that there is no need for an order as requested by defendant.
I direct the government to turn over the names of its witnesses and any witness statements covered by the Jencks Act at the pretrial conference. Defendant's motion is otherwise denied, except to the extent that the government has provided or agreed to provide the documents requested.
B. Rule 404(b) and Rule 609 Material
Defendant moves for discovery and limitation of the use of evidence of prior bad acts and impeachment material pursuant to Rules 404(b) and 609. Defendant also requests a hearing to determine the admissibility of such evidence.
I find that a hearing on this matter is not necessary at this time. I will reserve on these matters and review this issue with the parties at the pretrial conference. Therefore, I will defer ruling on the introduction of this evidence until that time. At the pretrial conference, the Government must set forth all the evidence of this type that it intends to use at trial.
C. Grand Jury Proceedings
Defendant moves for discovery relating to various aspects of the grand jury proceedings that led to his indictment. Defendant also moves to dismiss the indictment based upon alleged irregularities in the grand jury proceedings.
There is a presumption that grand jury proceedings are lawful and regular, United States v. Torres, 901 F.2d 205, 232 (2d Cir.) (quoting Hamling v. United States, 418 U.S. 87, 139 n. 23, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974)), cert. denied, 498 U.S. 906, 112 L. Ed. 2d 229, 111 S. Ct. 273 (1990), and disclosure of grand jury proceedings is available only by order of the Court. Fed. R. Crim. P. 6(e). A party seeking disclosure of grand jury proceedings bears the burden of establishing a "particularized need" or "compelling necessity" for such disclosure which outweighs the policy of grand jury secrecy. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 60 L. Ed. 2d 156, 99 S. Ct. 1667 (1979); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 3 L. Ed. 2d 1323, 79 S. Ct. 1237 (1959); In re Rosahn, 671 F.2d 690, 695 (2d Cir. 1982). Unspecified allegations of impropriety or mere speculation are not sufficient to satisfy this heavy burden. United States v. Calandra, 414 U.S. 338, 345, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974). Therefore, "review of grand jury minutes is rarely permitted without specific factual allegations of governmental misconduct." Torres, 901 F.2d at 233.
Defendant has not advanced any proof controverting the presumption of regularity in the grand jury proceedings in this case. See, e.g., In re Grand Jury Proceedings, 632 F.2d 1033, 1041 (3d Cir. 1980). Defendant's has therefore failed to establish a particularized need for disclosure of the grand jury proceedings. United States v. Williams, 644 F.2d 950, 952 (2d Cir. 1981).
Furthermore, under federal law, a defendant may not challenge an otherwise valid indictment upon the grounds that the evidence before the grand jury was insufficient or incompetent. United States v. Calandra, 414 U.S. 338, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1978); Costello v. United States, 350 U.S. 359, 100 L. Ed. 397, 76 S. Ct. 406 (1956). A claim that inspection of the grand jury proceedings is necessary to allow for preparation of motions does not satisfy the defendant's burden in this instance. United States v. Leo, 406 F. Supp. 1174 (E.D. Wisc. 1976). This motion is therefore denied.
D. Disclosure of Informants
Defendant moves for disclosure of the identity of any informants that were used in this case. The government states that no informants were used. This motion is therefore denied.
E. Dismissal of Indictment
Defendant moves to dismiss the indictment on the grounds that it is insufficient on its face. He contends that the indictment simply tracks the language of the statute and fails to set forth the essential facts of the offenses charged.
It is well settled that an indictment is sufficient "if, first, it contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecution for the same offense." Hamling, 418 U.S. at 117. Moreover, "it is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as 'those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.'" Id. (quoting United States v. Carll, 105 U.S. 611, 26 L. Ed. 1135 (1881)).
The indictment here meets this standard. It sets forth the times and places when defendant is alleged to have possessed the drugs, weapons and other contraband in question. The motion to dismiss the indictment is therefore denied.
F. Renewal of Motions
Defendant requests that he be permitted to renew his motions later if a basis arises for doing so. This motion is granted to the extent that such additional motions are not untimely and that they were not or could not have been raised earlier.
Defendant's motions (Item 11) for discovery is granted to the extent that the government has provided or agreed to provide the documents requested, and to the extent that the government is directed to turn over the names of its witnesses and any witness statements covered by the Jencks Act at the pretrial conference.
The court reserves on defendant's motion for discovery and limitation of the use of evidence of prior bad acts and impeachment material pursuant to Rules 404(b) and 609.
In all other respects, defendant's motions for discovery, to suppress evidence, to dismiss the indictment, and for other relief are denied.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
June 10, 1996.
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