to ascertain Love's whereabouts. Love successfully evaded capture until April 9, 1993. Finally, the delay in holding the trial following defendant's arrest is also attributable to defendant. Defendant repeatedly has requested and received extensions of time to file motion papers and for other reasons. See, infra, [slip op.] at 21-22. The second factor thus weighs against Love's motion.
The third factor, the defendant's assertion of his right to a speedy trial, also weighs against Love's motion. During the period that Love remained a fugitive, he took no action to assert his right to a speedy trial. Indeed, the converse appears to be true. In light of the fact that Love apparently was aware that he was wanted in connection with this Indictment, Love's failure to assert his right to a speedy trial weighs against his motion. As already discussed, defendant also has not requested a prompt disposition of this case; rather, defendant has prolonged these proceedings by requesting extensions of time to file motion papers.
Finally, the fourth factor, the extent of prejudice to the defendant, also does not support Love's motion. Love conclusorily alleges that he has been prejudiced by delay insofar as he has been incarcerated, his memory of relevant events may have faded, and witnesses may have died. (Love Reply Aff., at P 7). These conclusory allegations do not support a finding of prejudice to the defendant.
In sum, Love has failed to demonstrate that his Sixth Amendment right to a speedy trial has been violated. Accordingly, Love's speedy trial motion is denied.
Love next moves for a bill of particulars as well as extensive pretrial discovery. Love seeks virtually all of the evidence that the government might have in its possession, whether or not the government intends to introduce that evidence at trial. For the reasons discussed below, defendant's discovery requests are denied.
Love requests a bill of particulars detailing such information as when and where he carried the firearms referred to in Count Eighteen, and whether the conspiracy alleged in Count One is the same conspiracy referred to in Count Eighteen. It is well settled that the purpose of a bill of particulars is to provide facts supplemental to those contained in an indictment that are necessary to apprise a defendant of the charges against him with sufficient precision (1) to prepare a defense, (2) to avoid unfair surprise at trial, and (3) to preclude a second prosecution for the same offense. United States v. Torres, 901 F.2d 205, 234 (2d Cir.), cert. denied, 498 U.S. 906, 111 S. Ct. 273, 112 L. Ed. 2d 229 (1990); see United States v. Cephas, 937 F.2d 816, 823 (2d Cir. 1991). The crucial question is whether the information sought is necessary, not whether it is helpful. United States v. Leighton, 265 F. Supp. 27, 35 (S.D.N.Y. 1967), aff'd, 386 F.2d 822 (2d Cir. 1967), cert. denied, 390 U.S. 1025, 20 L. Ed. 2d 282, 88 S. Ct. 1412 (1968). A bill of particulars is not required where a reasonably diligent attorney is furnished with all the information needed to prepare for trial. United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984).
In this case, the Indictment is quite detailed: The Indictment sets forth eighty overt acts in the narcotics conspiracy count alone. In addition, the government has made available to defense counsel other evidence, including information regarding pretrial statements made by Love, Love's criminal record, cassette tapes of court-authorized wiretaps, documents and tangible objects, laboratory reports, wiretap applications, and several affidavits of investigating agents. Finally, the government has voluntarily provided to Love other relevant information regarding the firearms that were recovered by the government. See Government's Response to Love's Supplemental Memorandum of Law, at 1. In sum, the information that has been provided to Love is more than sufficient to apprise defendant of the charges against him so that he can prepare a defense, avoid unfair surprise at trial, and preclude a second trial for the same offense. Accordingly, defendant's application for a bill of particulars is denied.
