Full opinion text
MEMORANDUM-DECISION AND ORDER MUNSON, Senior District Judge. Presently before the court are defendants Miller, Lindsey, Watson, Felton, Cobb, Chaney, Howard and Belgrove’s criminal omnibus motions, which number well over 150 individual motions. In the second superseding indictment containing 27 counts, each of the defendants are charged with, inter alia, conspiracy to possess with intent to distribute cocaine, cocaine base, marijuana, and methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Oct. 19, 1995 Second Superseding Indictment, Document (“Doe.”) 218. Several defendants are charged with engaging in a Continuing Criminal Enterprise, in violation of 21 U.S.C. § 848(a) and (c), and 18 U.S.C. § 2. Id. The court heard oral argument on March 1, 1995 at Syracuse, New York. The following constitutes the court’s Memorandum-Decision and Order (“MDO”) with regard to the instant motions. BACKGROUND Defendants Tommy Walker and Prentis Lindsey are named in the first count of the indictment which alleges that they operated a “Continuing Criminal Enterprise” in that they supervised the distribution of drugs in Utica, Rome and Auburn, New York, in violation of 21 U.S.C. § 848(a) and (c). The second count of the indictment charges defendants Lindsey and Walker along with all of their named codefendants with conspiring to distribute and possess with the intent to distribute controlled substances including cocaine, cocaine base, methamphetamine, and marijuana between 1991 and March 1995, in violation of 21 U.S.C. §§ 841 and 846. Counts 3, 4, and 5 refer to firearm possession and sales by Tommy Walker in Utica, New York. Counts 7 through 12 involve undercover purchases of drugs from defendant Walker. Counts 13 and 14 pertains to drugs seized from a vehicle that was occupied by defendants David Kyles and Gregory Leon Whitehurst. Count 15 refers to drugs seized from a vehicle used by defendant Kevin Watson in Auburn, New York. Counts 16 through 19 pertain to drugs and weapons seized from a residence in Utica, New York, pursuant to a warrant to search the home of defendant Walker and defendant Tracey Blackwell. Defendant Gary Miller was also present when the warrant was executed. Counts 20 through 25 refer to weapons seized pursuant to a warrant to search the home of Cynthia Chaney and Raymond Cobb in Utica, New York. Count 26 charges defendants Walker and Lindsey with conspiracy to possess and deal in firearms. Lastly, count 27 is a criminal forfeiture brought pursuant to 21 U.S.C. § 853, seeking forfeiture of illegally obtained assets in the amount of approximately $185,000. DISCUSSION 1. Bill of Particulars Defendants request a bill of particulars specifying items, too numerous to list here, pertaining to the crimes that defendants allegedly committed. Whether to grant a motion for a bill of particulars lies within the sound discretion of the court. United States v. Torres, 901 F.2d 205, 234 (2d Cir.1990) (citing United States v. Panza, 750 F.2d 1141, 1148 (2d Cir.1984)); Fed. R.Crim.P. 7(f). A bill of particulars serves to “apprise a defendant of the nature of the charges against him, so that he can adequately prepare a defense, avoid prejudicial surprise at trial, and plead double jeopardy in that or any subsequent related action.” United States v. Greater Syracuse Bd. of Realtors, Inc., 438 F.Supp. 376, 379 (N.D.N.Y.1977) (Munson, J.); see also United States v. Feola, 651 F.Supp. 1068, 1132 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (2d Cir.1989) (citations omitted). If a defendant is supplied with adequate information to prepare a defense, then the court may deny the motion. Id. A bill of particulars is not to be used as a general investigative tool for the defendant, or a device through which to learn the government’s evidence or legal theories prior to trial. United States v. Biaggi, 675 F.Supp. 790, 809 (S.D.N.Y.1987). Because redundant information is not necessary to prepare a defense, defendants are not entitled to discover through a bill of particulars information which is already available to them through other sources. Feola, 651 F.Supp. at 1182. In determining whether a bill of particulars is warranted, the court should consider “the complexity of the offense, the clarity of the indictment, and the degree of discovery otherwise available to the defendants.” United States v. Diaz, 675 F.Supp. 1382, 1390 (E.D.N.Y.1987) (quoting United States v. Shoher, 555 F.Supp. 346, 349 (S.D.N.Y.1983)). Furthermore, demands for particulars regarding the formation of a conspiracy have almost universally been denied. Matters such as the exact time and place of the overt acts and names of the persons present are not properly the subject of a bill of particulars. United States v. Wilson, 565 F.Supp. 1416, 1438 (S.D.N.Y.1983) (quoting United States v. Kahaner, 203 F.Supp. 78, 84 (S.D.N.Y.1962)). The details regarding how and when a conspiracy was formed, or when each participant entered it, need not be revealed before trial. Feola, 651 F.Supp. at 1132. In fact, detailed evidence of a conspiracy is generally unavailable to defendants through a bill of particulars, and overt acts in furtherance of the conspiracy need not be disclosed. United States v. DeFabritus, 605 F.Supp. 1538, 1548 (S.D.N.Y.1985). Defendants are not entitled to the locations, other than those listed in the indictment, at which they are alleged to have violated the statute provided that this information is made available to defendants in a manner sufficient to enable them to properly prepare for trial. Feola, 651 F.Supp. at 1133 (citing United States v. Massino, 605 F.Supp. 1565, 1582 (S.D.N.Y.1985)). “Nor are defendants entitled to receive, by way of a bill of particulars, all documents which would in any way tend to verify the meetings or activities described in the overt acts; the exact time and place of each overt act in the indictment; the names and addresses of persons present diming the meetings; nor all meetings at which the defendant was present.” Feola, 651 F.Supp. at 1133 (citation omitted). Items which have been held by other courts to be subject to disclosure through a bill of particulars include: “the names of all persons the Government will claim to have been co-conspirators, to the extent such persons are known to the Government; the locations of acts set forth in the counts, to the extent performed by principals; and the place where the principal offense charged allegedly occurred.” Feola, 651 F.Supp. at 1133 (citations omitted). However, even these items may be exempt from disclosure if the information would reveal the government’s theory underlying those counts. Id. In the case at bar, the court reviewed each specific request by the defendants and finds, in view of the principles listed above, that the government has already provided each defendant with information specific enough to prepare a defense with reasonably diligent effort, avoid unfair surprise, and prepare a double jeopardy pleading, if applicable. The indictment is detailed, and significant discovery materials already have been provided to the parties. It is worth noting that the indictment contains an introductory section setting forth a somewhat detailed description of the structure of the alleged criminal organization and the roles each defendant held in that organization. Oct. 19, 1995 Second Superseding