intends to Admit.......................................... 685 E. Motion for Identification of Brady Material Among Documents Previously Produced....................................... 687 F. Motion for Production of Materials Initially Disclosed to the Defendants But Later Withdrawn.......................... 688 G. Motion for a Bill of Particulars.............................. 688 H. Motion for the Production of Enumerated Documents Characterized as Brady Material.................................... 692 I. Preservation of Rough Notes and Other Communications...... 692 J. Motion for Transcripts and Tape Recordings.................. 692 K. Motion for an Order Precluding the Admission of Any Testimony by David O’Connor, Esq., or Marvin Gersten, Esq., Protected by the Attorney-Client Privilege............................... 692 L. Motion for an Order Preserving the Right of Bertoli to Make Applications Under Fed.R.Crim.P. 17(c) for Subpoenas Prior to Trial...................................................... 693 M. Motion for an Order Preserving Bertoli’s Right to Move to Suppress Wiretap Evidence or Evidence Seized in Searches..... 693 II. Motion for a Change of Venue as to the Obstruction of Justice Allegations.................................................... 694 III. Motion for Severance............................................ 695 IV. Motion to Strike Surplusage...................................... 698 V. Motion to Dismiss and for Discovery Based on Allegations of Prosecutorial Misconduct.............................................. 701 A. Motions to Dismiss and for Discovery Based on Specific Allegations of Prosecutorial Misconduct........................... 702 1. Alleged Failure to Obtain Approval of RICO Charges..... 702 2. Alleged Conflict of Interest.............................. 703 3. Allegations as to Improper Sealing of the Indictments..... 706 4. Alleged Misconduct Relating to the Grand Jury Proceedings 707 a. Alleged Disclosure of Bertoli Nolo Contendere Plea ... 708 b. Alleged Mischaracterizations to the Grand Jury of Testimony Given Before Previous Grand Juries........... 709 c. Alleged Use of Summaries of Evidence................ 709 d. Alleged Fed.R.Crim.P. 6(e) Violations.................. 710 e. Alleged Violation of the Right to Financial Privacy Act 712 B. Motion to Dismiss and for Discovery Based on Alleged Cumulative Misconduct............................................ 713 VI. Motion to Dismiss Based on Prosecutorial Vindictiveness.......... 714 VII. Motion to Dismiss Counts 1 through 3 for Failure to State an Offense 717 VIII. Motion to Dismiss Racketeering Acts 5(j) and 5(k) ................ 725 IX. Constitutional Challenge to the RICO “Pattern” Requirement...... 726 X. Motion for Recusal.............................................. 731 Conclusion......................................................'............ 735 Presently before the court are the pretrial omnibus motions of defendants Leo M. Eisenberg (“Eisenberg”), Richard S. Cannistraro (“Cannistraro”) and Richard 0. Bertoli (“Bertoli”) (collectively, the “Defendants”). Bertoli moves to dismiss Counts 1 and 2 of the Superseding Indictment, which charge the Defendants with violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962(c) and (d), respectively, on the ground that the RICO “pattern” requirement is unconstitutionally vague. In addition, Bertoli moves to dismiss Counts 1, 2 and 3, the last of which charges the Defendants with conspiracy to commit securities fraud in violation of 18 U.S.C. § 371, for failure to state an offense. Bertoli moves to dismiss the Superseding Indictment based on alleged prosecutorial misconduct, or in the alternative, for discovery of grand jury materials. In addition, Bertoli moves pursuant to Fed.R.Crim.P. 16 for discovery of statements made by unindicted co-conspirators, for notice pursuant to Fed.R.Crim.P. 12(d)(2) of the Government’s intention to introduce under Fed.R.Evid. 404(b) evidence of other crimes, wrongs or acts by Bertoli (“Rule 404(b) Evidence”), for a list of witnesses the Government intends to call at trial, for impeaching material with respect to Government witnesses and for exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (“Brady” material). In addition, Bertoli moves for an order precluding certain testimony by David O’Con-nor, Esq., and Marvin Gersten, Esq., on the ground that it is protected by the attorney-client privilege, or in the alternative for identification by the Government of the anticipated testimony of David O’Connor, Esq., and Marvin Gersten, Esq., pursuant to Fed.R.Crim.P. 12(d)(2). Bertoli also seeks an order preserving his right to make applications, as necessary under Fed.R.Crim.P. 17(c), for subpoenas prior to trial, an order preserving his right to move to suppress wiretap evidence or evidence seized in searches or the fruits thereof, an order striking purported surplusage from the Superseding Indictment, an order compelling the Government to identify the Brady material contained among documents it has thus far produced, an order compelling the Government to preserve notes of its interviews of Bertoli and an order compelling the Government to produce for inspection and copying materials previously produced by the Government but later withdrawn by the Government. Bertoli also moves for a Bill of Particulars pursuant to Fed.R.Crim.P. 7(f). Defendant Eisenberg moves for severance of his trial from that of Cannistraro, for transfer of the charges of obstruction of justice, set forth in Counts 4, 5 and 6 of the Superseding Indictment, to the Eastern District of New York and for pre-trial disclosure of all Rule 404(b) Evidence. Defendant Cannistraro moves to dismiss the Superseding Indictment against him as violative of his due process right to be free from vindictive prosecution and for recusal of the court pursuant to 28 U.S.C. § 455. By letter, dated 19 March 1991, Eisenberg joined in Bertoli’s motions to dismiss portions of the Superseding Indictment and his motions relating to discovery and for a Bill of Particulars. See 19 March 1991 Eisenberg Letter. Counsel for Eisenberg reiterated at oral argument, held 3 July 1991, that Eisenberg joined in only Bertoli’s motions to dismiss, for discovery and for a Bill of Particulars. 