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UNITED STATES v. MANNINO

November 21, 1979

UNITED STATES OF AMERICA, Plaintiff,
v.
PAUL MANNINO, MICHAEL ARDIZZONE, ROBERT FRANK ROMEO, and JOSEPH CORDANO, Defendants.



The opinion of the court was delivered by: SWEET

OPINION AND ORDER

The Government has charged defendants Paul Mannino, Michael Ardizzone, Robert Frank Romeo and Joseph Cordano with conspiracy to distribute controlled substances and distribution of controlled substances. In addition, the indictment charges defendants Mannino, Ardizzone and Cordano with certain firearms offenses. This is a decision and order on defendants' motions for a bill of particulars and for discovery, and on the Government's motions for a protective order deferring discovery and for a continuance of trial.

 Bill of Particulars

 Defendants Mannino, Ardizzone and Cordano have moved for a bill of particulars pursuant to Rule 7, Fed.R.Crim.P. A bill of particulars is designed first to assure that a defendant is sufficiently apprised of the charges against him to allow him to prepare a defense and, second, to enable the defendant to assert a defense of double jeopardy if subsequent charges are filed against him based on the same actions. Wong Tai v. United States, 273 U.S. 77, 47 S. Ct. 300, 71 L. Ed. 545 (1929); United States v. Lebron, 222 F.2d 531 (2d Cir.), Cert. denied, 350 U.S. 876, 76 S. Ct. 121, 100 L. Ed. 774 (1955); United States v. Mavrogiorgis, 49 F.R.D. 214 (S.D.N.Y.1969).

 A bill of particulars should not be used to conduct discovery of the Government's theory of a case, to force detailed disclosure of acts underlying a charge, or to restrict the Government's proof at trial. United States v. Salazar, 485 F.2d 1272, 1273 (2d Cir. 1973), Cert. denied, 415 U.S. 985, 94 S. Ct. 1579, 39 L. Ed. 2d 882 (1974); United States v. Leonelli, 428 F. Supp. 880 (S.D.N.Y.1977); United States v. McCarthy, 292 F. Supp. 937 (S.D.N.Y.1968). A decision to grant or deny a request for particulars rests in the sound discretion of the trial court. United States v. Tramunti, 513 F.2d 1087, 1113-14 (2d Cir.), cert. denied, 423 U.S. 832, 96 S. Ct. 54, 46 L. Ed. 2d 50 (1975).

 Based on these general principles, the following disposition is appropriate:

 Count I. Request (a), for the names of all co-conspirators, is granted to the extent these persons are known to the Government only. United States v. Chovanec, 467 F. Supp. 41, 46 (S.D.N.Y.1979); United States v. King, 49 F.R.D. 51, 53 (S.D.N.Y.1970). Request (b), calling for the name of the undercover agent named in Overt Act One, and Request (c), for the names of other persons present during Overt Act Four, are denied. These requests essentially call for the names of Government witnesses. United States v. Chovanec, supra at 46; United States v. Dioguardi, 332 F. Supp. 7, 19 (S.D.N.Y.1971). See also United States v. Roya, 574 F.2d 386, 392 (7th Cir. 1978).

 Counts II, III and IV. The request for the locations of the acts set forth in these counts is granted only to the extent that such acts were performed by principals. United States v. Honneus, 508 F.2d 566, 570 (1st Cir. 1974). The Government need not specify which defendants are charged as principals and which are charged as aiders and abettors, since this would reveal the Government's theory underlying those counts of the indictment. United States v. Leonelli, 428 F. Supp. 880, 882 (S.D.N.Y.1977). Similarly, the Government need not disclose all acts committed by claimed aiders and abettors, by analogy to the rule shielding the Government from disclosure of all overt acts involved in a conspiracy. United States v. Lam Lek Chong, 544 F.2d 58, 63 (2d Cir. 1976), Cert. denied, 429 U.S. 1101, 97 S. Ct. 1124, 51 L. Ed. 2d 550 (1977); United States v. Cohen, 518 F.2d 727 (2d Cir.), Cert. denied, 423 U.S. 926, 96 S. Ct. 270, 46 L. Ed. 2d 252 (1975). Moreover, the disclosure of the locations of actions taken by alleged aiders and abettors is not relevant to the venue of this action, since aiders and abettors can be tried in the district where the principal committed the crime. United States v. Chestnut, 399 F. Supp. 1292, 1297 (S.D.N.Y.1975), aff'd, 533 F.2d 40 (2d Cir.), Cert. denied, 429 U.S. 829, 97 S. Ct. 88, 50 L. Ed. 2d 93 (1976); United States v. Sweig, 316 F. Supp. 1148 (S.D.N.Y.1970).

 Count V. The request for the location of the act charged in Count Five is granted.

 Count VI. Request (a) is granted only to the extent it concerns the place where the principal offense charged occurred. Request (b), calling for the actions actually taken by the respective defendants, and request (c), calling for disclosure of the manner in which the offense was carried out, are denied. These requests probe too deeply into the Government's theory and method of proof. United States v. Gottlieb, 493 F.2d 987, 994 (2d Cir. 1974); United States v. Andrews, 381 F.2d 377 (2d Cir. 1967), Cert. denied, 390 U.S. 960, 88 S. Ct. 1058, 19 L. Ed. 2d 1156 (1968). Moreover, disclosure of these facts is not necessary to inform defendants Ardizzone and Mannino of the nature of the charges against them.

 Count VII. Request (a) is granted and request (b) is denied for the reasons set forth in discussing the requests concerning Count Six.

 Count VIII. The request for the location of actions taken by principals only, in carrying out the alleged offense, is granted.

 Discovery Motions and Motion for a Continuance

 Defendants Mannino, Ardizzone and Cordano have made extensive discovery requests, to which the Government has consented only in part. With one exception, the Government states that it is willing to supply all material required by Rule 16, Fed.R.Crim.P., 18 U.S.C. ยง 3500 and Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Counsel for the defendants concede that their requests go beyond the bounds of disclosure required by statute or by the Constitution. In the absence of a showing of specific need, defense counsel have not currently moved to compel disclosure of requested ...


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