Indictment (“Indictment”), Doe. 94, at 1-8. The indictment also advises each defendant, with three exceptions discussed below, as to the time and place of alleged crimes and the names of codefendants. Each count in the indictment also contains the date, location and substance of the conduct that is alleged regarding the defendants named in those counts. It is especially noteworthy that the government has already provided defendants with extensive documents, and has provided them with the opportunity to inspect physical evidence, including photographs, audiotape recordings, laboratory reports, investigative reports and witness statements obtained from various law enforcement agencies. Although the court finds that the government has disclosed substantial materials to defendants, certain additional information requested by three of the defendants must be provided by the government. In particular, the court notes that defendants Howard, Bel-grove and Felton are named only in count 2 of the indictment, charging them generally with conspiracy to possess and distribute certain narcotics. Count 2 is broadly drafted in that it alleges the defendants committed illegal acts at some point(s) during a four year period. The only other place at which defendants Howard, Belgrove and Felton are mentioned in the indictment is in the “introductory"’ section, which is incorporated by reference into Count 2. In the introductory section, defendant Howard is alleged to have been “a member of the conspiracy who stored drugs for Tommy Walker and others.” Indictment, Doc. 94, at 7. Defendant Bel-grove is alleged to have been “a member of the conspiracy and transported drugs from New York City to Central New York.” Id. With regard to defendant Felton, the indictment alleges that he “was a member of the conspiracy and acted, at time, as a foremen [sic] and drug seller.” Id. In contrast, the remainder of the indictment, Counts 3 through 27, names the other defendants with each count particularizing the nature of the conduct and the dates of offenses. In order to allow defendants adequate information to prepare a defense, the government must provide a single bill of particulars setting forth information to the extent discussed below. First, with regard to defendant Howard, the government must specify to the extent presently known, what types of narcotics were allegedly stored for defendant Walker and the dates those narcotics were stored. Second, with regard to defendant Belgrove, the government must specify to the extent presently known, what types of narcotics were allegedly transported by the defendant, and the dates those narcotics were transported. Third, with regard to defendant Felton, the government must specify to the extent presently known, the dates that he allegedly acted as a narcotics foreman and seller, and the types of narcotics that were involved in those transactions. Lastly, to the limited extent discussed below regarding defendant Miller’s request to consolidate counts 16 and 18 as multipliei-tous, the government must specify to the extent presently known information sufficient to enable those defendants to distinguish the offenses charged under those counts. II. Identity of Confidential Informants Defendants call upon the government to provide identity and background information of any informants that the government intends to call as a witness. To encourage knowledgeable persons to communicate information about wrongdoing to the government, the law recognizes a privilege to withhold the identities and background of informants who are promised confidentiality. Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957). However, the privilege must give way if the disclosure of an informant’s identity, or the contents of his communication is relevant and helpful to the defense of an accused, or is essential to a fair determination of a case. In deciding a motion to reveal an informant’s identity, the court must “balance the public interest in protecting the flow of information against the individual’s right to prepare his defense.” Roviaro, 353 U.S. at 60-61, 77 S.Ct. at 627-28. Within the Second Circuit, a defendant is generally able to establish a right to disclosure “where the informant is a key witness or participant in the crime charged, someone whose testimony would be significant in determining guilt or innocence.” United States v. Saa, 859 F.2d 1067, 1073-75 (2d Cir.1988), cert. denied, 489 U.S. 1089, 109 S.Ct. 1555, 103 L.Ed.2d 858 (1989). Nonetheless, even when the defendant can make such a showing, courts in this Circuit have held that the defendant is not entitled to pretrial identification of an informant where (1) the Government planned to have the informant testify at trial, thereby requiring the government to turn over Jencks material, and (2) defendant did not show a particularized need for pretrial disclosure. United States v. Hana, No. 94 CR. 116, 1994 WL 323642, at *4 (S.D.N.Y. July 5, 1994); United States v. Gonzalez, No. 93 CR. 960, 1994 WL 689065, at *3 (S.D.N.Y. Dec. 8, 1994). Lastly, a defendant may not be entitled to disclosure even though he had shown that the informant was a participant in and a witness to the crime charged. Unit ed States v. Jimenez, 789 F.2d 167 (2d Cir.1986). In this case, the government has already identified three confidential informants, two of whom are incarcerated in federal prisons. With regard to those informants, the court notes that the government has been able to reveal their identity because of unusual circumstances that reasonably insure their safety until the time of trial. The government avers that the remaining informants are not so situated, and that they remain subject to the risk of threat and injury. Government’s Response to Omnibus Motions (“Govt.’s Response”), Doc. 218, at 26. The court is unable to conclude after a careful review of each of the defendants’ arguments, that the disclosure of the remaining confidential informants’ identities is justified in this case. None of the defendants has identified a sufficiently particularized need that justifies access to the identity of the confidential informants prior to their testimony. Defendants’ motions for disclosure of the identity of confidential informants that the government intends to call as witnesses at trial are therefore denied. III. Disclosure of Exculpatory Evidence Defendants make a request to compel immediate disclosure of all exculpatory evidence and impeachment material. Disclosure of evidence tending to exonerate a defendant is, of course, mandated by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, it is well-settled in this circuit that Brady establishes no general right of pretrial discovery, nor does it give rise to any pretrial remedies. In short, Brady does not create a rule of discovery. See United States v. Marquez, No. 91 CR. 451, 1992 WL 88139 (S.D.N.Y.1992); 2 Charles A. Wright, Federal Practice and Procedure, § 254; United States v. Higgs, 713 F.2d 39, 42 (3d Cir.), cert. denied, 464 U.S. 1048, 104 S.Ct. 725, 79 L.Ed.2d 185 (1983) (“The requirements of Brady are not based on any general constitutional right to discovery in criminal eases, but rather on a defendant’s due process right to a fair trial.”). With regard to the timing of disclosure, the Second Circuit has held that “neither Brady nor any other case requires that disclosures