3 July 1991 Tr. at 13. By letter, dated 3 April 1991, Bertoli joined in Cannistraro’s recusal motion and Eisenberg’s severance motion. See 3 April 1991 Bertoli Letter. Facts On 16 June 1989, an Indictment was returned against the Defendants and sealed by order of Magistrate Judge Stanley R. Chesler. Government Brief at 3 n. 1. On 29 September 1989, the instant six-count Superseding Indictment was returned against the Defendants and sealed by Magistrate Judge Chesler. It was unsealed on 5 October 1989. Count 1 of the Superseding Indictment charges the Defendants with racketeering activities involving Monarch Funding Corporation (“Monarch”) in violation of RICO, 18 U.S.C. § 1962(c). Count 2 charges the Defendants with conspiracy to commit racketeering in violation of RICO, 18 U.S.C. § 1962(d). Count 3 charges the Defendants with conspiracy in violation of 18 U.S.C. § 371 to commit securities fraud in violation of section 10(b) of the Securities Exchange Act of 1934 (“Section 10(b)”), 15 U.S.C. § 78j(b) and Securities and Exchange Commission (“SEC”) Rule 10b-5 promulgated thereunder (“Rule 10b-5”), 17 C.F.R. § 240.10b-5. Counts 4 through 6 charge Eisenberg alone with obstruction of justice in violation of 18 U.S.C. § 1503. As to Count 1, the Superseding Indictment states Monarch, the enterprise, was a securities brokerage firm which was engaged in the business of underwriting, purchasing and selling securities primarily traded in the over-the-counter markets. Superseding Indictment, Count 1, ¶ 1. It is stated in Count 1 that Eisenberg was the owner and president of Monarch and, as such, directed the trading of securities in Monarch’s own brokerage account (the “Monarch Trading Account”). Id., ¶ 2. It is stated Cannistraro was a securities research analyst with Wood Gundy, Inc. (“Wood Gundy”), a brokerage firm located in New York City, New York. Id., ¶ 3. It is stated Bertoli was the former president of a brokerage firm not named in the Superseding Indictment and controlled and had a beneficial interest in several brokerage accounts maintained at Monarch. Id., 114. The pattern of racketeering engaged in by the Defendants is described as consisting of predicate acts of mail fraud, wire fraud, interstate transportation of money taken by fraud, securities fraud and obstruction of justice. Id., ¶ 9. Count 1 charges that from about January 1982 to at least January 1989, in the District of New Jersey and elsewhere, the Defendants participated in the affairs of Monarch through a pattern of racketeering activity, the object of which was to “use Monarch as a vehicle to engage in fraudulent securities trading practices and thereby obtain money and other things of value for the [Defendants____” Id., TUI 6-7. It is stated in Count 1 that the Defendants perpetrated such racketeering activity by maintaining accounts in which they had a beneficial interest and which were in the names of other persons or entities (“Nominee Brokerage Accounts”). Id., 118(a). It is stated that the Nominee Brokerage Accounts enabled the Defendants to surreptitiously engage in securities trading for their own personal benefit. Id. In addition, the Defendants are charged with engaging in such racketeering activity by preparing and distributing false and misleading research reports recommending the purchase of the securities of Astrosystems, Inc. (“Astrosystems”), Nature’s Bounty, Inc. (“Nature’s Bounty”), Liquidation Control, Inc. (“LCI”), Toxic Waste Containment, Inc. (“Toxic Waste”), High Technology Capital Corp. (“High Tech”) and Solar Age Manufacturing Corp. (“Solar Age”). Id., 118(b). It is further stated in Count 1 that the Defendants engaged in such racketeering activity by bribing the portfolio manager of the M & I Growth Fund (the “M & I Fund”), a trust fund, the portfolio manager of Aggressive Growth Shares, Inc. (the “Bullock Fund”), an investment company and mutual fund and the research analyst of Hallswell Corp. (“Hallswell”), a corporation which purchases and sells over-the-counter securities. Id., ¶ 8(c). It is stated Cannistraro and Eisenberg opened Nominee Brokerage Accounts at Monarch for the benefit of the M & I Fund and Bullock Fund portfolio managers and the Hallswell research analyst. These Nominee Brokerage Accounts “generate[d] large sums of money ... through the fraudulent trading of LCI and Toxic Waste securities.” Id. in exchange for such trading, the portfolio managers of the M & I Fund and Bullock Fund and the research analyst of Hallswell caused the M & I Fund and Bullock Fund and Hallswell to purchase large blocks of LCI, Toxic Waste and High Tech securities. Id. In addition, it is stated in Count 1 that the racketeering activity of the Defendants included non-disclosure of their interest in High Tech in order to enable them to raise capital for that company, control its management and policies and profit on the sale of its securities. Id., ¶ 8(d). Finally, it is stated that Cannistraro paid a witness in grand jury proceedings to conceal Cannistraro’s interest in a Nominee Brokerage Account at Monarch and Eisenberg secreted thousands of Monarch documents which were required to be produced pursuant to a grand jury subpoena. Id., ¶¶18(e)-(f). Count 1 charges the Defendants with engaging in racketeering activity through the execution of seven separate schemes. As to the first scheme (the “Astrosystems Scheme”), it is stated in Count 1 that between approximately October 1982 and approximately August 1983, in the District of New Jersey and elsewhere, the Defendants established Nominee Brokerage Accounts at Monarch and elsewhere to purchase Astrosystems securities from the investing public with the knowledge that favorable research reports were to be prepared by Cannistraro and disseminated by Wood Gundy to the investing public. Id., 1111. Count 1 identifies three such reports. It is charged the reports were misleading in that they did not disclose that the Defendants “had purchased Astrosystems securities based upon advance knowledge of the reports, and intended to profit on the sale of these securities once the dissemination of the reports had caused the price of Astrosystems securities to rise.” Id., ¶1¶ 12-13. Count 1 also states that as part of the Astrosystems Scheme, an article recommending the purchase of Astrosystems securities was prepared by Cannistraro and disseminated to the investing public in an industry newsletter, “Portfolio Letter,” dated 14 March 1983 (the “14 March 1983 Portfolio Letter”). Id., ¶ 14. It states this article did not disclose the scheme to defraud. Id. Count 1 further states the Defendants sold their Astrosystems securities without disclosing the scheme to defraud and obtained profits totalling at least $138,000 from such sale. Id., II15. Count 1 identifies by date and content six instances of mail fraud in violation of 18 U.S.C. § 1341, two instances of wire fraud in violation of 18 U.S.C. § 1343 and one instance of securities fraud in violation Section 10(b) and Rule 10b-5, all perpetrated by the Defendants in executing the Astrosystems Scheme. Id., ¶¶ 16-18. With respect to the second scheme (the “Nature’s Bounty Scheme”), Count 1 states that from approximately December 1982 to approximately March 1983 the Defendants engaged in a scheme involving the securities of Nature’s Bounty. Id., ¶¶ 19-20. It states that in or about January 1983, the Defendants used nominee and other brokerage accounts at Monarch and elsewhere, including the Monarch Trading Account, to purchase Nature’s Bounty securities from the investing public “with the knowledge that favorable research reports were to be prepared by [Cannistraro] and disseminated by Wood Gundy to the investing public, and with the expectation that the reports would cause the price of Nature’s Bounty securities to rise.” Id., ¶ 20. Count 1 identifies such reports and states they were false and misleading in that they “failed to disclose, among other things, that the [Defendants had purchased Nature’s Bounty securities based upon advance knowledge of the reports and intended to profit on the sale of these securities once the dissemination or anticipated dissemination of the reports had caused the price of Nature’s Bounty securities to rise.” Id., If 22. It alleges the Defendants sold their Nature’s Bounty securities “to the investing public without disclosing the scheme to defraud, and thereby fraudulently obtained profits totalling