prove; the particulars of Lonzo's participation in the conspiracy; the substance of any conversations involving the conspiracy; the identities of those persons to whom cocaine was distributed; and the quantity of the cocaine distributed. Additionally, as to the telephone counts (Counts V-IX), Lonzo requests the date and time of such calls and to whom such calls were made. The Government opposes these requests, except that they agree to provide the names of all unindicted co-conspirators to the extent known to the United States.
A bill of particulars should be granted where necessary (1) to inform the accused of the charges against him with sufficient precision to enable him to prepare his defense and avoid surprise, and (2) to enable him to plead his acquittal or conviction in bar of any further prosecution for the same offense. United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988); United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987).
Whether to grant a motion for a bill of particulars "'rests within the sound discretion of the district court.'" United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990), cert. denied sub nom., Cruz v. United States, U.S. , 111 S. Ct. 273, 112 L. Ed. 2d 229 (1990) (quoting United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984) (citation omitted)). "'A bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused.'" Id. (quoting United States v. Feola, 651 F. Supp. 1068, 1132 (S.D.N.Y. 1987), aff'd mem., 875 F.2d 857 (2d Cir. 1989), cert. denied, U.S. , 110 S. Ct. 110, 107 L. Ed. 2d 72 (1989)).
A bill of particulars is not an appropriate device for acquiring "evidentiary detail," id., nor to inquire into the government's legal theory. United States v. LaMorte, 744 F. Supp. 573, 577 (S.D.N.Y. 1990); United States v. Copen, 378 F. Supp. 99, 103 (S.D.N.Y. 1974); United States v. Dioguardi, 332 F. Supp. 7, 14 (S.D.N.Y. 1971) (citations omitted). Finally, where the information sought "is provided in the indictment or in some acceptable alternate form, no bill of particulars is required." United States v. Bortnovsky, 820 F.2d at 574.
Most of defendant's requests are for evidentiary detail, and/or are inappropriate for a Bill of Particulars. However, given the fact that the current practice of this Court has been to grant requests for the names of unindicted co-conspirators and for the specification of the quantity of drugs alleged in each count of a drug-conspiracy indictment -- and that such information would enable defendant to make an informed decision as to any possible plea -- this Court grants the request that the Government disclose the names of unindicted co-conspirators and the total quantity of drugs allegedly involved in each count. All other requests are hereby denied.
Lonzo makes the usual requests for Brady and Giglio materials, and requests early production of Jencks material (immediately, or at least ten days before trial). The Government makes their usual response that all Brady material has been provided, that they are aware of their continuing obligation under Brady, and that all Giglio and Jencks material will be provided after jury selection.
It appears that the Government has complied with Brady. Nevertheless, this Court will follow its past practice, based upon Giglio v. United States, 405 U.S. 150, 154, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972) and United States v. Bagley, 473 U.S. 667, 676, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985) ("This Court has rejected any . . . distinction between impeachment evidence and exculpatory evidence."), and require the Government to furnish the defendant with impeachment evidence, regarding witnesses to be called at trial, at the same time as other Brady exculpatory material -- i.e., as soon as it becomes known.
However, defendant is not entitled to production of Jencks material until after a witness has testified on direct examination pursuant to 18 U.S.C. § 3500. Therefore, that request is denied. See In re United States, 834 F.2d 283, 287 (2d Cir. 1987) ("as to . . . the production of statements of government witnesses, the Jencks Act controlled, and the district court had no inherent power to modify or amend the provisions of that Act.")
Lonzo also requests that a witness list, including the names of all confidential informants be provided (he claims that there is "no danger" to these individuals -- e.g., he hasn't harmed co-conspirator/informant Fred Baldwin). However, because the defendant presents no specific evidence of his need for such a list, he does not overcome the Second Circuit's requirement that a defendant make more than an "abstract, conclusory claim that such disclosure [is] necessary to its proper preparation for trial." United States v. Cannone, 528 F.2d 296, 301-02 (2d Cir. 1975). Therefore, defendant's request for a witness list is denied.
Finally, Lonzo requests copies of the written records of his statements with law enforcement officials, any contemporaneous notes made by such officials, an account of the circumstances surrounding such statements, and the identities of the officials to whom such statements were made. He also requests the results of laboratory tests performed on the alleged cocaine purchased by Fred Baldwin or seized from 68 Maple Street. The Government contends that the content of Lonzo's oral statements to law enforcement agents was provided on March 2, 1992, and the lab results were provided on May 7, 1992. If the substance of all of Lonzo's statements to law enforcement officials that are in the possession of the United States has been provided, and the lab reports have been provided to Lonzo, the Government need not provide any more pursuant to Fed.R.Crim.P. 16(a)(1)(A), and these requests are hereby denied.
Lonzo requests permission to make additional motions based upon any information provided as a result of the instant motions. Such permission -- limited to information forthcoming as a result of this Court's order -- is granted.
IT IS SO ORDERED.
CON. G. CHOLAKIS, JUDGE
UNITED STATES DISTRICT COURT
DATED: Albany, New York
June 10th, 1992