under Brady must be made before trial.” United States ex rel. Cornelius Lucas v. Regan, 503 F.2d 1, 3, n. 1 (2d Cir.1974), cert. denied 420 U.S. 939, 95 S.Ct. 1149, 43 L.Ed.2d 415 (1975) (emphasis added to original); see also Higgs, 713 F.2d at 44 (“No denial of due process occurs if Brady material is disclosed to [defendants] in time for its effective use at trial.”). Furthermore, it has been determined that due process requires only that the defendant receive such information before it is too late for him to make beneficial use of it at trial; i.e., prior to cross examination. Regan, 503 F.2d at 3. Likewise, the disclosure of impeachment-type materials relating to the government’s witnesses is mandated by Giglia v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972), and is properly disclosed when the witness is called to testify at trial. United States v. Marquez, No. 91 CR. 451, 1992 WL 88139, at *8 (S.D.N.Y.1992). Specifically, this rule encompasses the information that defendants seek regarding any consideration that the government may offer to a witness in exchange for his testimony or any matter which would cause the witness to color his testimony in favor of the government. Id. The government indicates that it has provided and will continue to provide any exculpatory evidence as it becomes known, and that it will produce impeachment material at the time of trial. This anticipated schedule for production of discovery is appropriate. James v. Kelly, 648 F.Supp. 397, 403-04 (E.D.N.Y.1986); Feola, 651 F.Supp. at 1135. Accordingly, because the government is not required to do any more at this time, the court denies defendants’ requests for disclosure of exculpatory evidence and impeachment material. IF. Discovery of Identiñcation Evidence Defendants Miller and Lindsey seek disclosure of identification procedures used against them to determine whether those procedures are subject to suppression under Rule 12(b) of the Federal Rule of Criminal Procedure. The government notes that copies of photographic lineups, which primarily pertain to defendant Miller, are available for inspection by the defendants. The only other photographic lineups pertaining to the defendants in the instant case were those prepared by the Auburn and Utica Police Departments that included defendant Lindsey. Those lineups, according to the government, were used in an unrelated case. During oral argument, the government agreed to provide this evidence to defendant Lindsey. The government also delivered to defense counsel government investigative reports setting forth all identification procedures used in this case. The court agrees with the government that the additional information sought by the defendants is not necessary to challenge the propriety of the lineup photographs. Because the government states that the defendants have access to all relevant photographic lineups and reports, and that the government will provide defendants with whatever other evidence in its possession with regard to the photo arrays, defendants’ motions for additional identification evidence are denied without prejudice. Defendants may renew their motions if it appears that the government has not fully complied with its offer to disclose the material. V. Discovery of Co-conspirator Statements Several defendants assert that they are entitled to disclosure of the statements of their alleged co-conspirators pursuant to Rule 16(a)(1)(A) of the Federal Rules of Criminal Procedure. Rule 16 explicitly provides that statements “by the defendant” are discoverable. The general rule in this Circuit is that statements made by co-conspirators are not discoverable under Rule 16(a). United States v. Percevault, 490 F.2d 126, 130-81 (2d Cir.1974). Rule 16 permits discovery only of a defendant’s statements. However, this court previously held that on a broad reading of Rule 16, 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 as such those statements are discoverable. United States v. Konefal, 566 F.Supp. 698, 706-07 (N.D.N.Y.1983) (Munson, C.J.). This court acknowledged in Konefal however, that discovery of co-conspirator statements may be permitted on a Rule 16 motion only if the government does not intend to call the co-conspirators as witnesses at trial. If the government intends to call such co-conspirators as witnesses, the Jencks Act expressly makes statements of government witnesses, including co-conspirators, not discoverable until such time as the witness testifies. In the case at bar, defendants request statements of their alleged co-conspirators, all of whom apparently are named as defendants in the indictments. The government has said that they intend to call some of these defendants as witnesses. Thus, as the situation presently stands, to the extent that the government will not be calling certain defendants as witnesses at trial, strict adherence to Percevault with regard to those defendants is not required. Following the rule established by this court in Konefal, the court finds that fairness and the interests of justice require disclosure of statements of co-conspirators who are named as defendants and who will not be called as witnesses by the government. This approach adequately addresses the government’s concern for the safety of the co-defendants who will testify at trial. In reaching this conclusion, the court declines the invitation to follow its previous decision in United States v. Greater Syracuse Bd. of Realtors, 438 F.Supp. 376 (N.D.N.Y.1977). In Konefal, this court expressly declined to adhere to its prior decision in Greater Syracuse to the extent that decision is read as an absolute ban on pretrial disclosure of co-conspirator statements. Konefal, 566 F.Supp. at 706. In dicta, however, this court left open the possibility of following a course of non-disclosure if, in circumstances such as those presented in Greater Syracuse, there are numerous defendants and pretrial disclosure would unnecessarily reveal business secrets. Konefal, 566 F.Supp. at 706-07. Aside from the large number of defendants in the ease at bar, the court is not presented with circumstances in which there is a risk of harm to third parties from the disclosure of business secrets. Numerous courts have adopted the approach taken by this court in Konefal. See Konefal, 566 F.Supp. at 706, and cases cited therein; United States v. Jackson, 157 F.2d 1486 (4th Cir.), cert. denied, 474 U.S. 994, 106 S.Ct. 407, 88 L.Ed.2d 358 (1985) (“defendant entitled to disclosure of statements of eo-conspir-ators if the co-conspirator is not a prospective government witness and disclosure does not unnecessarily reveal sensitive information”); United States v. Davidson, No. 92-CR-35, 1992 WL 402959 *8, 1992 U.S.Dist. LEXIS 19434, at *29, and cases cited therein. The facts in the ease at bar do not justify departure from the rule employed by this court in Konefal requiring the disclosure of eo-eonspirator statements. The court therefore declines to apply an absolute ban on disclosure of eo-eonspirator statements. Defendants’ motions for discovery of co-conspirators’ statements are therefore granted, and the government must disclose to each defendant all the statements in its possession made during the course and in the furtherance of the conspiracy by those defendants the government does not intend to call as witnesses at trial. VI.Extra