at least $220,000.” Id., ¶ 23. It identifies by date and content five instances of mail fraud, three instances of wire fraud and one instance of securities fraud in violation of Section 10(b) and Rule 10b-5, all perpetrated by the Defendants in executing the Nature’s Bounty Scheme. Id., ¶¶ 24-26. As to the third scheme (the “LCI Scheme”), Count 1 states that between approximately October 1982 and approximately November 1983, the Defendants engaged in a scheme concerning the securities of LCI. It alleges that in or about November and December 1982, the Defendants used nominee and other brokerage accounts at Monarch to purchase “substantial amounts of LCI securities at minimal cost during LCI’s initial public offering and during the first few days of public trading.” Id., ¶ 28. It states: “These purchases were made with the expectation that the price of LCI securities would rise as a result of, among other things, the issuance of a favorable research report to be prepared by [Cannistraro] but disseminated to the investing public as [the report of] G.K. Scott[, Inc.] [(“G.K. Scott”), a brokerage firm] ..., and the bribery of individuals to cause the purchase of large blocks of LCI securities.” Id., ¶ 28. Count 1 states Eisenberg and Cannistraro opened Nominee Brokerage Accounts at Monarch for the benefit of the M & I Fund and Bullock Fund portfolio managers and the Hallswell research analyst and “used these nominee accounts to generate large sums of money for the [portfolio managers] and the [research analyst] through the fraudulent trading of LCI and Toxic Waste securities.” Id., II29. It states: “In exchange the M & I [Fund] and Bullock [Fund portfolio managers] caused their respective funds to purchase large blocks of LCI securities, and the [Hallswell research analyst] caused Hallswell to open a brokerage account at Monarch that purchased a large block of LCI securities.” Id. Count 1 further states Cannistraro prepared a report which was disseminated to the investing public on G.K. Scott letterhead. Id., ¶ 30. It states this report recommended the purchase of LCI securities (the “LCI Report”) in order to artificially inflate the price of such securities. Id., ¶ 30. It states the LCI Report was false and misleading because it did not disclose that it was actually prepared by Cannistraro, that the Defendants purchased LCI securities based on advance knowledge of the dissemination of such report and that individuals had been bribed to cause the purchase of large amounts of LCI securities. Id., 1131. Count 1 states the Defendants sold their LCI securities to the investing public “without disclosing the scheme to defraud, and thereby fraudulently obtained profits total-ling at least $690,000.” Id., II32. Count 1 identifies by date and content six instances of mail fraud, five instances of wire fraud and one instance of securities fraud in violation of Section 10(b) and Rule 10b-5, all perpetrated by the Defendants in executing the LCI Scheme. Id., 111133-35. As to the fourth scheme (the “Toxic Waste Scheme”), Count 1 states that between approximately December 1982 and approximately October 1983, the Defendants engaged in a scheme concerning Toxic Waste securities. It states that in approximately February and March 1983, the Defendants used nominee and other accounts at Monarch and elsewhere “to purchase substantial amounts of Toxic Waste securities at minimal cost during Toxic Waste’s initial public offering and during the first few days of public trading.” Id., 1137. It further states that the “purchases were made with the expectation that the price of Toxic Waste securities would rise as a result of, among other things, the dissemination to the investing public of favorable Wood Gundy research reports to be prepared by [Cannistraro] and the bribery of individuals to cause the purchase of large blocks of Toxic Waste securities.” Id. It states that as part of the Toxic Waste Scheme, Eisenberg and Cannistraro used these nominee accounts to “generate large sums of money and securities for the [M & I Fund and Bullock Fund portfolio managers] through the trading of Toxic Waste securities.” Id., 1138. In addition, Count 1 states that as part of the Toxic Waste Scheme, Cannistraro caused Wood Gundy to disseminate to the investing public certain research reports recommending the purchase of Toxic Waste securities. Id., 1140. Count 1 identifies these reports by content and date, one of which it identifies as a five-page “Basic Report,” dated 17 March 1983 (the “Basic Report”). Id., II40. It states these reports were false and misleading in that they did not disclose that the Defendants had purchased Toxic Waste securities based on advance knowledge of the content and dissemination of the reports and that individuals had been bribed to cause the purchase of large amounts of Toxic Waste securities. Id., ¶¶ 40-41. In addition, Count 1 states Eisenberg caused over 18,000 copies of the Basic Report, which recommended the purchase of Toxic Waste securities, to be disseminated to brokers, research analysts, securities newsletter publishers, Monarch customers and others throughout the United States. Id., 1142. It also states that in approximately March and April 1983, Cannistraro caused to be prepared and disseminated to the investing public articles in the 14 March 1983 Portfolio Letter and in the 22 April 1983 edition of “Ground Floor,” a securities investment newsletter. Id., II43. It states these articles recommended the purchase of Toxic Waste securities without disclosing the scheme to defraud. Id. Count 1 states that from about March 1983 to about October 1983, the Defendants and others sold their Toxic Waste securities to the investing public without disclosing their scheme to defraud for a profit of $4,400,000. Id., ¶ 44. It identifies by date and content eleven instances of mail fraud, two instances of wire fraud, one instance of interstate transportation of money taken by fraud in violation of 18 U.S.C. § 2314 and one instance of securities fraud in violation of Section 10(b) and Rule 10b-5, all perpetrated by the Defendants in executing the Toxic Waste Scheme. Id., ¶¶ 45-48. As to the fifth scheme (the “Beneficial Owners Concealment Scheme”), Count 1 states that from about March 1983 to about November 1984, in the District of New Jersey and elsewhere, the Defendants executed a scheme to conceal the identities of the promoter and beneficial owners of High Tech. Id., ¶ 49. It states that in about March 1983, Bertoli became the promoter of High Tech, founding High Tech, appointing its officers, board of directors and advisory board, allocating the distribution of its securities and arranging for the initial public offering of its securities, which were underwritten by Monarch. Id., ¶ 50. Count 1 further states that prior to the public offering of the High Tech securities, the Defendants caused 3.1 million shares of High Tech common stock to be placed in the names of nominees while the shares were beneficially owned by the Defendants. Id., ¶ 51. It states the Defendants did not disclose in High Tech’s registration statements and prospectus the role of Bertoli as High Tech’s promoter and the Defendants’ beneficial ownership of more than 10% of High Tech’s common stock and more than 10% of High Tech’s outstanding stock. Id., ¶ 52. Count 1 states that