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U.S. v. FACCIOLO

January 4, 1990

UNITED STATES OF AMERICA
v.
BRUNO FACCIOLO, LAWRENCE TAYLOR, AND RICHARD SKOWRONSKI, DEFENDANTS.



The opinion of the court was delivered by: Edelstein, District Judge:

MEMORANDUM & ORDER

Defendants Richard Skowronski and Lawrence Taylor move this Court (1) to suppress wiretap evidence, (2) for a bill of particulars (3) for additional discovery, (4) to facially challenge the indictment, (5) that venue is improper, and (6) for severance. Defendant's motions are denied in all respects.

I. Wiretap Evidence

Defendants argue that the wiretapped conversations obtained during the first period of interception should be suppressed since the Government seeks to use those conversations as evidence that the defendants committed a crime other than those specified in the first wiretap order. Further, defendants argue that since the Government has not sought authority to use these conversations in this trial pursuant to 18 U.S.C. § 2517(5), the wiretap authorization statute, it may not use them at all. Both of these arguments are without merit.

In this circuit, intercepted conversations relating to an offense not specifically designated in the wiretap order may still be introduced as evidence relating to that offense under 18 U.S.C. § 2517(5) when the judicial officer authorizes the continuation of interception after being "made aware of `material facts constituting or clearly relating to [the] other offenses' in the application for the continuance." United States v. Ardito, 782 F.2d 358, 362 (2d Cir. 1986) (quoting United States v. Masciarelli, 558 F.2d 1064, 1068 (2d Cir. 1977)).

In this situation, this standard was clearly met. The initial 30-day wiretap authorization in this case was made by Judge Weinstein in the Eastern District, on November 6, 1989. The initial affidavits submitted to Judge Weinstein indicated that "[t]he organization's activities also involve the commission of armed robberies and burglaries by the core members." The progress reports supplied to Judge Weinstein set forth the conversations relating to the instant infraction. The December 7, 1989 re-application added the instant offense, 18 U.S.C. § 1951, as an authorized offense. As a result, the judicial officer was "made aware of the `material facts constituting or clearly relating to'" the instant violation in the re-application.

Accordingly, defendants' motion to suppress these conversations is denied.

II. Bill of Particulars

Defendants move for an order that the Government produce a bill of particulars. The defendants have failed to establish that the Indictment did not "set forth the essential elements and facts needed to inform [him] of the charges." United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984). The important question is whether the information sought is necessary, not whether it is helpful. United States v. Guerrerio, 670 F. Supp. 1215, 1224 (S.D.N.Y. 1987); United States v. Payden, 613 F. Supp. 800, 816-18 (S.D.N.Y. 1985). The Government will not be compelled through a bill of particulars to disclose the manner in which it will prove the charges or preview its evidence or legal theory. United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990); United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). Thus, an application for a bill of particulars seeking in effect to obtain evidence must be rejected.

This Indictment adequately informs the defendants of the charges against them, and comports with the specificity requirements of Rule 7(c) of the Federal Rules of Criminal Procedure and applicable law.

Further, in this case, the Government has supplied defense counsel with a list of the intercepted telephone calls the Government is likely to introduce at trial. The Government has provided copies of the wiretap applications, tape cassettes of intercepted phone calls, and log sheets. This material is sufficient for the defendants to glean the essential elements needed to be informed of the charges against them.

III. Additional Discovery

The record indicates that the Government provided defense counsel with detailed discovery after the defendants' motions were filed. Defendants may expect that the Government will continue ...


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