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UNITED STATES v. VINIERIS

June 27, 1984

UNITED STATES OF AMERICA, against GERASIMOS VINIERIS, a/k/a "MIKE VINIERIS" a/k/a "CAPTAIN MIKE", Defendant.


The opinion of the court was delivered by: DUFFY

MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, D.J.:

 Defendant Gerasimos Vinieris has brought this omnibus motion seeking several forms of relief. For the reasons that follow, defendant's motion is granted in part and denied in part.

 The twenty-four count indictment charges Vinieris with perjury before a grand jury investigating the $11 million theft at the Sentry Armored Courier Corporation ("Sentry") in the Bronx, New York (Counts One to Twenty-One), obstruction of justice (Count Twenty-two), and transportation in interstate commerce of over $5,000 stolen from Sentry (Counts Twenty-three and Twenty-four).

 On July 6, 1983, the defendant was subpoenaed before the grand jury, but refused to testify on Fifth Amendment grounds. On July 13, 1983, Judge Abraham D. Sofaer entered an order pursuant to 18 U.S.C. ยง 6002, granting defendant use immunity before the grant jury. Count One is based on statements made by the defendant before the immunity order became effective. Counts Two through Twenty-one are all based on allegedly false declarations made by the defendant after the order became effective. Defendant moves for discovery, dismissal of the indictment, and suppression of various evidence. I will turn to each form of requested relief seriatum.

 1.Discovery

 Defendant has moved for an extensive array of discovery, using boiler-plate language not necessarily relevant to the instant indictment. The government apparently has provided some discovery items including grand jury transcripts of defendant's and his attorney's grand jury appearances. In response to defendant's request, the government contends that the motion should be denied in full because of defendant's counsel's failure to comply with "local Rule 3(e), and to confer in order to resolve any discovery issues by agreement without the intervention of the Court." Memorandum of Law at 4. Southern District Local Criminal Rule 3 provides that attorneys must attempt to resolve discovery disputes before seeking intervention of the court. Defense counsel appears to have made some effort at discovery dispute resolution, which is mentioned in his affidavit. Therefore, the government is directed to fully comply with its discovery disclosure duties under Fed. R. Crim. Proc. 16 by disclosing any statements of the defendant, his prior record, permitting inspection of any documents or tangible objects which "are material to the preparation of his defense or intended for use by the government as evidence achieved at the trial," and permitting inspection of reports of examinations and tests.

 2. Bill of Particulars

 Defendant has requested a bill of particulars with respect to the charges against him. Under the circumstances, it is apparent that the indictment and accompanying papers submitted on this motion sufficiently particularize the charges against Mr. Vinieris to permit him to develop a defense and to ascertain the charges against him. Accordingly, defendant's motion for a bill of particulars is denied.

 3. Production of Brady Material

 In addition to his requests for discovery and a bill of particulars, defendant also seeks the production of all Brady material in the government's possession. The government's obligation to search for Brady material and to turn it over at the appropriate time is the sole responsibility of the prosecutor. Whether the government fulfills this responsibility is a matter that I can determine only after trial. See United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976).

 4. Disclosure of Informant's Identify

 Under certain circumstances the identity of a government witness may be disclosed to the defense prior to trial. See Roviaro v. United States, 353 U.S. 53, 60-62, 1 L. Ed. 2d 639, 77 S. Ct. 623 (1957); United States v. Cannone, 528 F.2d 296, 300-01 (2d Cir. 1975). The determination of whether such disclosure should be made depends upon the careful "balancing of the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders the nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informers' testimony, and all other relevant factors." Roviaro, 353 U.S. at 62. Defendant, however, has made virtually no showing that disclosure is appropriate in this case. As was stated in Cannone, "the ...


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