having concealed such information, the Defendants raised $425,000 in capital for High Tech from the investing public. Id., ¶ 53. In addition, it states that from approximately February 1984 to approximately July 1984, the Defendants caused 3.1 million shares of High Tech common stock beneficially owned by them to be sold for a profit of at least $115,000. Id., ¶ 54. It identifies by content and date six instances of mail fraud, three instances of wire fraud and two instances of securities fraud in violation of 15 U.S.C. §§ 77g, 77x, 77aa(4), 77aa(6) and 77j(a)(l), all perpetrated by the Defendants in executing the Beneficial Owners Concealment Scheme. Id., ¶1¶ 55-58. As to the sixth scheme (the “High Tech Scheme”), Count 1 states the Defendants engaged in a scheme concerning High Tech securities from about March 1983 to about February 1984, in the District of New Jersey and elsewhere. It states that the Defendants used nominee and other brokerage accounts at Monarch and elsewhere to purchase High Tech securities at minimal cost during its initial public offering and during the first few days of public trading. Id., 11 61. It states: “These purchases were made with the expectation that the price of High Tech securities would rise as a result of, among other things, the bribery of individuals to cause the purchase of large blocks of High Tech securities, and the transfer of 200,000 shares of Solar Age common stock to High Tech.” Id. Count 1 states Eisenberg and Cannistraro allocated securities available as part of the High Tech initial public offering to the Nominee Brokerage Account of the Halls-well research analyst at Monarch. Id., ¶ 62. In exchange for such allocation, and in exchange for money which Eisenberg and Cannistraro provided to the Hallswell research analyst through their trading of LCI and Toxic Waste securities in the Hallswell nominee accounts at Monarch, the Hallswell research analyst caused Hallswell to purchase a large block of High Tech securities. Id. Count 1 states Eisenberg and Cannistraro entered into a similar arrangement with the M & I Fund portfolio manager, who agreed on similar terms to cause the M & I Fund to purchase a large block of High Tech securities under similar conditions. Id., ¶ 63. In addition, Count 1 states Bertoli and Cannistraro agreed with the president and vice president of Solar Age that in exchange for the transfer of 200,000 shares of Solar Age common stock to High Tech, Cannistraro would prepare a favorable research report recommending the purchase of Solar Age securities. Id., 1164. It states that in fact, Cannistraro prepared three such reports for dissemination by Wood Gundy and identifies such reports by date. Id., ¶ 65. It states such reports were disseminated by Wood Gundy to the investing public and were false and misleading in that they failed to disclose that the reports were prepared in exchange for the transfer of 200,000 shares of Solar Age stock to High Tech and that they were prepared in order to increase the value of High Tech’s. portfolio of securities. Id., 1166. Count 1 states that as a result of the dissemination of such reports, the price of Solar Age securities was artificially inflated and the transfer of Solar Age securities to High Tech thereby artificially increased the value of High Tech’s portfolio. Id., If 67. It states the fraudulently inflated value of High Tech securities was then publicized to the investing public in various newsletters and letters from High Tech. Id. Count 1 states that from about June 1983 to about February 1984, the Defendants sold their High Tech securities to the investing public without disclosing the scheme to defraud for a profit of at least $1,300,000. Id., 1168. It identifies by date and content nine instances of mail fraud, three instances of wire fraud and one instance of securities fraud in violation of Section 10(b) and Rule 10b-5, all perpetrated by the Defendants in executing the High Tech Scheme. As to the seventh and last scheme (the “Cover-Up Scheme”), Count 1 asserts Eisenberg and Cannistraro obstructed justice to conceal their wrongdoing. It states that a subpoena of a grand jury empaneled in the District of New Jersey was served on Monarch on 25 August 1985 requiring it to produce documents and to produce a records custodian to testify before the grand jury on 9 September 1985. Id., 111172-73. It states that at Eisenberg’s direction, Monarch’s corporate counsel misrepresented to the Office of the United States Attorney for the District of New Jersey that the documents responsive to the subpoena had previously been sent to the Chicago Strike Force of the Organized Crime and Racketeering Section of the United States Department of Justice (the “Chicago Strike Force”). Id., ¶ 74. In addition, Count 1 states that a subpoena of a grand jury empaneled in the District of New Jersey was served on Monarch on 14 July 1988 requiring it to produce documents and to produce a records custodian to testify before the grand jury on 2 August 1988. Id., 1177. It states Eisenberg misrepresented in a letter to the Office of the United States Attorney that certain of the documents responsive to the grand jury subpoena were previously sent by Monarch to the Chicago Strike Force in response to other grand jury subpoenas. Id., II78. It states that in fact, Eisenberg had removed these documents from Monarch’s offices and secreted them in a bakery in Brooklyn, New York (the “Brooklyn Bakery”). Id. Count 1 also states that on about 26 August 1987 the Office of the United States Attorney for the District of New Jersey served a subpoena duces tecum on Monarch, requiring it to produce documents on or before 9 September 1987 relative to the then upcoming trial of Cannistraro for the 1987 Indictment. The subpoena also required Monarch to produce a records custodian to testify at the trial of Cannistraro, scheduled to commence 24 September 1987. Id., 111181-83. In addition, an order was entered by the United States District Court for the District of New Jersey on 10 September 1987 requiring Monarch to produce the documents responsive to the subpoena by 5:00 p.m. on 11 September 1987. Id., 1183. Count 1 states that at the direction of Eisenberg, Monarch’s records custodian and corporate counsel misrepresented to the Federal Bureau of Investigation (the “FBI”) and to the Office of the United States Attorney that the documents Monarch was required to produce were previously sent to the Chicago Strike Force in response to other grand jury subpoenas. Id., 11 85. Count 1 states that in fact, the responsive documents not produced by Monarch were hidden at the Brooklyn Bakery. Id. Finally, Count 1 states a subpoena of a grand jury empaneled in the District of New Jersey was served on one- of Cannistraro’s nominees on or about 24 January 1986, requiring the nominee to produce documents and to testify before the grand jury. Id., ¶ 88. It states Cannistraro instructed and directed this nominee in return for cash payments to conceal Cannistraro’s beneficial ownership in the nominee’s Monarch account. Id., 1189. Count 2 of the Superseding Indictment charges the Defendants with conspiracy to violate RICO section 1962(c) by agreeing to conduct the affairs of Monarch through a pattern of racketeering in violation of RICO section 1962(d). It charges the conspiracy existed from