Defendant's remaining requests for pretrial discovery are similarly without merit. These requests--the majority of which are made without legal support or any attempt to show why they are necessary--encompass virtually every conceivable type of evidence that the government might or might not offer during Love's trial. For example, one of Love's requests seeks disclosure of the names and addresses of persons interviewed by the government and persons whom the government intends to call as witnesses at trial. The government may be required to produce a witness list only if the defendant makes a "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, 93 L. Ed. 2d 85, 107 S. Ct. 143 (1986). This showing must go "beyond the obvious assertion that such a list would facilitate preparation for trial." United States v. Nezaj, 666 F. Supp. 494, 503 (S.D.N.Y. 1987) (citation omitted). Defendant has failed to make any such showing. Accordingly, defendant's request for disclosure of the names and addresses of persons interviewed by the government and persons whom the government intends to call as witnesses at trial is denied.
In addition, Love seeks the identity of the confidential informants in the government's investigation. "Disclosure of the identity or address of a confidential informant is not required unless the informant's testimony is shown to be material to the defense." United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988), cert. denied, 489 U.S. 1089, 103 L. Ed. 2d 858, 109 S. Ct. 1555 (1989). Defendant has failed to make such a showing. Accordingly, defendant's motion is denied.
Love also seeks disclosure of numerous books, papers, documents, tangible objects, and other materials that may have been obtained from other defendants charged in the Indictment. Rule 16(a)(1)(C) of the Federal Rules of Criminal Procedure governs discovery of documents and tangible objects. The government represents that it has complied with Rule 16(a)(1)(C) and that if it becomes aware of additional material discoverable under this rule, it will provide it promptly to defendant. Accordingly, defendant's request is denied.
Defendant also moves for the disclosure of materials under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and its progeny, including Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972). Brady was not intended to "supply a defendant with all the evidence in the Government's possession which might conceivably assist the preparation of his defense, but to assure that the defendant will not be denied access to exculpatory evidence only known to the Government." United States v. Le Roy, 687 F.2d 610, 619 (2d Cir. 1982), cert. denied, 459 U.S. 1174, 74 L. Ed. 2d 1019, 103 S. Ct. 823 (1983). Further, Brady and its progeny do not require disclosure of Brady material before trial. United States ex rel. Lucas v. Regan, 503 F.2d 1, 3 n.1 (2d Cir. 1974), cert. denied, 420 U.S. 939, 43 L. Ed. 2d 415, 95 S. Ct. 1149 (1975). Brady or Giglio "impeachment" material is properly disclosed when the witness is called to testify at trial. United States v. Percevault, 490 F.2d 126, 131 (2d Cir. 1974). The government represents that it will provide Love with any exculpatory material that has not yet been disclosed at the appropriate time and in sufficient time for Love to make good use of it at trial. Government's Response to Love's Supplemental Memorandum of Law, at 3. Nothing more is required. Finally, much of the information that Love seeks is available to Love through the transcripts of the trials of Love's co-defendants in this case. These transcripts are public documents. Accordingly, defendant's motion for pretrial discovery of this material is denied.
Moreover, defendant seeks written or recorded statements made by co-defendants and co-conspirators. As an initial matter, the government has made available to Love all tape recorded conversations that resulted from electronic surveillance and pre-trial investigation. Consequently, defendant has access to those co-conspirator statements made during the course of the conspiracy. In addition, Love also has access to the transcripts of his co-defendants' trials. These transcripts contain other relevant statements.
To the extent that the defendant seeks other co-conspirator statements, the Second Circuit has held that "Rule 16(a) simply does not encompass these statements, nor does the Jencks Act permit their disclosure over the objection of the government." Percevault, 490 F.2d at 131; see In re United States, 834 F.2d 283, 287 (2d Cir. 1987). Indeed, with respect to the Jencks or 3500 material that this request might encompass, the Second Circuit has ruled that district courts lack authority to order disclosure of witness statements before those witnesses testify. United States v. Ruggiero, 472 F.2d 599, 604 (2d Cir.), cert. denied, 412 U.S. 939, 37 L. Ed. 2d 398, 93 S. Ct. 2772 (1973). Defendant's request is therefore denied.
For the reasons discussed above, defendant's pretrial motions are DENIED.
Dated: New York, New York
August 9, 1994
David N. Edelstein