Peremptory Challenges Defendants next seek additional peremptory challenges and the opportunity to exercise such challenges separately. For felonies such as those with which defendants are charged, Rule 24(b) provides for 6 peremptory challenges for the government and 10 for the defendants jointly. Of course, the court has broad discretion to change this allotment and provide additional peremptory challenges. Likewise, the court may determine whether peremptory challenges should be exercised jointly or separately. United States v. Aloi, 511 F.2d 585, 598 (2d Cir.), cert. denied, 423 U.S. 1015, 96 S.Ct. 447, 46 L.Ed.2d 386 (1975). Moreover, the award of additional peremptory challenges may be conditioned on the defendants’ stipulation that the government also receive additional challenges. The court is inclined to increase the number of peremptory challenges for the defendants upon their stipulation that the government receive a proportional increase. Final decision on this issue is reserved, however, as well as the issue of whether the defendants should be allowed to exercise these challenges separately, until such time as the parties file their final pretrial submissions. At that time, defendants should notify the court whether they would prefer to exercise these challenges individually. VII. Early Disclosure of Jencks Act Material Defendants request an order directing the government to produce witness statements and reports in a timely fashion pursuant to the Jencks Act, 18 U.S.C. § 3500. However, the Jencks Act provides that no statements by a government witness shall be the subject of discovery or inspection until such witness has testified on direct examination in the trial. This court cannot order production of witness statements before they have testified. United States v. Percevault, 490 F.2d 126, 129 (2d Cir.1974). However, the government agrees to provide Jencks material to the defendants one week prior to the trial. Because the government has already agreed to provide the information sought by the defendants, their motions are denied. VIII. Production of Witness List Defendants request disclosure of a witness list in advance of trial. While the general discretion of district courts to compel the government to identify its witnesses is widely acknowledged, in this Circuit the government may be required to produce a witness list only if defendant makes a “particularized showing of need.” United States v. Bejasa, 904 F.2d 137, 139 (2d Cir.1990). As justification for production of a witness list, defendants merely cite the number of defendants, the length of the conspiracy, and the need to prepare an adequate defense as justifications for their requests. None of the defendants makes a particularized showing sufficient to require the production of a witness list prior to trial. Therefore, the defendants’ requests for production of a witness list in advance of trial are hereby denied. IX. Preservation of Government Agents’ Notes Defendants next request the court to direct the preservation of all notes of law enforcement officials relating to this case. Some of the defendants ask this court to “place the government on notice” to retain any existing rough notes. The government must permit a defendant to inspect and copy the substance of any oral statement that the government intends to offer in evidence at the trial made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be a government agent. Fed.R.Cr.Proc. 16(a)(1)(A). In order to fully comply with Rule 16, the government only needs to provide the defendant with the typewritten memoranda of interviews prepared from the agent’s handwritten notes. United States v. Konefal, 566 F.Supp. 698, 708 (N.D.N.Y.1983). There are, however, certain circumstances under which a defendant is entitled to receive copies of a government agent’s rough notes. The Jencks Act provides that a defendant in a federal criminal trial, after a government witness has testified on direct examination, is entitled to receive for purposes of cross-examination any written statement of the witness in the government’s possession, including handwritten notes, which relates to the subject matter as to which the witness testified. 18 U.S.C. § 3500(b); United States v. Koskerides, 877 F.2d 1129, 1133 (2d Cir.1989). Therefore, defendants are entitled to examine any notes by a government witness after that witness has testified at trial. The government cites the Koskerides decision for the proposition that “rough notes, even if retained, are not discoverable, even under the Jencks Act.” Govt.’s Response, Doc. 218, at 21. That is a misstatement of the holding in Koskerides. In that case, the defense was provided with typewritten mem-oranda of interviews prepared from handwritten notes. The handwritten notes were preserved by the agent and submitted to the district court for in camera inspection. The court compared the notes with the memoran-da of interview and denied disclosure of the notes, finding that everything in the notes was contained in the memoranda given to the defendant. The trial court also found that the notes did not pertain to anything discussed by the agent in his testimony on direct examination. Based on those circumstances, the Second Circuit held that the district court’s refusal to order disclosure of the handwritten notes did not violate the Jencks Act. Koskerides, 877 F.2d at 1133. The Court’s holding in Koskerides does not support the proposition advanced by the government in the ease at bar, that a government agent’s notes are not discoverable under the Jencks Act, even if retained. Lastly, the court notes that the Second Circuit has held that the Jencks Act imposes no duty on the part of government agents to retain rough notes when their contents are incorporated into official records, provided however that the notes had been destroyed in good faith. United States v. Anzalone 555 F.2d 317, 321 (2d Cir.1977); United States v. Sanchez, 635 F.2d 47, 66 n. 20 (2d Cir.1980). In the case at bar, the government is under an obligation to advise the appropriate law enforcement agents that any rough notes pertaining to the instant case must be retained for possible disclosure at trial pursuant to the government’s obligation under the Jencks Act. In summary, defendants’ motions are a reasonable request for the preservation of material potentially discoverable under the Jencks Act, and therefore their motions are granted. The government must advise the appropriate law enforcement agents to retain rough notes, consistent with the court’s discussion above. X. Severance Defendants move for severance from their codefendants pursuant to Rule 14 of the Federal Rules of Criminal Procedure. After a careful examination of the arguments advanced by each of the defendants, the court does not find any of them persuasive. Defendants were joined in the same indictment pursuant to Federal Rule of Criminal Procedure 8(b), which provides for joinder of multiple defendants when they have participated in the same act or transaction or in a series of related acts or transactions which are part of a common scheme or plan. Where the defendants’ activities are part of a series of acts or transactions which make up the underlying offenses, it is not necessary that each defendant be charged in each count, nor is the government required to prove that each defendant participated