about January 1982 to at least about January 1989 in the District of New Jersey and elsewhere. Superseding Indictment, Count 2, ¶ 2. It lists seventeen overt acts perpetrated by the Defendants in furtherance of their conspiracy, including their meeting on 17 May 1983 with the president of G.K. Scott and other G.K. Scott personnel to discuss the purchase of a “large block of the securities of a public corporation in exchange for a favorable Wood Gundy research report by Cannistraro,” overt act number 1, false and misleading testimony by Eisenberg to the SEC on 26 March 1984 and 9 August 1984, overt act numbers 2 and 3, and 1987 and 1988 deliveries by Eisenberg of several boxes and file cabinets containing Monarch documents to the Brooklyn Bakery, overt act numbers 15 and 16. Count 3 charges the Defendants with conspiracy in violation of 18 U.S.C. § 371 to violate Section 10(b) and Rule 10b-5 in connection with the purchase and sale of Solar Age securities. Superseding Indictment, Count 3, ¶ 2. Count 3 states the conspiracy existed between about May 1983 and about October 1985 in the District of New Jersey and elsewhere. Id. It states that as part of this conspiracy, Bertoli and Cannistraro agreed with the president and vice president of Solar Age that in exchange for the transfer of 200,000 shares of Solar Age common stock to High Tech, Cannistraro would prepare a favorable research report recommending the purchase of Solar Age securities for dissemination to the investing public by Wood Gundy. Id., ¶ 3. It states that it was additionally part of the agreement that Bertoli and High Tech, in exchange for the Solar Age common stock, would obtain additional financing for Solar Age by means of a secondary public offering of securities. Id. Count 3 states that in or about June 1983, the Defendants used Nominee Brokerage Accounts to purchase Solar Age securities with the advance knowledge of the favorable research reports to be disseminated by Wood Gundy and with the expectation that the price of Solar Age securities would rise as a result of such reports. Id., ¶ 5. It states Cannistraro prepared and caused Wood Gundy to disseminate to the investing public research reports recommending the purchase of Solar Age securities. Id. It states these research reports were false and misleading in that they failed to disclose that they were prepared by Cannistraro in exchange for the transfer of 200,000 shares of Solar Age common stock to High Tech. In addition, it states the Defendants had purchased Solar Age securities based on advance knowledge of the reports and intended to profit on the sale of the Solar Age securities after the dissemination of the reports caused the price of the securities to rise. Id. Count 3 states that between about June 1983 and about December 1983, the Defendants sold their Solar Age securities to the investing public, without disclosing their scheme to defraud, for a profit of at least $265,000. Id., ¶ 6. Count 3 further states that the secondary public offering of Solar Age securities arranged by Bertoli raised over $990,000 for Solar Age. Id., ¶ 7. Count 3 lists sixteen overt acts committed by the Defendants between June 1983 and September 1985 in furtherance of this conspiracy. These overt acts are too numerous to set forth in full. However, they include a 6 June 1983 meeting attended by Bertoli, Cannistraro and the executive vice president of Solar Age in New York City, New York, overt act numbers 1 and 2, various telephone calls and correspondence made on 6 June 1983 and 20 June 1983 by Solar Age personnel at the prompting of Bertoli and Cannistraro, overt act numbers 4, 5 and 6, the 28 June 1983 wire transmission by Wood Gundy, made at the prompting of Cannistraro, of a research report recommending the purchase of Solar Age securities, overt act number 9, and the August and September 1985 mailing of the Solar Age prospectus in connection with the secondary offering of Solar Age securities, overt act number 15. Finally, Counts 4, 5 and 6 charge Eisenberg alone with obstruction of justice in violation of 18 U.S.C. § 1503. These counts incorporate by reference the factual allegations relating to the Cover-Up Scheme described in Count 1. Count 4 charges that from about August 1985 to about September 1985, in the District of New Jersey and elsewhere, Eisenberg secreted Monarch documents which were required to be produced pursuant to a grand jury subpoena duces tecum. Superseding Indictment, Count 4, ¶¶ 1-2. The grand jury had been empaneled by the United States District Court for the District of New Jersey on or about 18 March 1985. Id. Count 4 states Eisenberg prevented Monarch from producing documents responsive to a subpoena served on Monarch on 25 August 1985 by directing Monarch’s records custodian to misrepresent to the Office of the United States Attorney for the District of New Jersey that the documents were previously sent to the Chicago Strike Force. Id. Count 5 charges that from about July 1988 to about September 1988, in the District of New Jersey and elsewhere, Eisenberg concealed various Monarch documents which were required to be produced pursuant to the subpoena of a grand jury empaneled in the District of New Jersey on 17 March 1987 and caused false and misleading sworn testimony to be provided to the grand jury. Superseding Indictment, Count 5, ¶¶ 1-2. It states that in response to the subpoena, which was served on Monarch on 14 July 1988 and which required Monarch to produce documents and a records custodian to testify on 2 August 1988 before the grand jury, Eisenberg misrepresented in a letter to the Office of the United States Attorney that certain of these documents were previously sent to the Chicago Strike Force in response to other grand jury subpoenas. Id. It states that in fact, Eisenberg had previously secreted such documents in the Brooklyn Bakery. Id. In addition, Count 5 states that at the direction of Eisenberg, Monarch’s records custodian testified under oath before the grand jury that documents responsive to the grand jury subpoena and not produced had previously been sent by Monarch to the Chicago Strike Force in response to other grand jury subpoenas. Id. Finally, Count 6 states that from about August 1987 to about September 1987, Eisenberg secreted Monarch documents which were required to be produced pursuant to a trial subpoena duces tecum and an order of the United States District Court for the District of New Jersey. Superseding Indictment, Count 6, ¶¶ 1-2. It states that a trial subpoena duces tecum was served on Monarch on or about 26 August 1987 in connection with the trial of Cannistraro for the crimes charged in the 1987 Indictment. It states this subpoena required Monarch to produce documents to the Office of the United States Attorney on or before 9 September 1987 and to produce a records custodian to testify at trial, then scheduled for 24 September 1987. Id. It further states that on or about 10 September 1987, the United States District Court for the District of New Jersey issued an order requiring Monarch to produce the documents responsive to the subpoena. Id. It states that Monarch’s records custodian, at Eisenberg’s direction, misrepresented to the Office of the United States Attorney and to the FBI that such documents were previously sent to the Chicago Strike Force in response