United States District Court, Southern District of New York
May 4, 1990
UNITED STATES OF AMERICA
MIGUEL MUNOZ, A/K/A "BEEPER", RODOLFO RODRIGUEZ, ENRIQUE HOUELLEMONT, A/K/A "EREPPA", DANIEL BRETTON, A/K/A "RAOUL", CRISTO REY RAMIREZ-PENA, A/K/A "BACALAO", VICTOR ALBERTO GIL, A/K/A "VITICO", NELSON OMAR TABAR-LARO, HECTOR GARCIA, A/K/A "JABAO", PEDRO PIZZARRO, A/K/A "BOLIN", AND MARILYN MONTALVO, A/K/A "RAMONA MUNOZ", DEFENDANTS.
The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
OPINION & ORDER
These are motions by defendants requesting a bill of
particulars and the following discovery materials: statements of
co-defendants and co-conspirators, Brady material, a witness
list, and evidence of prior similar acts. Memoranda have been
filed by defendants Miguel Munoz, Enrique Houellemont, and Nelson
Omar Tabar-Laro. In addition, defendants Daniel Bretton, Hector
Garcia and Victor Alberto Gil have adopted the motions and briefs
of their co-defendants on these discovery matters.
On February 22, 1990, the defendants who join in these motions
[hereinafter "defendants"] were charged, along with four other
co-defendants, with one count of conspiring to distribute and
possess with intent to distribute in excess of five kilograms of
mixtures and substances containing cocaine, and two counts of
conspiring to transmit in interstate commerce demands for ransom
for the release of a kidnapped person.
The government has made available to each defendant all written
and oral statements made after arrest by that particular
defendant, prior criminal records of that particular defendant,
and all tangible objects, documents and reports of the particular
defendant — including tape recordings of telephone conversations,
transcripts and translations thereof, photospreads, items seized
pursuant to a search warrant, and evidence seized from the
victim. The government has handed these materials over without
restrictions on showing them to co-defendants.
1. Bill of Particulars
Federal Rule of Criminal Procedure 7(f) grants a court
discretion to direct the prosecutor to file a bill of particulars
to protect defendant's rights to prepare and present an adequate
defense and to be free from double jeopardy. The superseding
filed on February 22, 1990, apprises the defendants of the
specific facts upon which the charges are based with adequate
precision. The government sets forth the predicate overt acts and
time frames in a manner sufficient to prepare an adequate defense
and to prevent any threat of double jeopardy. United States v.
Salazar, 485 F.2d 1272, 1278 (2d Cir. 1973), cert. denied,
415 U.S. 985, 94 S.Ct. 1579, 39 L.Ed.2d 882 (1974). Moreover, the
supplementation of the indictment with the other pretrial
discovery materials enumerated above further assures that
defendants' Rule 7(f) interests are protected without the
necessity of a bill of particulars.
2. Statements of Co-conspirators and Co-defendants
The statements made by co-conspirators are not discoverable
under Federal Rule of Criminal Procedure 16(a). In re United
States, 834 F.2d 283, 286-87 (2d Cir. 1987); United States v.
Percevault, 490 F.2d 126, 130-31 (2d Cir. 1974). Defendants
argue, however, that they are entitled to review any
co-conspirators' statements to prevent a violation of Bruton v.
United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476
The holding of Bruton is that:
a defendant is deprived of his rights under the
Confrontation Clause when his nontestifying
codefendant's confession naming him as a participant
in the crime is introduced at their joint trial.
Richardson v. Marsh, 481 U.S. 200
, 107 S.Ct. 1702, 1704, 95
L.Ed.2d 176 (1987). Bruton and its progeny, however, do not
mandate pretrial disclosure of statements to the defense.
If a prosecutor suspects that co-conspirators' statements
present a potential Bruton problem, then it is within the
prosecutor's discretion to withhold the statements from the
defense and present the statements to the court for evaluation.
Fed. Rule Crim.Proc. 14; United States v. Glover, 506 F.2d 291
(2d Cir. 1974). In Richardson v. Marsh, the Supreme Court
recently examined the methods by which Bruton violations can be
detected. Justice Scalia, writing for the majority, concluded
that directing the prosecution to share a co-conspirator's
statements with the defense during the pretrial stage would be
"time consuming," "far from foolproof," and of "doubtful"
feasibility. 107 S.Ct. at 1708 (citing Fed.Rule Crim.Proc. 14).
The prosecution has assured the Court that at this time there
are no foreseeable Bruton problems. Furthermore, defense
counsel has stated in open court that they are exchanging any
statements by co-defendants after arrest. Accordingly, there is
no necessity for the Court to take any action whatsoever at this
stage to protect defendants' rights under Bruton.
3. Brady Material
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963), requires that the prosecution disclose evidence favorable
to defendant in a timely manner to assure a fair trial. Although
there is no absolute right under Brady to pretrial discovery,
Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 845, 51
L.Ed.2d 30 (1977), the prosecution cannot postpone disclosure of
Brady material until it is "too late for effective
presentation." United States v. Gleason, 265 F. Supp. 880, 885
(S.D.N.Y. 1967). The government has consented to time its Brady
disclosures in a non-prejudicial manner. It is premature at this
time to direct discovery pursuant to Brady. United States ex
rel. 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).
4. Witness List
Defendants seek a list of witnesses whom the government intends
to call in its case-in-chief. The applicable standard is "whether
`a specific showing of need for disclosure by the defendant'
outweighs `a specific showing of need for concealment by the
government.'" United States v. Turkish, 458 F. Supp. 874, 881
(S.D.N.Y. 1978) (quoting United States v. Cannone,
528 F.2d 296, 302 (2d Cir. 1975)). The defense's need for a list is
mitigated because the names of the victim and agents have been
provided to defendants in complaints
and discovery materials. Since the nature of the crime is violent
and the risk of witness intimidation in a narcotics and
kidnapping case is high, the government's interest is weighty and
the list need not be provided.
5. Federal Rule of Evidence 404(b) Material
The government agrees that Rule 404(b) requires the disclosure
of any prior similar acts before offering them at trial. The
government asserts that it does not intend to offer any similar
act evidence which has not yet been disclosed and that if it
determines that it will offer any currently undisclosed similar
act evidence it will make disclosure in a timely, non-prejudicial
manner. Since the proper time for presenting Rule 404(b) evidence
will most likely be after the defense's case, United States v.
Colon, 880 F.2d 650 (2d Cir. 1989), at this time it would be
premature to order any further disclosure of evidence of prior
similar acts. If the government intends to offer such evidence in
its case-in-chief, it is directed to give the Court and defense
counsel adequate notice.
Defendants' motions for a bill of particulars and discovery are
IT IS SO ORDERED.
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