in every act or transaction in the series of events comprising the scheme. See United States v. Cardascia, 951 F.2d 474, 482 (2d Cir.1991). Courts in this Circuit have repeatedly stressed that defendants who are indicted together will normally be tried together, particularly when the charges against the defendants involve a common plan or scheme as they do in this case. See United States v. Matos-Peralta, 691 F.Supp. 780, 789 (S.D.N.Y.1988), aff'd sub nom. United States v. Benitez, 920 F.2d 1080 (2d Cir.1990), and cases cited therein. Thus, each defendant bears a heavy burden in moving for severance pursuant to Rule 14. Id. To meet that burden each movant must show that “he will be so severely prejudiced by a joint trial that he will in effect be denied a fair trial” if forced to be tried in the same proceeding as his eodefendants. United States v. Minicone, 960 F.2d 1099, 1110 (2d Cir.1992). The defendants fail to meet this substantial burden. Furthermore, it is established law that a separate trial is not required simply because one defendant’s role in a conspiracy is smaller or less central than that of other co-conspirators. United States v. Torres, 901 F.2d 205, 230 (2d Cir.1990). Different levels of culpability and proof are inevitable in multi-defendant trials. The mere circumstance that some evidence is admissible against one defendant but not others in a joint trial does not constitute prejudice warranting severance. United States v. Losada, 674 F.2d 167, 171 (2d Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2945, 73 L.Ed.2d 1341 (1982). In any event, where evidence is relevant to the guilt only of a single codefendant, a limiting instruction is sufficient. United States v. Alvarado, 882 F.2d 645, 655-56 (2d Cir.1989), cert. denied, 493 U.S. 1071, 110 S.Ct. 1114, 107 L.Ed.2d 1021 (1990). Because none of the defendants has shown any prejudice resulting from a joint trial, the interests of judicial economy outweigh the requests for severance. With respect to those defendants who seek severance from defendant Walker because he is without counsel, the court concludes that the recent assignment of counsel for Mr. Walker moots that argument. Therefore, defendants’ motions for severance are denied. XI. Discovery of Electronic Monitoring Evidence Defendants next bring motions for the disclosure of electronic monitoring evidence. The government avers that it employed two electronic intercepts on pagers and that it has taken steps to make available to each defendant the applications, orders and related papers for these intercepts. The court is satisfied that the government will provide the defendants with all relevant electronic monitoring evidence. Defendants’ motions to compel disclosure of electronic surveillance evidence are denied without prejudice, to allow any defendant to renew the motion if it appears that the government has not disclosed all of the relevant evidence. XII. Dismiss Indictment/Disclose Grand Jury Transcripts Turning to defendant Miller’s motion for dismissal of the indictment, in which defendants Cobb, Howard, and Belgrove join, it is a well-established rule that an indictment which is valid on its face cannot be challenged on the ground that it was based on inadequate or incomplete evidence. Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956). An indictment is sufficient when it contains the elements of an offense, notice to the defendant of the charges he must be prepared to meet, and information sufficient to protect the defendant from the risk of double jeopardy. United States v. Bailey, 444 U.S. 394, 414, 100 S.Ct. 624, 636, 62 L.Ed.2d 576 (1980). “An indictment need only track the language of the statute and, if necessary to apprise the defendant of the nature of the accusation against him, state time and place in approximate terms.” United States v. Covino, 837 F.2d 65, 69 (2d Cir.1988). Here, the defendants argue that the evidence was insufficient to warrant the indictment. Such an argument clearly is inadequate to justify dismissal of the indictment, and the motions to dismiss therefore are denied. As for the motions for disclosure of grand jury transcripts, in order to prevail on such a motion a defendant must demonstrate a “particularized need.” Dennis v. United States, 384 U.S. 855, 870, 86 S.Ct. 1840, 1849, 16 L.Ed.2d 973 (1966). Defendant Miller’s bald assertion that the transcripts will reveal the insufficiency of evidence to warrant the indictment is insufficient to meet this threshold. The motions for disclosure of grand jury transcripts therefore are denied. XIII. Admissibility of Co-conspirator Statements The court now turns to defendants’ motions requesting the court to order the government to prove in a pretrial hearing the existence of the conspiracy before it is permitted to introduce co-conspirator statements at trial. The defendants essentially seek a form of pretrial hearing that was approved by the Fifth Circuit in United States v. James, 590 F.2d 575, 581 (5th Cir.), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). The Second Circuit has outright rejected the use of pretrial proceedings to determine the existence of a conspiracy. Rather, courts in this circuit are instructed to admit co-conspirator statements subject to the government’s ability to “connect up” the statement with the conspiracy. At the close of the government’s case-in-chief, the court will determine whether the government has proven the existence of a conspiracy by a preponderance of the evidence. If the government has carried its burden, then any co-conspirators statements will remain in the record; if the government has not carried its burden, then the court will order that the remarks be stricken from the record. The Second Circuit adopted this framework in United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir.1969), cert. denied 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970). . Courts within this Circuit have consistently used Geaney to reject the pretrial hearing approach advocated by the defendants. In fact, the Southern District of New York rejected defendants’ proposed approach in unequivocal terms when it wrote that: “At this late date, a motion for a James hearing in this Circuit must be regarded as frivolous. Defendants who want James hearings should so conduct their business as to be tried in the Fifth or Eleventh Circuits.” United States v. Feola, 651 F.Supp. 1068, 1130 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 834, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989). Since the Second Circuit has unambiguously rejected the pretrial hearing requested by the defendants, their motions in this regard are denied. XIV. Discovery Under Rule 16 Defendants Lindsey, Chaney, Belgrove, Felton, and Watson seek an order requiring the government to give notice and access to evidence discoverable under Rule 16 of the Federal Rules of Criminal Procedure. Such an order is expressly authorized under Rule 12(d)(2). In this case, the government has assured the court that it has disclosed to all defendants the evidence that it intends to utilize in its case-in-chief and which is also discoverable under Rule 16, including statements by the defendants. The government also provides assurances that further materials will be provided if they become available. Based upon this assurance, defendants’ motions