to other grand jury subpoenas, when in fact they were secreted by Eisenberg at the Brooklyn Bakery. Id. Discussion I. Discovery-Related and Miscellaneous Motions A. Motion for Statements of Co-Conspirators Bertoli, joined by Eisenberg, moves for disclosure by the Government of the statements of unindicted co-conspirators. Bertoli argues such statements are discoverable as his own statements under Fed. R.Crim.P. 16(a)(1)(A). Bertoli Discovery Brief at 16. In addition, Bertoli argues such statements are discoverable under Fed.R.Crim.P. 16(a)(1)(C). Id. at 16-17 (citing United States v. Enright, 579 F.2d 980 (6th Cir.1978); Government of Virgin Islands v. Ruiz, 495 F.2d 1175 (3d Cir.1974); United States v. Smith, 65 F.R.D. 464, 473 (N.D.Ga.1974); United States v. McMillen, 489 F.2d 229 (7th Cir.1972), cert. denied, 410 U.S. 955, 93 S.Ct. 1420, 35 L.Ed.2d 687 (1973); United States v. Bloom, 78 F.R.D. 591 (E.D.Pa.1977)). Some courts have held that on a broad reading of Rule 16(a)(1)(A), it is possible to regard the statements of co-conspirators made during the course of and in furtherance of a conspiracy as the statements of the defendant and discoverable as such. 2 C. Wright, Federal Practice and Procedure, § 253 n. 17 (1982 & Supp.1987); United States v. Jackson, 757 F.2d 1486, 1491 (4th Cir.) (statements of a eo-conspirator may be imputed to a defendant under Federal Rule of Evidence 801(d)(2)(E) and are discoverable under Federal Rule of Criminal Procedure 16(a)(1)(A)), cert. denied, 474 U.S. 994, 106 S.Ct. 407, 88 L.Ed.2d 358 (1985); United States v. Konefal, 566 F.Supp. 698, 705-07 (N.D.N.Y.1983); Even under this broad interpretation of Rule 16(a)(1)(A), however, discovery of the statements of co-conspirators may only be permitted on a Rule 16 motion if the Government does not intend to call such co-conspirators as witnesses at trial. Jackson, 757 F.2d at 1491; Konefal, 566 F.Supp. at 706. If the Government intends to call such co-conspirators as witnesses, the Jencks Act, 18 U.S.C. § 3500, expressly makes statements of Government witnesses, including co-conspirators, not discoverable until such time as the witness testifies. 18 U.S.C. § 3500(a). This broad interpretation of Rule 16(a)(1)(A) is not adopted. The weight of authority does not support extending Rule 16(a)(1)(A) beyond its literal mandate requiring disclosure of a defendant’s own statements. See, e.g., United States v. Mayberry, 896 F.2d 1117, 1122 (8th Cir. 1990); Tarantino, 846 F.2d at 1418 (holding Rule 16(a)(1)(A) does not include statements made by co-conspirators even if those statements can be attributed to the defendant for purposes of the rule against hearsay); Orr, 825 F.2d at 1541 (Rule 16(a)(1)(A) does not apply to co-eonspirators’ statements); United States v. Roberts, 811 F.2d 257 (4th Cir.1987) (en banc) (plain language of Rule 16(a)(1)(A) does not mention and is not intended to apply to statements made by co-conspirators; such statements are more properly governed by the Jencks Act); Percevault, 490 F.2d at 130-32 (Rule 16(a) does not encompass statements made by co-conspirators who are potential government witnesses and the Jencks Act does not permit their disclosure). See also In re United States, 834 F.2d 283, 284-86 (2d Cir.1987) (in which the Second Circuit cited with favor its previous decision in Percevault, 490 F.2d at 126); United States v. Fischbach & Moore, Inc., 576 F.Supp. 1384, 1390 (W.D.Pa.1983) (rejecting broad interpretation of Rule 16 and expressing the view that co-conspirators’ statements are within the purview of the Jencks Act and not within the reach of Rule 16). To the extent the statements of co-conspirators encompass exculpatory information, the Government has pledged to comply with its obligations under Brady. Government Brief at 71. In addition, as mentioned, the statements of eo-conspirators may be discoverable under the Jencks Act, if the co-conspirators testify at trial. Roberts, 811 F.2d at 259; Fischbach & Moore, Inc., 576 F.Supp. at 1390; United States v. Wolczik, 480 F.Supp. 1205, 1209 (W.D.Pa.1979); see Fed.R.Crim.P. 16(a)(2) (citing 18 U.S.C. § 3500). Under the Jencks Act and Rule 26.2 of the Federal Rules of Criminal Procedure, which incorporates the substance of the Jencks Act, a defendant may request the pretrial statements of a Government witness that relate to his testimony once the witness has finished testifying on direct examination. The Jencks Act states: “[N]o statement or report in the possession of the United States which was made by a Government witness ... shall be the subject of subpena [sic], discovery, or inspection until said witness has testified on direct examination in the trial of the case.” 18 U.S.C. § 3500(a). As the Third Circuit explained in United States v. Murphy, 569 F.2d 771 (3d Cir.), cert. denied, 435 U.S. 955, 98 S.Ct. 1588, 55 L.Ed.2d 807 (1978): “The blunt command of the statute together with the unequivocal legislative history has led to unbroken precedent in the Courts of Appeals denying to district courts the power to compel production of the statements of government witnesses until conclusion of direct examination at the trial.” Id. at 773. In the instant case, the Government has indicated it will disclose any Jencks Act material the day before the witness testifies, Government Brief at 61 n. 30, although it is not required to do so. The request by Bertoli, joined by Eisenberg, under Rule 16 for statements of co-conspirators is denied. B. Motion for List of Government Witnesses Bertoli, joined by Eisenberg, seeks an order compelling disclosure by the Government of the witnesses it will call at trial. He argues such disclosure is warranted, inter alia, in light of the complexity of this case and in light of the lack of showing by the Government of any risk that witness intimidation would result from disclosure. This motion is baseless. A defendant in a noncapital case does not have a right to discover a list of prospective Government witnesses. Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 845, 51 L.Ed.2d 30 (1977) (due process does not require Government to provide names of witnesses unfavorable to defendant); Government of the Virgin Islands v. Martinez, 847 F.2d 125, 128 (3d Cir.1988) (“[T]he government is not automatically required to disclose the name[s] of ... witnesses] in a non-capital criminal case.”); United States v. Di Pasquale, 740 F.2d 1282, 1294 (3d Cir.1984) (Government is not required to divulge the identity of its witnesses in a non-capital case), cert. denied, 469 U.S. 1228, 105 S.Ct. 1226, 84 L.Ed.2d 364 (1985); United States v. Addonizio, 451 F.2d 49, 62 (3d Cir.1971) (“[I]n no event is the Government required to divulge the identity of its witnesses in a non-capital case.”), cert. denied, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812, reh’g denied, 405 U.S. 1048, 92 S.Ct. 1309, 31 L.Ed.2d 591 (1972). It is within the discretion of a court to “order such disclosure to ensure the effective administration of the criminal justice system.” United States v. Higgs, 713 F.2d 39, 44 n. 6 (3d Cir.1983), cert. denied sub nom., 464 U.S. 1048, 104 S.Ct. 725, 79 L.Ed.2d 185 (1984). However, it is likewise within the discretion of a court to refuse to compel such disclosure where such disclosure may endanger the witnesses. Martinez, 847 F.2d at 128. A request to compel