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U.S. v. MUNOZ

May 4, 1990

UNITED STATES OF AMERICA
v.
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 indictment, 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 (1968).

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 ...


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