are denied without prejudice and with leave to renew if at the time of trial it appears that the government has not satisfied these obligations. As to the request by some of the defendants for a written summary of the testimony of expert witnesses the government intends to use, the government also has assured the court that it either already has, or intends to shortly disclose a written summary of their testimony and credentials to the defendants. If additional experts are used during the trial, the government agrees to provide this material to the defendants as soon as it is available. Thus, the court is satisfied that the government has complied with its obligations under Rule 16, and the defendants’ motions are denied. XV. Character Evidence Defendants also seek disclosure of any character evidence admissible under Federal Rule of Evidence 404(b) which the United States intends to use at trial. As specifically requested by each defendant, the government agrees to disclose the general nature of such evidence. The government has said that it intends to question the defendants with regard to evidence of other crimes, wrongs or acts as reflected on their New York State criminal history “rap sheets”, including the facts underlying those charges. The court has carefully reviewed the summary of the character evidence the government intends to introduce at trial, as outlined in its response papers, and is satisfied that the government has complied with its obligations under Rule 404(b). In addition, the government agrees to disclose newly discovered evidence as it becomes known and whether the United States intends to use the evidence at trial. Because the court is satisfied by the government’s assurance that it will fully comply with its obligations, defendants’ motions are denied. XVI. Criminal Records — Disclosure/Admissibility Defendants move for an order pursuant to Federal Rule of Evidence 609 for the disclosure, not later than 7 days before trial, of any bad acts or prior convictions that may be used against them during cross-examination should a defendant elect to take the stand. The defendants also request a hearing to determine the admissibility of such evidence. In response, the government has agreed to provide any defendant, upon request, a copy of their criminal history, if one exists. Because the government agrees to supply this information, defendants’ motions are denied without prejudice, subject to renewal if the government does not come forward with the agreed upon productions at least 7 days before trial. The court next addresses defendants’ request for an admissibility hearing. In making a determination of admissibility under Rule 609, the central factor for the court to consider is whether the crime, by its nature, is probative of defendant’s lack of veracity. Feola, 651 F.Supp. at 1127. In order to make such a determination, the court must be informed of defendant’s testimony with a degree of precision that cannot be obtained absent defendant’s actual testimony. See Luce v. United States, 469 U.S. 38, 41, 105 S.Ct. 460, 463, 83 L.Ed.2d 443 (1984). “Without adequate notification of what defendant’s testimony will reveal, the trial judge cannot compare the relevance of the prior conviction to credibility with the importance to [defendant’s] defense of having him testify free from the prejudice which might be created by reference to it.” Feola, 651 F.Supp. at 1127. Furthermore, the Supreme Court noted in Luce that requiring a defendant to make a pretrial proffer of testimony is no substitute for actual testimony. Luce, 469 U.S. at 41 n. 5, 105 S.Ct. at 463 n 5. Thus, in order to perform the necessary balancing the court should defer the determination of this issue until trial, when the record will be sufficiently developed and it becomes apparent whether defendants actually intend to testify on their own behalf. Because the factors to be weighed in determining the admissibility of prior bad acts are best evaluated at trial, defendants’ motions for a pretrial admissibility hearing pursuant to Federal Rule of Evidence 403 are denied without prejudice. Defendants are free to renew this motion at the close of the government’s ease-in-ehief. XVII.Suppression of Physical Evidence and Statements A. Defendant Belgrove Defendant Belgrove moves for suppression of drug evidence seized by state police from his ear during a traffic stop in January 1995. Def. Belgrove’s Notice of Motion, Doc. 194, at 5-6. New York State Troopers stopped Belgrove for speeding, and asked to search his ear after smelling a strong odor of alcohol coming from the vehicle. The officers found 12 ounces of cocaine base. Belgrove was arrested and charged with criminal possession of a controlled substance, a violation of the New York Penal Law. Belgrove pursued suppression of the evidence. Def. Belgrove’s Notice of Motion, Doe. 194, at 5-6; Govt.’s Response, Doc. 218, at 36-38. After the government consented during oral argument to hold a hearing, the court granted defendant Belgrove’s motion in a decision from the bench. After the suppression hearing was held on March 27, 1996, the court reserved decision and will issue a Memorandum-Decision and Order in the near future. B. Defendant Watson. Defendant Watson moves for the suppression of evidence seized pursuant to three search warrants that were issued on consecutive days in February 1995. Def. Watson’s Notice of Motion, Doc. 200, at 26-28; Def. Watson’s Mem. of Law, Doc. 201, at 1-17. The first search warrant at issue was for the person of Prentis Lindsey, a defendant in the instant case, and was issued by an Auburn City Court Judge on February 23, 1995 based on an application by Officer Thomas Murphy. Exh. 3, attached to Govt.’s Response, Doc. 218, and at 39-42; Def. Walker’s Notice of Motion, Doc. 200, at 26-28. Officer Murphy averred in the warrant application that defendant Lindsey, a suspect in a shooting, was reported to be in Auburn, New York. Officer Murphy also included a substantial amount of information about Lindsey provided by Leon Whitehurst, an informant. Specifically, the informant claimed that he knew Lindsey and recently loaned an automobile to him. The vehicle was parked in the rear driveway of 3 Perrine Street, Auburn, New York. Furthermore, the informant said that he recently spoke with defendant Lindsey in the area of Perrine Street. The informant placed a phone call to an apartment at 3 Perrine Street and “confirmed that Prentis Lindsey was present” at that address. Id. An Auburn City Police Officer also placed a call to a telephone pager number registered under Lindsey’s name. Officer Murphy averred in the warrant application that “a black male called the number back which was placed in the pager from a phone listed to [an individual residing at] 3 Perrine Street Apt 1 [sic]” Id. Armed with a warrant to search the premises of apartment number one at 3 Perrine Street for the person of defendant Lindsey, Exh. 3, attached to Govt.’s Response, Doc. 218, Auburn police officers set up a surveillance of the residence during the late evening on February 23, 1995. During that surveillance and immediately prior to the search, Auburn Police Sergeant David J. Delfavero observed from an adjacent parking lot a black male leaning inside the driver’s side door of a vehicle parked behind the apartment building. Sgt. Delfavero’s