The opinion of the court was delivered by: HAIGHT
MEMORANDUM OPINION AND ORDER
This opinion addresses certain discovery disputes between the Government and defendant Gilbert. Other issues raised by the pending motions wil be dealt with separately. No opinion as to them is presently intimated.
Gilbert has demanded a bill of particulars under Rule 7(f), F.R.Cr.P., and also demanded discovery under Rule 16(a). The Government has furnished, or agreed to furnish, much requested information. I deal only with the disputed items.
Gilbert asks for a list of the names and addresses of Government trial witnesses. The Government is not obligated, in response to a bill of particulars, to identify the witnesses whose testimony will establish the crimes charged in the indictment, United States v. Mannino, 480 F.Supp. 1182, 1184 (S.D.N.Y. 1979); United States v. Lebron, 222 F.2d 531, 535 (2d Cir. 1955); United States v. Louis Carreau, Inc., 42 F.R.D. 408, 411 (S.D.N.Y. 1967), although pre-trial identification of "similar act" witnesses is generally required. United States v. Baum, 482 F.2d 1325, 1333 (2d Cir. 1973). The Government need furnish the names and addresses of only the latter category of witnesses, if any, including in its response details of the similar act in question.
Gilbert also requests, in 50 numbered paragraphs, the minutiae of the Government's proof. His brief (p.A-26) says that the requested information "is not of an evidentiary nature," but that disclaimer is believed by the plain language of the requests. The Government's brief (p.9) acknowledges its obligations to furnish defendant with the time, place and dates of overt acts alleged in the conspiracy; and, by letter dated November 25, 1980, has furnished counsel for all defendants with that and additional information regarding the overt acts. Gilbert's remaining requests "probe too deeply into the government's theory and method of proof," Mannino, supra, at 1186, and no further disclosure need be made. United States v. Gottlieb, 493 F.2d 987, 994 (2d Cir. 1974), and cases there cited.
The Government demands reciprocal discovery from Gilbert, which Gilbert resists. Rule 16(b)(1)(A) provides:
"Documents and Tangible Objects. If the defendant requests disclosure under subdivision (a)(1)(C) or (D) of this rule, upon compliance with such request by the government, the defendant, on request of the government, shall permit the government to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions thereof, which are within the possession, custody, or control of the defendant and which the defendant intends to introduce as evidence in chief at the trial."
Rule 16(b)(1)(B) contains comparable provisions with respect to reports of physical or mental examinations and scientific tests or experiments.
Gilbert's counsel recites, in his written demand for discovery and bill of particulars, an intent to avoid making any demand which would trigger reciprocal discovery. If a contrary construction were placed upon them, the written demand sought to reserve the right to withdraw defendant's request. These disclaimers do not defeat reciprocal discovery in the circumstances of the case. Gilbert's demands clearly track the language of Rule 16(a)(1)(C). I accept in principle a defendant's right to cancel his discovery order before delivery is made, thereby relieving the Government of "compliance with such request," and defusing Rule 16(b). In the case at bar, however, the Government responded to Gilbert's informal request for discovery, made at the initial pre-trial conference, and delivered to counsel a significant amount of evidentiary material. Affidavit of AUSA Livingston, dated November 21, 1980, at PP3-6. That discovery, made before Gilbert sought to impose any conditions or reservations in his written demand, suffices to impose on Gilbert the obligation of reciprocal discovery under Rule 16. Should defendant fail to comply, the Court will enter appropriate preclusion orders at trial.
Counsel are to be guided by the terms of this opinion.
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