disclosure has been denied where no compelling justification for such disclosure was offered. See United States v. Zolp, 659 F.Supp. 692, 704 (D.N.J.1987) (“The Third Circuit does not require that the Government divulge its trial witnesses and defendants herein have presented no compelling justification for departing from this settled principle.”). In addition, disclosure has been denied even in complex cases. See, e.g., Zolp, 659 F.Supp. at 704; United States v. Vastola, 670 F.Supp. 1244, 1268 (D.N.J.1987). Bertoli does not contend he is entitled to the list of Government witnesses he seeks. Rather, he argues this court has discretionary power to order such disclosure and that it is warranted in this case because the need of the defense for the disclosure of prospective witnesses outweighs the Government’s interest in not divulging the identities of the witnesses or the content of its case in advance of trial. Bertoli, however, has not presented any justification, much more compelling justification, for such sweeping discovery in this case. In addition, compelling reasons exist to refuse such disclosure. The Government submitted the affidavit of FBI Special Agent Michael J. Cahill (“Cahill”) to support its contention that Eisenberg and Bertoli have attempted to buy the silence of Cannistraro. Cahill asserted: “My investigation has revealed evidence that Richard Bertoli and Leo Eisenberg have promised Richard Cannistraro one million dollars for every year he spent in jail in return for Cannistraro’s silence about the illegal activities of the Monarch RICO enterprises.” Cahill Aff., ¶ 2. In addition, the Superseding Indictment charges Eisenberg with obstructing justice by directing the Monarch records custodian to misrepresent to the Office of the United States Attorney, and to do so under oath during grand jury proceedings, that subpoenaed documents had previously been sent to the Chicago Task Force. It also charges that Eisenberg obstructed justice by secreting certain subpoenaed documents in the Brooklyn Bakery. Moreover, Cannistraro pleaded guilty to the 1987 Indictment which charged him with obstructing justice by providing money to a grand jury witness in an effort to have the witness lie under oath to the grand jury about the witness’ stock nominee relationship with Cannistraro. See Cannistraro, 694 F.Supp. at 65. Although not required to do so, the Government has agreed to provide the Defendants with a list of unindicted co-conspirators and co-racketeers. Government Brief at 57 n. 26 and 74 n. 33. Bertoli’s motion for an order compelling the Government to disclose its witness list is denied. C. Motion for Giglio Material Bertoli, joined by Eisenberg, additionally seeks impeaching materials possessed by the Government as to its witnesses. Such material is discoverable pursuant to Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). In Giglio, the Supreme Court extended the rule set forth in Brady, 373 U.S. at 83, 83 S.Ct. at 1194, requiring the Government to disclose to the defendant exculpatory material in its possession, to encompass information that might be used to impeach the credibility of Government witnesses when the reliability of those witnesses could be determinative of guilt or innocence. Id. 405 U.S. at 154, 92 S.Ct. at 766. Evidence that might be used to impeach Government witnesses by showing bias or interest has been deemed to fall within the purview of Giglio. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); Higgs, 713 F.2d at 42. In Higgs, the Third Circuit held a defendant's due process right to a fair trial is satisfied when information relating to the credibility of Government witnesses is disclosed the day the witnesses are scheduled to testify. Higgs, 713 F.2d at 44. The Circuit explained the requirements of due process depend upon what information has been requested and how that information will be used by the defendant. Id. at 43-44. In Higgs, the defendant made a specific request for the names and addresses of Government witnesses who were granted immunity or leniency and for the substance of any agreements between those witnesses and the Government. Id. at 42. The Circuit stated: The Brady material in this case was information that appellees could use on cross-examination to challenge the credibility of government witnesses. For that type of material, we think appellee’s right to a fair trial will be fairly protected if disclosure is made the day that the witness testifies. Disclosure at that time will fully allow appellees to effectively use that information to challenge the veracity of the government’s witnesses. Id. at 44 (emphasis added). The Higgs court held it was an abuse of discretion for the trial court to order disclosure of the material a week prior to trial. In so holding, the court observed the purpose of requiring disclosure of impeachment information is not to assist the defense in a general pretrial investigation, but only to give the defense an opportunity to effectively cross-examine the Government’s witnesses at trial. See id. at 44-45. Here, the Government has indicated it will disclose any Giglio material in its possession the day before the witness testifies. Government Brief at 61. In addition, the same reasons set forth above for denying Bertoli’s motion for disclosure of the Government’s witnesses also weigh against ordering disclosure of Giglio material at this time. Bertoli’s motion for early disclosure of Giglio material is denied. D. Motions for Disclosure of Rule 404(b) Evidence the Government Intends to Admit Bertoli and Eisenberg seek disclosure of Rule 404(b) Evidence the Government intends to admit concerning other crimes, wrongs or acts by Bertoli and Eisenberg in order to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident with respect to the offenses charged. Bertoli Discovery Brief at 14; Eisenberg Brief at 11-13. Bertoli argues: “The importance of disclosure of evidence of other crimes, wrongs, or acts is apparent____ [P]re-trial disclosure of the Government’s intention to use such evidence would enable the court to make a carefully reasoned judgment with respect to the admissibility of such evidence.” Id. at 15. Eisenberg argues pre-trial disclosure of such evidence “would minimize any improper prejudicial effect of this evidence.” Eisenberg Brief at 12. Questions as to the admissibility of prior bad acts under Rule 404(b) are properly asserted during trial, not at the pretrial stage. Vastola, 670 F.Supp. at 1268 (it would be “unduly speculative” to rule on the admissibility of “other acts” evidence before hearing the factual context at trial); see United States v. Matos-Peralta, 691 F.Supp. 780, 791 (S.D.N.Y.1988) (disclosure of Rule 404(b) material not subject to minimum time limit because relevance will change as “the proof and possible defenses crystallize”). Federal Rules of Criminal Procedure 12(d)(2) requires the Government to give notice of its intention to use evidence at the request of the defendant. This rule, however, is limited to evidence needed for a defendant’s motion to suppress and to evidence discoverable under Fed.R.Crim.P. 16. Although a defendant’s prior criminal record is discoverable under Rule 16, evidence of prior bad acts is not. See Fischbach & Moore, Inc., 576 F.Supp. at 1384; United States v. Ramirez, 602 F.Supp. 783 (S.D.N.Y.1985) (defendant’s request for pretrial hearing to determine admissibility of alleged prior or subsequent similar act denied; defendant instructed to seek ruling during course of trial). Prior to the Supreme Court’s decision in Huddleston v. United States, 485 U.S. 681, 687, 108 S.Ct. 1496, 1500, 99 L.Ed.2d 771 (1988), courts encouraged pretrial disclosure by the Government of its intention to introduce evidence of prior bad acts. See United States v. Foskey, 636 F.2d 517, 525-26 (D.C.Cir.1980); Fischbach & Moore, Inc., 576 F.Supp. at 1397-98. This early disclosure has been encouraged in order to facilitate the court’s determination as to the admissibility of evidence under Rule 404(b). In order for bad acts evidence to be admissible, the Government must establish the relevancy of the evidence to a material issue other than character, such as motive, opportunity, intent, identity or absence of mistake or accident. See Huddleston, 485 U.S. at 687, 108 S.Ct. at 1500; Foskey, 636 F.2d at 523. In Huddleston, the Court explained that “[i]n the Rule 404(b) context, similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor.” Huddleston, 485 U.S. at 689, 108 S.Ct. at 1501. After the threshold determination is made that the evidence is probative of one of the issues listed in Rule 404(b), the court must determine “whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 403.” Huddleston, 485 U.S. at 688, 108 S.Ct. at 1500 (quoting Fed.R.Evid. 404(b) advisory committee note); Foskey, 636 F.2d at 523. In Huddleston, the Court indicated that “the strength of the evidence establishing the similar act is one of the factors the court may consider when conducting the Rule 403 balancing.” Huddleston, 485 U.S. at 689 n. 6, 108 S.Ct. at 1501 n. 6. In Foskey, the D.C. Circuit suggested that the Government should exercise its discretion under Fed.R.Crim.P. 12(d)(1) and notify the defense before trial of its intention to introduce any evidence of prior bad acts. Foskey, 636 F.2d at 526 n. 8. The court indicated further that if the defense raised a motion to suppress, the Government should then supply the district court with a written analysis of the logical inferences justifying admission of the evidence. Given the complexity of these questions, the court reasoned such a procedure would obviate the need for speculation regarding the Government’s theory -of the relevance of the evidence to the issues listed in Rule 404(b). Id. The Foskey court explained: Rules 403 and 404(b) are not obstacles to be cleared at all costs, even by cutting around corners whenever it is possible to do so. These rules were designed to ensure a defendant a fair and just trial based upon the evidence presented, not upon impermissible inferences of criminal predisposition or by confusion of the issues. The district court, required to make on-the-spot decisions, does not have the luxury of engaging in the type of careful balancing we have undertaken here---- There is a large measure of responsibility in the prosecutor to weigh the evidence independently: if its relevance is outweighed by the danger of unfairly prejudicing, confusing, or misleading the jury, it should not be introduced. The assistant United States attorney must step back from his or her partisan role and make these determinations in an objective and fair-minded fashion before proffering the evidence. Id. at 525-26. Similarly, the district court in Fischbach encouraged the Government to exercise its discretion and disclose to the defense bad acts which it intended to introduce at trial. Fischbach & Moore, Inc., 576 F.Supp. at 1397-98 (quoting Foskey, 636 F.2d at 525-26). The court pointed out, however, that “[w]hile we believe this early disclosure is to be encouraged, we know of no authority requiring the government to disclose such information.” Id. at 1398. Although the Foskey decision offered various reasons for early disclosure and the Fischbach decision encouraged such disclosure, it is significant that in Huddleston, a unanimous decision, the Supreme Court did not mandate or even address the timing of such disclosure. In light of the holdings of Foskey and Fischbach, as well as of other cases, it appears that the Supreme Court was aware of such pretrial discovery requests concerning Rule 404(b) Evidence but chose to continue the procedure of allowing the Government to determine when such pretrial disclosure will be made. In the instant case, the Government asserts: “Should the United States seek to offer any evidence pursuant to Rule 404(b), it will notify the [cjourt and the [Defendants prior to the introduction of such evidence. This will afford the [Defendants adequate notice, and the [ceurt adequate time, to weigh the probative value of the evidence against its possible prejudicial impact.” Government Brief at 64. The motions of Bertoli and Eisenberg for pre-trial disclosure of Rule 404(b) Evidence are denied. E. Motion for Identification of Brady Material Among Documents Previously Produced Bertoli, joined by Eisenberg, seeks an order compelling the Government to identify the specific documents among the materials thus far produced which constitute Brady material. Bertoli Discovery Brief at 37. In response, the Government asserts it has no obligation to identify Brady material among documents produced, but has an obligation only to make available to the Defendants Brady material in its possession to which the Defendants do not have access or to which the Defendants could not obtain access through the exercise of reasonable diligence. Government Brief at 66. The Government argues the identification of Brady material is information which the Defendants could ascertain through the .exercise of reasonable diligence. Id. at 67. The Government asserts its records indicate that between 10 November 1989 and 9 February 1990, representatives of the Defendants spent over 100 hours reviewing these documents and deciding which documents it would seek to have copied. Id. at 65. Brady is “designed to ‘assure that the defendant will not be denied access to exculpatory evidence only known to the Government.’ ” United States v. Grossman, 843 F.2d 78, 85 (2d Cir.1988) (quoting United States v. LeRoy, 687 F.2d 610, 619 (2d Cir.1982), cert. denied, 459 U.S. 1174, 103 S.Ct. 823, 74 L.Ed.2d 1019 (1983)) (emphasis added), cert. denied, 488 U.S. 1040, 109 S.Ct. 864, 102 L.Ed.2d 988, reh’g denied, 490 U.S. 1059, 109 S.Ct. 1974, 104 L.Ed.2d 442 (1989). As the Third Circuit has stated, “ ‘the [Government is not obliged under Brady to furnish a defendant with information which he already has or, with any reasonable diligence, he can obtain himself.’ ” United States v. Starusko, 729 F.2d 256, 262 (3d Cir.1984) (quoting United States v. Campagnuolo, 592 F.2d 852, 861 (5th Cir.1979)). See also United States v. Wilson, 901 F.2d 378, 381 (4th Cir.1990); United States v. Meros, 866 F.2d 1304, 1309 (11th Cir.), cert. denied, 493 U.S. 932, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989); United States v. Newman, 849 F.2d 156, 161 (5th Cir.1988). The Government represents it has complied with its Brady obligations. Bertoli does not assert that the Government has concealed exculpatory evidence. Rather, he asserts that he should not have to expend the effort required to review a substantial number of documents in order to ascertain whether they