Affid., attached to Exh. 5, Govt.’s Response, Doc. 218. After several minutes, the man closed the car door and entered the back door of apartment number one. No one else was seen entering or leaving the apartment. A short time thereafter, a team of police officers, including Sgt. Delfavero, entered that apartment. Id. Defendant Watson, who identified himself as “Archie Hooks”, was the only person present. Sgt. Delfavero identified him as the individual he saw looking inside the vehicle shortly before the search. The vehicle, it was subsequently learned, was owned by defendant Whitehurst. Id. During the execution of the warrant, Officer Murphy was assigned to cover the parking area located at the rear of apartment building in order to secure the rear entrance to the apartment. Officer Murphy’s Affid., attached to Exh. 5, Govt.’s Response, Doe. 218. Just prior to the execution of the search warrant, Sgt. Delfavero told Officer Murphy that a black male had exited the car located in the rear parking area and entered apartment number one. After the search warrant was executed, Officer Murphy learned that defendant Watson was the only person found inside the apartment. Officer Murphy then walked over to the vehicle and looked inside to see if defendant Lindsey was in the vehicle, “to be sure the wanted suspect had not remained in the vehicle in hiding.” Id. He observed “in plain view a clear plastic bag, half out and half under the drivers seat which contained a white chunkey material which appeared to be crack cocaine, [sic]” Id. A second warrant was obtained during the early morning hours on February 24,1995, to search the apartment and the vehicle for drug-related contraband. The search warrant application was accompanied by affidavits from Officer Murphy and Sgt. Delfavero, which contained their observations made during the execution of the first search warrant. Exh. 5, attached to Govt.’s Response, Doc. 218. Upon execution of the second warrant, additional contraband was found at the residence and in the passenger compartment of the vehicle. One day later, a third warrant was obtained after an informant told law enforcement agents that the trunk of the vehicle contained drugs. Search Warrant Application, Exh. 4, attached to Govt.’s Response, Doc. 218. Attached to the warrant application were the affidavits submitted by Officer Murphy in support of the first and second warrants, and an affidavit from Auburn Police Officer Douglas Parker. Exh. 4, attached to Govt.’s Response, Doc. 218. Officer Parker averred that he received a tip from a police officer who was present during the arrest of defendant Lindsey the night before in Syracuse, New York. That officer learned from a confidential informant who had assisted the police in locating Lindsey that the trunk of the vehicle contained about “$40,000 worth of dope.” Id. A search of the trunk yielded additional cocaine. Def. Walker’s Notice of Motion, Doc. 200, at 26-28; Govt.’s Response, Doc. 218, at 39-42. Defendant Watson contends that any evidence seized as a result of the execution of the first warrant must be suppressed because any contraband found at the apartment was the result of an illegal search. First, defendant Watson objects that police officer’s failed to verify the telephone number dialed by defendant Whitehurst or that he actually spoke to defendant Lindsey at the Perrine Street apartment. He also objects that the informant was not reliable. Def. Watson’s Mem. of Law, Doc. 218, at 4. Therefore, the warrant lacked sufficient indicia to support a finding of probable cause. Def. Watson’s Notice of Motion, Doe. 200, at 26-28. The search of the automobile was unconstitutional, according to defendant Watson, because the warrant application was based on observations made by an officer while he was unlawfully in the “rear driveway” of the residence. Defendant asserts that the driveway is afforded Fourth Amendment protection because it falls within the curtilage of the apartment. Def. Watson’s Mem. of Law, Doc. 201, at 12-13. The observations made by the officers of evidence contained in the vehicle and the apartment exceeded the scope of the search warrant, which only authorized a search of the apartment for the person of defendant Lindsey. The plain view exception to a warrantless search does not apply, defendant further argues, because the officers did not have a lawful right to be in the driveway once the search of the apartment should have ended. Lastly, with regard to the warrant to search the automobile’s trunk, defendant Watson argues that there was no probable cause to issue the warrant because the application contained the same unreliable information used to obtain the first two warrants, and also was based on evidence illegally seized during the execution of the first two warrants. Id. at 15. The government does not consent to a suppression hearing and contends that the search warrants were validly obtained and executed. The government avers that the information used to obtain each of the warrants was sufficient to establish probable cause. The law enforcement officials who obtained the warrants should not be penalized, the government argues, for erring on the side of caution by obtaining a search warrant for each step of their search of the residence and automobile. Govt.’s Response, Doc. 218, at 39-42. Before discussing the merits of the instant motion to suppress, the court must address several preliminary matters. First, the court draws the parties’ attention an apparent confusion regarding the sequence in which the search warrants were issued. The government at times refers to exhibits four and five attached to its response papers as copies of the warrants issued on February 24 and 25 respectively. Govt.’s Response, Doc. 218, at 40-41. However, a careful examination of those exhibits appears to show that exhibit 5 is a copy of the warrant issued on February 24, 1995 authorizing a search of the apartment and the automobile. Exhibit 4 appears to be a copy of the warrant issued on February 25, 1995 authorizing a search of the automobile only. Defendant Watson makes the same error in his discussion of the warrants. See Def. Watson’s Notice of Motion, Doc. 200, at 27 (“The third search warrant authorized law enforcement officials to search 3 Perrine Street and the 1984 Buick.”); Def. Watson’s Mem. of Law, Doc. 201, at 13. The instant decision is based on the court’s assumption that exhibit 5 is the warrant issued February 24, 1995 to search the apartment and automobile, and that exhibit 4 is the warrant issued on February 25, 1995 to again search the vehicle. Furthermore, the court notes that the government attached to its response unexecuted copies of the three search warrants at issue in the instant motion. The government stated during oral argument and in its response that copies of the executed search warrants, as well as the accompanying affidavits and returns will be provided to defendants in the near future. Govt.’s Response, Doc. 218, at 40 n. 1. Defendant Watson also argues that state law, not federal, should govern the court’s determination whether the search of defendant Watson’s residence was unconstitutional. Def. Watson’s Mem. of Law, Doc. 201, at 7-8. In particular, defendant argues that state law should govern because there was no involvement of federal officers in obtaining or executing the