United States District Court, Southern District of New York
June 4, 1990
UNITED STATES OF AMERICA
SANTOS VALERIO, JESUS REYES, A/K/A "ANTONIO MANUEL LENDOF," JOSE ARIAS, A/K/A "MIGUEL FLORES," AND JUAN MARIA, A/K/A "JUAN GARCIA," DEFENDANTS
The opinion of the court was delivered by: Edelstein, District Judge:
MEMORANDUM & ORDER
This memorandum arises in response to pre-trial motions filed
by defendants Santos Valerio, Jose Arias a/k/a "Miguel Flores"
(hereinafter "Arias") and joined by Jesus Reyes a/k/a "Antonio
Manuel Lendof" (hereinafter "Reyes") to compel certain
discovery and suppress the introduction of a firearm
(collectively, the "defendants"). This memorandum supplements
oral rulings made at the conclusion of the argument held May
31, 1990. For the reasons to be discussed, defendants' motions
Count One of Indictment 90 Cr. 183 charges the defendants
with conspiring to distribute and possess with the intent to
distribute more than 500 grams of cocaine in violation of
21 U.S.C. § 846. Count Two charges the defendants with possession
with the intent to distribute more than five hundred grams of
cocaine in violation of 21 U.S.C. § 841(b)(1)(B). The
Indictment charges that the conspiracy began and ended on March
20, 1990, the date of the alleged drug transaction.
The defendants were arrested on March 20, 1990 by Drug
Enforcement Administration Agents, who also seized
approximately two kilograms of cocaine, and a .380 caliber
semi-automatic handgun from apartment 6-A at 106 W. 179th
Street, in the Bronx. The four overt acts alleged in the
conspiracy and the arrest all occurred in the Southern District
of New York.
The Government represents that it has already provided
extensive discovery to the defendants. The Government has
produced draft transcripts of all tapes which relate to the
charges in the Indictment, and provision was made for defense
counsel to listen to those tapes. In addition to the Indictment
and Complaint, the Government produced copies of the criminal
records of the defendants, and the DEA report of the drug
seizure. The Government further made all physical evidence
available for inspection by defendants.
II. The Motions
Defendants first move this Court to order the Government to
disclose particular facts about the confidential informant in
advance of trial. Specifically, the defendants ask that the
Government produce the confidential informant's name, date of
birth, social security number, criminal record, and identifying
The defendants have provided no controlling legal authority
in support of compelling the production of this information.
The cases cited by defendants are inapposite since in the
instant case, the confidential informant will testify at trial.
In connection with his testimony, the Government must at the
appropriate time provide material under 18 U.S.C. § 3500
("3500") to allow the confidential informant to be
cross-examined. The defendants have offered no basis for the
production now sought.
Defendants next seek to preclude the introduction of the
firearm seized in the apartment during their arrest pursuant to
Rule 403 of the Federal Rules of Evidence. Defendants argue
that the prejudice resulting from the introduction of the gun
will substantially outweigh its probative value.
Defendants essentially ask this Court to ignore a long line
of cases in this circuit and others which hold that the
probative value of introducing firearms as proof of narcotics
violations outweighs their prejudicial value. See, e.g. United
States v. Mourad 729 F.2d 195, 201 (2d Cir.), cert. denied
469 U.S. 855, 105 S.Ct. 180, 83 L.Ed.2d 144 (1984); United States
v. Weiner 534 F.2d 15, 18 (2d Cir.), cert. denied 429 U.S. 820,
97 S.Ct. 66, 50 L.Ed.2d 80 (1976); United States v. Matra,
841 F.2d 837, 842-43 (8th Cir. 1988). The facts of the instant case
present no reason to depart from established law. Accordingly,
defendants in limine motion to preclude introduction of the
seized firearm pursuant to Rule 403 is hereby denied.
Defendants next move this Court to compel the Government to
provide certain other discovery, including a bill of
particulars, lists of the Government's trial witnesses and
exhibits, and disclose all prior similar acts by defendants.
Defendants first discovery request is that this Court order
the Government to produce a detailed bill of particulars
pursuant to Rule 7(f) of the Federal Rules of Criminal
Procedure. In order to obtain a bill of particulars, the
defendants must establish that the Indictment did not "set
forth the essential elements and facts needed to inform [them]
of the charges." United States v. Panza, 750 F.2d 1141, 1148
(2d Cir. 1984).
The instant Indictment 90 Cr. 183 provides the defendants
with a complete list of co-conspirators, a specific beginning
and ending date for the conspiracy, the locations of four overt
acts and the specific co-conspirators present at each, the
location of the arrest, the location and amount of the seized
narcotics and the location of the firearm. This Indictment
comports with the specificity requirements of Rule 7(c) of the
Federal Rules of Criminal Procedure and applicable law, and
accordingly the defendants' request for a bill of particulars
Defendants further move this Court to order production of the
Government's lists of trial witnesses and exhibits pursuant to
Rule 16 of the Federal Rules of Criminal Procedure. Despite the
fact that this information would be made available to
defendants before trial when voir dire requests are to be filed
with the Court, a date now set at June 29, 1990, the defendants
have moved for immediate disclosure of this material. A
defendant is not normally entitled to such a list of Government
witnesses "absent `some particularized showing of need.'"
United States v. Wilson, 565 F. Supp. 1416, 1438 (S.D.N Y
1983), aff'd 750 F.2d 7 (2d Cir. 1984), cert. denied,
479 U.S. 839, 107 S.Ct. 143, 93 L.Ed.2d 85 (1986). The defendants have
failed to make any such particularized showing of need to
warrant production of a witness list, and therefore this motion
should be denied. The defendants' request for an exhibit list
should similarly be denied. The defendants are only entitled to
that discovery required by Rule 16(a)(1)(C) of the Federal
Rules of Criminal Procedure, and this request falls outside the
scope of that rule.
The defendants' final discovery motion is for production of
all evidence of prior similar acts in the Government's
possession. The Government represents that the only such
evidence in its possession is the defendants' prior rap sheets,
previously produced to defendants. Should the Government offer
any additional evidence of this sort, it must make that
evidence available to the defense and Court before being
offered at trial. This motion is resolved consistent with this
Accordingly, defendants' discovery motions are hereby denied.
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