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UNITED STATES v. DESANTIS

September 3, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL DESANTIS and FRANK LOMBARDO, Defendants.



The opinion of the court was delivered by: I. LEO GLASSER

MEMORANDUM AND ORDER

 GLASSER, United States District Judge:

 The defendant Desantis has moved this court for an order that would grant him the following relief: (1) that the government be directed to respond to his request for a Bill of Particulars; (2) that the government reveal to him similar act evidence it intends to offer at trial pursuant to Rule 404(b), Fed. R. Evid.; (3) that the government fully comply with Rule 16, Fed. R. Crim. P.; (4) that the court conduct a hearing to determine the audibility of intercepted and recorded conversations; (5) that the court direct to be stricken portions of the indictment he characterizes as surplusage; (6) that Count Eight be severed from the indictment; (7) that Counts Four and Five be severed from Counts Six and Seven; (8) that items seized during the execution of search warrants be suppressed; and (9) that the court conduct a pretrial hearing to determine the admissibility of co-conspirators' statements.

 The defendant Lombardo seeks the following relief in a motion he filed: (1) that he be tried separately from co-defendant Desantis or, in the alternative, that Counts One, Two and Five, in which he is named, be severed from Counts Three, Four, Six, Seven and Eight in which he is not named; (2) that multiplicitous counts in the indictment be consolidated; (3) that surplusage in the indictment be struck, and (4) that he receive "necessary discovery and particulars."

 The Superseding Indictment charges both defendants with conspiracy to make extortionate extensions of credit in violation of 18 U.S.C. § 892 (Count One); conspiracy to collect extensions of credit by extortionate means in violation of 18 U.S.C. § 894 (Count Two); charges Desantis only with financing extortionate extensions of credit in violation of 18 U.S.C. § 893 (Count Three) and with making extortionate extensions of credit in violation of 18 U.S.C. § 892 (Count Four); charges both defendants with collecting extensions of credit by extortionate means in violation of 18 U.S.C § 894 (Count Five); charges Desantis only with making extortionate extensions of credit in violation of 18 U.S.C. § 892 (Count Six) and with collecting extensions of credit by extortionate means in violation of 18 U.S.C. § 894 (Count Seven) and finally, charges Desantis only with possession of a firearm being a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1), 924(a)(2) (Count Eight).

 DISCUSSION

 A. Defendants' Motion for Bill of Particulars

 The defendants' requests for particulars are detailed in letters dated April 27th and June 29th, 1992 from Michael Washor, Esq., counsel to Desantis, to Assistant United States Attorney Pamela Davis. In his letter dated April 10, 1992, Mr. Washor requests information regarding a comprehensive list of items pursuant to Rule 16, Fed. R. Crim. P., and the Fifth and Sixth Amendments to the United States Constitution. See Exhibits A, B and D to the motion of defendant Desantis. The government's response in letters dated April 17th, May 1st and July 2nd, 1992, for the most part, reject the requests.

 At the outset, it is noted that in the Statement of Facts of the Government's Memorandum in Opposition to Defendants' Omnibus Motions, pages 5-7, the government elaborates upon the Indictment and, in essence, gives the defendants an overview of its case. At page 10 of that Memorandum, the government recites that it has already provided the defendants with copies of their statements, criminal records, reports of examinations and a set of all tape recorded conversations made during the investigation of this case. The government has also extended to them an invitation to examine all documents and other tangible evidence at a time that is convenient to them. The defendant Desantis requests that he be advised as to the amounts of money borrowed from him, where the transactions took place, the terms upon which loans were made, the names of unidentified co-conspirators, the names of witnesses or potential witnesses, etc. The defendant Lombardo requests that transcripts of the audio-cassettes be provided to him, a description of his alleged role in the conspiracy together with dates, times and places of his participation as an alleged co-conspirator, details of meetings between a named extortion victim and Lombardo and between law enforcement agents and Lombardo and notes taken during meetings between the government and cooperators.

 In United States v. Crozzoli, 698 F. Supp. 430, 435-36 (E.D.N.Y 1988) this court had occasion to repeat the oft-cited principle that:

 The indictment, together with the information provided to the defendants in other acceptable forms, satisfies such obligations as Rule 7(f) imposes upon the government. The charges pending against the defendants are defined with sufficient specificity to enable them to prepare for trial without being surprised and to plead the bar of double jeopardy at another time that become necessary. To direct the government to comply with the requests made by the defendants would be to direct the government to particularize all of its evidence and the theory of its case, which it is not required to do.

 If the government has not already done so, it is hereby directed to provide the defendants, at least twenty-one days prior to trial, with the general nature of other crimes, wrongs or acts it intends to offer in evidence in accordance with Rule 404(b), Fed. R. Evid. The refusal of the government to provide the defendants with transcripts of the tapes the government has already provided to them is difficult to understand. If those transcripts are as yet in draft form, the government is directed to provide them but only on condition that the defendants agree in writing that the draft transcripts are being provided for the sole purpose of assisting their pretrial preparation and that no attempt will be made to use or allow any other person to use the draft transcripts or make reference to them at trial or in any other proceeding. If the transcripts are finalized, the government is directed to provide them. It is hoped that should there be differences among the parties as to the accuracy of a government-proposed transcript, those differences can be resolved prior to trial toward the end that a stipulation as to accuracy can be arrived at.

 B. The Defendants' Rule 16 Requests

 The defendants' requests pursuant to Rule 16, Fed. R. Crim. P. and the Fifth and Sixth Amendments to the United States Constitution are listed in Exhibit D annexed to the Desantis notice of motion. It is a fairly typical boilerplate compilation of approximately forty-seven items filling seven typewritten pages. The government's response to the majority of those requests is contained in Exhibit E annexed to the Desantis motion. Comment has already been made as to the government's refusal to provide transcripts of recorded conversations and will not be repeated. The defendants have made many requests pursuant to Brady v. Maryland, 373 U.S. 83 (1963); United States v. Agurs, 427 U.S. 97 (1976); Giglio v. United States, 405 U.S. 150 (1972); and United States v. Bagley, 469 U.S. 1016 (1984). In response to those requests the government merely acknowledged its Brady and Giglio obligations. In this regard observations made by the Court in Pennsylvania v. Ritchie, 480 U.S. 39, 59, 60 (1987) may be useful.

 A defendant's right to discover exculpatory evidence does not include the unsupervised authority to search through the Commonwealth's files. . . . Although the eye of an advocate may be helpful to a defendant in ferreting out information, . . . this Court has never held -- even in the absence of a statute restricting disclosure -- that a defendant alone may make the determination as to the materiality of the information. Settled practice is to the contrary. In the typical case where a defendant makes only a general request for exculpatory material under Brady v. Maryland, 373 U.S. 83 (1963), it is the State which decides which information must be disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court's attention, the prosecutor's decision on disclosure is final. Defense counsel has no constitutional right to conduct his own search of the State's files to argue relevance. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977) ("There is no general constitutional right to discovery in a criminal case and Brady did not create one.")

 The defendant Desantis seeks disclosure of statements made by him to third parties which are subsequently set forth in reports prepared by a government agent. That request was considered in In re United States, 834 F.2d 283 (2d Cir. 1987) which decided that such statements were not discoverable.

 Except as indicated with respect to the transcripts of the recordings already furnished to the defendants, their motions for a bill of ...


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