warrants. Id. at 8-9. It is a well-established rule in this Circuit that federal rather than state law determines the admissibility of evidence in federal criminal proceedings. United States v. Pforzheimer, 826 F.2d 200, 204 (2d Cir.1987); see also United States v. Eyerman, 660 F.Supp. 775, 779 (S.D.N.Y.1987). In Pforzheimer, the Second Circuit expressly held that federal rather than state law determines the admissibility of evidence obtained in a search conducted by state officials as part of a state investigation, even though the search was arguably improper under the state constitution. Pforzheimer, 826 F.2d at 204. The Second Circuit reaffirmed the rule that federal search and seizure law governs a federal prosecution, even in the face of more expansive state protections. United States v. Scopo, 19 F.3d 777, 785 (2d Cir.1994). Because defendant’s arguments have been squarely rejected by the Second Circuit, the court will apply federal law to determine whether the searches at issue violated defendant’s constitutional rights. The burden of proof in a motion to suppress physical evidence is on the defendant who seeks the suppression. United States v. Levasseur, 618 F.Supp. 1390, 1392 (E.D.N.Y.1985) (citing United States v. Feldman, 606 F.2d 673 (6th Cir.1979), cert. denied, 445 U.S. 961, 100 S.Ct. 1648, 64 L.Ed.2d 236 (1980)). Thus, as a starting point, the court presumes that the affidavit supporting the search warrant is valid. Franks v. Delaware, 438 U.S. 154, 155-56, 171-72, 98 S.Ct. 2674, 2676, 2684, 57 L.Ed.2d 667 (1978). The burden of proof shifts, however, once the defendant establishes some basis for the motion. The standard of proof on the party who carries the burden is a preponderance of evidence. Levasseur, 618 F.Supp. at 1392 (citing United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). The court lastly notes that an evidentiary hearing is not required if the defendant’s moving papers do not state sufficient facts which, if proven, would have necessitated suppression of the evidence. United States v. Culotta, 413 F.2d 1343, 1345 (2d Cir.1969), cert. denied, 396 U.S. 1019, 90 S.Ct. 586, 24 L.Ed.2d 510 (1970); United States v. Purin, 486 F.2d 1363, 1367 (2d Cir.1973) (“no facts in the record before us or urged on appeal which would justify an evidentiary hearing”) (citing Purin, 486 F.2d at 1365). See also 3 Charles A. Wright, Federal Practice and Procedure, § 675, at 781-82 (“Factual allegations that are general and conclusory or based upon suspicion and conjecture will not suffice.”), and cases cited therein. Defendant Watson’s objections to the search of the apartment and automobile are, in essence, challenges to the probable cause supporting the warrants and to the proper scope of searches. First, defendant challenges certain statements made in each of the applications for the three search warrants at issue, and claims that the issuance of the warrants lacked probable cause. Defendant also objects that the execution of the warrants exceeded their scope. With the above principles in mind, the court turns to a discussion of these challenges. 1. Probable Came to Issue Search Warrants The Fourth Amendment to the United States Constitution provides in relevant part: “[N]o warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const., Amendment IV. With regard to whether the search warrants in the instant case were supported by probable cause, “the duty of a court reviewing the validity of a search warrant is simply to ensure that the magistrate had a substantial basis for conclud[ing] that probable cause existed.” United States v. Rosa, 11 F.3d 315, 326 (2d Cir.1993) (citing Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-39, 76 L.Ed.2d 527 (1983)). Furthermore, a “search warrant issued by a neutral and detached magistrate is entitled to substantial deference, and doubts should be resolved in favor of upholding the warrant.” Rosa, 11 F.3d at 326 (internal quotation marks omitted) (quoting United States v. Travisano, 724 F.2d 341, 345 (2d Cir.1983)). In evaluating whether an affidavit was sufficiently reliable to support a determination of probable cause, a “totality of the circumstances” approach is taken. Gates, 462 U.S. at 234, 103 S.Ct. at 2330. Under this approach, “a balanced assessment of the relative weights of all the various indicia of reliability” including the affiant’s veracity and the basis of his knowledge as set forth in the warrant application must be considered. Id. The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Id. at 238, 103 S.Ct. at 2332. A probable cause determination is a “practical, non-technical” endeavor, in which the court questions whether “there [is] a fair probability that the premises will yield the objects specified in the search warrant.” Travisano, 724 F.2d at 346. In arguing that there was insufficient evidence to support a finding of probable cause for the issuance of all three search warrants, defendant Watson argues that the police officers failed to verify whether the telephone call placed by the informant, defendant Whi-tehurst, was actually to the apartment located at 3 Perrine Street, or that he actually spoke to defendant Lindsey. In addition, defendant Watson alleges that the informant’s statements were inherently untrustworthy in that they were provided to police officers at a time when the informant was under arrest for possession of narcotics. Defendant Watson alleges that the informant cooperated in “an obvious attempt to help his dire situation.” Def. Watson’s Mem. of Law, Doc. 201, at 15. With regard to defendant Watson’s contention that the officers allegedly failed to verify the phone number called by the informant, the court observes that the affidavit does not describe the circumstances under which the phone call was placed. The affidavit only states that “[o]n February 23, 1995, Leon Whitehurst placed a phone call to 3 Perrine Street Apt 1, 252-5321 at 10:00 p.m. and confirmed that Prentis Lindsey was present at 3 Perrine Street Apt 1 [sic]” Affid. attached to Exh. 3, Govt.’s Response, Doc. 218. In addition, the affidavit does not state that the informant, who provides virtually all of the information used in the affidavit, had recently been charged by the Auburn Police Department with possession of narcotics. Viewed as a whole, however, the affidavit was sufficiently reliable to support a determination of probable cause. In addition to the information regarding the telephone call placed by the informant, the affidavit contains several observations by the affiant sufficient to support probable cause. First, Officer Murphy averred that members of the Auburn Police Department were advised on February 22, 1995 that Lindsey “was in Auburn, New York.” Officer Murphy’s Feb. 28, 1995 Affid., attached to Govt's Response, Doc. 218. He also averred that an officer placed a call to defendant Lindsey’s pager and that there was a reply to the call that originated from the Perrine Street apartment. In addition, the affidavit contains the informant’s statements that he saw Lindsey near the apartment, that the informant loaned his car to Lindsey, and that the car was parked in the driveway of the apartment at 3 Perrine Street. Under the totality of the circumstances test set forth in Gates, which requires the magistrate to make a “common sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability th