loans for the new home and a new car. The trial court granted a motion pursuant to Rule 29 of the Federal Rules of Criminal Procedure dismissing the RICO charges against the Hellmans. However, they were convicted of mail fraud and wire fraud. The Second Circuit reversed their convictions because "once the RICO charges against the Hellmans were dismissed, all but an infinitesimal fraction of the evidence at this sixteen-month trial lost any relevance to the mail and wire fraud charges against them." Id. at 844. Both cases are easily distinguishable from the present case. The key factor in both Tellier and DiNome was that the evidence supporting the RICO charges would not have been admissible in separate trials of the defendants. As explained above, much of the evidence supporting the RICO charges would be admissible in a separate trial against Delvalle to support the narcotics conspiracy charge. Moreover, unlike the defendants in DiNome, who had few if any ties to the DeMeo Crew, Delvalle was a high ranking member of the Nasty Boys narcotics distribution conspiracy.
The Court finds that Delvalle has failed to meet his burden, under Rule 14, of demonstrating that a joint trial will result in substantial prejudice. Therefore, his motion for severance is denied. Nonetheless, the Court recognizes that in cases where one defendant is tried along with codefendants who are charged with acts of extreme violence, the former defendant may suffer some degree of prejudice. To mitigate the risk of prejudice, the Court will instruct the jury that it must consider the evidence as to each defendant individually. The Supreme Court has recognized that this precaution is sufficient to protect the defendant's trial rights because "juries are presumed to follow their instructions." Richardson, 481 U.S. at 211.
III. MOTIONS FOR VARIOUS PRETRIAL DISCLOSURES
A. Bill of Particulars
Defendants Jose Muyet, John Muyet, Pedro Narvaez, Julio Matias, William Delvalle, Frank Sosa and Antonio Feliciano each request a bill of particulars pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure. The defendants seek details relating to: (1) Counts One and Two, the RICO enterprise charge
and the RICO conspiracy charge;
(2) Counts Three through Twenty-Nine, the violent acts in aid of racketeering charges;
(3) Count Thirty, the narcotics conspiracy charge;
and (4) Counts Thirty-One through Forty-Three, the firearms charges.
An indictment need only set forth a "plain, concise and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c). The purpose of a bill of particulars is merely to "inform a defendant of charges with sufficient precision to allow preparation of a defense, to avoid unfair surprise, and to preclude double jeopardy" when the indictment is too vague to serve this purpose. United States v. GAF Corp., 928 F.2d 1253, 1260 (2d Cir. 1991) (citing Wong Tai v. United States, 273 U.S. 77, 82, 71 L. Ed. 545, 47 S. Ct. 300 (1927)). It is not an investigative tool to be used for the "acquisition of evidentiary detail." United States v. Torres, 901 F.2d 205, 234 (2d Cir.) (quoting Hemphill v. United States, 392 F.2d 45, 49 (8th Cir.), cert. denied, 393 U.S. 877, 21 L. Ed. 2d 149, 89 S. Ct. 176 (1968)) (internal quotation marks omitted), cert. denied, 498 U.S. 906, 112 L. Ed. 2d 229, 111 S. Ct. 273 (1990). Indeed, the Government is not required to particularize all of its evidence before trial. United States v. Cephas, 937 F.2d 816, 823 (2d Cir. 1991), cert. denied, 502 U.S. 1037, 116 L. Ed. 2d 788, 112 S. Ct. 884 (1992). Accordingly, "it is improper to use a bill of particulars to compel the Government to disclose the manner in which it will prove the charges or preview its evidence or legal theory." United States v. LaMorte, 744 F. Supp. 573, 577 (S.D.N.Y. 1990); accord United States v. Jimenez, 824 F. Supp. 351, 363 (S.D.N.Y. 1993) ("The Government may not be compelled to provide a bill of particulars disclosing the manner in which it will attempt to prove the charges, the precise manner in which a defendant committed the crime charged, or give a preview of its evidence and legal theories.").
The Court of Appeals for the Second Circuit has instructed that "[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." Torres, 901 F.2d at 234 (quoting United States v. Feola, 651 F. Supp. 1068, 1132 (S.D.N.Y. 1987), aff'd mem., 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 834, 107 L. Ed. 2d 72, 110 S. Ct. 110 (1989)) (internal quotation marks omitted). If the information sought by the defendant is provided by the indictment or by some other pretrial disclosure, such as discovery pursuant to Rule 16 of the Federal Rules of Criminal Procedure, a bill of particulars is not required. See United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). The decision to grant or deny a bill of particulars is within the sound discretion of the District Court. Torres, 901 F.2d at 234.
In light of these established principles, the Court has carefully scrutinized the indictment together with the relevant pretrial disclosures and determined that they adequately advise the defendants of the specific acts of which they are accused. First, with respect to the RICO enterprise and the RICO conspiracy charges, the indictment provides the defendants with: (1) the names and aliases of the defendant members of the RICO enterprise and conspiracy; (2) the name of the enterprise; (3) a brief description of the purposes, means and methods of the RICO enterprise; (4) the area in which the enterprise operated; and (5) the approximate duration of the enterprise. Furthermore, as explained below, the indictment provides ample detail regarding the alleged predicate acts of the RICO enterprise. The Court finds that the indictment, by itself, fully satisfies the specificity requirements of Rule 7. The defendants are not entitled to a bill of particulars setting forth the "whens," "wheres," and "with whoms" regarding the Nasty Boys enterprise and conspiracy. See Jimenez, 824 F. Supp. at 363; United States v. Gambino, 809 F. Supp. 1061, 1071 (S.D.N.Y. 1992); United States v. Wilson, 565 F. Supp. 1416, 1438 (S.D.N.Y. 1983); see also Torres, 901 F.2d at 233-34 (affirming denial of request for bill of particulars seeking the date defendant joined narcotics conspiracy, the identities of the coconspirators, and the precise dates and locations relating to overt acts involved in the conspiracy).
Second, with respect to the RICO predicate acts alleged in Count One and the violent acts in aid of racketeering charged in Counts Three through Twenty-Nine, the indictment sets forth: (1) the names and aliases of the defendants charged with the violent acts; (2) the dates of each alleged violent act; (3) the nature of each violent act (e.g. murder, attempted murder); and (4) the names and aliases of most of the victims of the alleged violent acts.
The Government has supplemented the indictment by providing the defendants with autopsy reports, crime scene photographs, crime scene diagrams, and firearms and ballistics evidence. Furthermore, in support of its motion for an anonymous jury, the Government provided additional detail regarding Racketeering Acts Two through Ten and Twelve, the murders of Rafael Cruz, Angel Luis Rivera, Nelson Pacheco, Henry Cruz, Antonio Flores, Julio Flores, Carlos Sanchez, Raymond Sanchez, the conspiracy to murder Diego Garcia, and the attacks on the Wolfpack gang and the unnamed rival gang. See Finnegan Aff. PP 6-9.
As noted above, the indictment does not provide the defendants with the names of the gang members targeted by the Wolfpack attack or the rival gang attack. However, the indictment sets forth the date of the attacks, the names of the defendants charged in the attacks, and the nature of each attack. The Affirmation also describes the circumstances of each attack in some detail. The Affirmation states that:
The defendants, armed with an array of firearms, drove in several vehicles to areas in the Bronx that were believed to be frequented by members of rival gangs who had, in some way, shown disrespect for the Nasty Boys. These shootings are charged in Racketeering Act 6 and Counts 11 and 12 (the Wolfpack Attack) and Racketeering Acts 9 and 10 and Counts 17 to 20 (the Rival Drug Gang Attack and murders of the Sanchez brothers). In both instances, the defendants and their co-racketeers drove in a caravan to the block where they believed they would find members of the other gang, and indiscriminately opened fire on everyone standing in the area, including bystanders who had no connection to the drug gangs. Numerous people were badly injured in both shootings and, in the second incident, two of the bystanders, Carlos and Raymond Sanchez, were killed in the hail of gunfire.
Finnegan Aff. P 7. To the extent that the defendants request additional details regarding these and other racketeering acts, the Court finds such a request to be without merit. The Government is not required to provide further specifics regarding the particular acts in which the defendants are alleged to have participated, or for which they are being held responsible. See Jimenez, 824 F. Supp. at 363.
Third, with respect to the narcotics conspiracy count, the indictment provides the defendants with: (1) the names and aliases of the defendant members of the conspiracy; (2) the approximate duration of the conspiracy; (3) numerous overt acts in furtherance of the conspiracy; (4) the locations of the overt acts; (5) the types of narcotics involved in the overt acts; and (6) descriptions of each defendant's role in the overt act. Although the Government is not even required to prove a single overt act in furtherance of a narcotics conspiracy, see United States v. Shabani, 513 U.S. 10, 130 L. Ed. 2d 225, 115 S. Ct. 382, 386 (1994), the indictment sets forth seven overt acts in the narcotics conspiracy count. Because the Government is not required to charge overt acts in the indictment, the information provided on the face of Count Thirty "is, itself, more detailed than defendants have a right to demand with respect to the overt acts enumerated therein." Feola, 651 F. Supp. at 1133; see Jimenez, 824 F. Supp. 351 at 363. Moreover, the Government has supplemented the information contained in the indictment by allowing the defendants to inspect narcotics seized from various coconspirators. They have also provided the defendants with vouchers indicating the dates of the seizures and the persons from whom the narcotics were seized, and laboratory reports indicating the types, amounts and purities of the seized narcotics. The indictment and additional pretrial disclosures provide ample information regarding the alleged narcotics conspiracy to allow the defendants to prepare a defense, avoid unfair surprise and prevent a second prosecution for the same offense. See GAF Corp., 928 F.2d at 1260.
Fourth, with respect to the firearm counts, the indictment states: (1) the names and aliases of each defendant charged with the firearm offense; (2) the date or approximate dates of the firearm offense; and (3) the violent crime or the narcotics crime to which the firearm offense relates. As discussed in the preceding paragraphs, the indictment provides ample detail regarding the violent crimes and the narcotics crime to which the various firearms offenses relate. Furthermore, the Government has provided the defendants with evidence relating to firearms and ballistics. The indictment coupled with the additional pretrial disclosures sufficiently advise the defendants of the specific acts of which they are accused. See Torres, 901 F.2d at 234.
Nevertheless, defendant William Delvalle argues that the indictment is too vague with respect to Count Forty-Three because it merely informs the defendants that they used or carried firearms in relation to the narcotics conspiracy which lasted from in or about 1991 up to and including October 31, 1995. He claims that to defend himself against this charge, he must be prepared to show that he did not carry or use a firearm during the entire duration of the conspiracy.
Thus, he argues, the Government should particularize the dates and times he is alleged to have used or carried a firearm in relation to the narcotics conspiracy.
A bill of particulars confines the Government's proof at trial to the particulars furnished. See United States v. Perez, 940 F. Supp. 540, 1996 WL 506521, at *11 (S.D.N.Y. 1996) (citing United States v. Glaze, 313 F.2d 757, 759 (2d Cir. 1963)); Feola, 651 F. Supp. at 1132. Therefore, a request for a bill of particulars should be denied when it would unduly restrict the Government's ability to present its case. Perez, 940 F. Supp. 540, 1996 WL 506521, at *11; Jimenez, 824 F. Supp. at 363; Feola, 651 F. Supp. at 1132. At oral argument, the Government explained that its witnesses will testify that the defendants carried firearms in relation to their narcotics dealing, but they may not be able to specify the dates on which the defendants carried firearms. If the Court were to grant Delvalle's request for particulars, it might preclude the Government from using proof it may develop as the trial approaches. Accordingly, his request must be denied.
In considering a request for a bill of particulars, "the important question is whether the information sought is necessary" to the defense. LaMorte, 744 F. Supp. at 577. The numerous particulars requested by the defendants are not necessary to their defense. The information provided in the indictment, in the Finnegan Affirmation and through discovery, will allow the defendants to prepare their defense and avoid unfair surprise. Therefore, the defendants' requests for particulars regarding the various counts in the indictment are denied.
B. Additional Discovery
Defendants Pedro Narvaez, Julio Matias, William Delvalle, Frank Sosa and Antonio Feliciano seek additional discovery, including a list of confidential informants, cooperating witnesses and all other Government witnesses. They also request that the Government's informants and cooperating witnesses be made available to them for interviews prior to trial.
1. Confidential Informants
The Supreme Court has held that when "the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." Roviaro v. United States, 353 U.S. 53, 60-61, 1 L. Ed. 2d 639, 77 S. Ct. 623 (1957). However, the Government is not required to disclose the identity of a confidential informant unless the defendant shows that the informant's testimony is "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); see DiBlasio v. Keane, 932 F.2d 1038, 1041-42 (2d Cir. 1991); United States v. Russotti, 746 F.2d 945, 949 (2d Cir. 1984) ("An informant's identity need not be disclosed unless 'essential to the defense.'" (quoting Scher v. United States, 305 U.S. 251, 254, 83 L. Ed. 151, 59 S. Ct. 174 (1938))). The defendant bears the burden to demonstrate the need for the "extraordinary remedy of disclosure." Ortega v. United States, 897 F. Supp. 771, 780 (S.D.N.Y. 1995). A defendant does not satisfy this burden by merely showing that the informant was a participant in and witness to the crime charged. Saa, 859 F.2d at 1073 (citing United States v. Jimenez, 789 F.2d 167 (2d Cir. 1986)).
The defendants have failed to satisfy their burden of showing that the testimony of any confidential informant would be material to their defense. They argue that it is likely that the informants will provide the only direct evidence in the case and that their testimony will be key. "Mere speculation, however, that the informer may possibly be of some assistance does not overcome the strong public interest in protecting informants." United States v. Martinez, 634 F. Supp. 1144, 1150 (S.D.N.Y. 1986). Accordingly, these motions are denied.
2. Witness Lists
Although Rule 16 of the Federal Rules of Criminal Procedure does not require the Government to disclose the identity of its prospective witnesses, the District Court has the authority to compel such disclosure. United States v. Cannone, 528 F.2d 296, 300 (2d Cir. 1975). To obtain a list of the Government's witnesses, a defendant must make a "specific showing that disclosure . . . [is] both material to the preparation of his defense and reasonable in light of the circumstances surrounding his case." Id. at 301; see United States v. Bejasa, 904 F.2d 137, 139-40 (2d Cir.), cert. denied, 498 U.S. 921, 112 L. Ed. 2d 252, 111 S. Ct. 299 (1990); United States v. Love, 859 F. Supp. 725, 739 (S.D.N.Y. 1994) ("The government may be required to produce a witness list only if the defendant makes a 'particularized showing of need.'" (quoting United States v. Wilson, 565 F. Supp. 1416, 1438 (S.D.N.Y. 1983))). A defendant does not satisfy this burden by claiming that a witness list would be helpful. See Love, 859 F. Supp. at 739 (citing United States v. Nezaj, 666 F. Supp. 494, 503 (S.D.N.Y. 1987)). "Especially in narcotics cases, where the dangers of witness intimidation, subornation of perjury or actual injury to witnesses are great, the defendant's requests for a witness list should not be granted absent a particularized showing of need." United States v. Taylor, 707 F. Supp. 696, 703 (S.D.N.Y. 1989) (citations omitted). Because the defendants have made no such specific showing, the request is denied.
3. Rule 16 Discovery Requests
The defendants demand various materials pursuant to Rule 16 of the Federal Rules of Criminal Procedure. The Government has represented to the Court that it has and will continue to comply with its Rule 16 discovery obligations. The Court has received a copy of the Government's comprehensive discovery index dated October 21, 1996. Based on the foregoing, the defendants' motions are denied. However, if the Government fails to comply with its discovery obligations in any way, the Court will take appropriate measures at trial pursuant to Rule 16(d)(2) of the Federal Rules of Criminal Procedure.
For the reasons stated above, the Government's motion for an anonymous, semi-sequestered jury is GRANTED. It is HEREBY ORDERED that (1) voir dire will be limited so that the potential jurors on the voir dire panel, and the jurors and alternates selected to serve at trial, do not reveal their names, addresses, or places of employment; (2) during the trial, the jurors will be kept together during recesses, and the United States Marshals Service will provide lunch for the jurors as a group or take the jurors to lunch as a group each day; and (3) at the end of each trial day, the United States Marshals Service will transport the jurors together from the Courthouse to an undisclosed central location, from which they can leave for their respective communities. Defendant William Delvalle's motion for severance is DENIED. The motions of Jose Muyet, John Muyet, Pedro Narvaez, Julio Matias, William Delvalle, Frank Sosa, and Antonio Feliciano seeking a bill of particulars are DENIED. The motions of Pedro Narvaez, Julio Matias, William Delvalle and Antonio Feliciano seeking a list of confidential informants are DENIED. The motions of Pedro Narvaez, Julio Matias and Antonio Feliciano seeking a list of Government witnesses are DENIED. The motions of Pedro Narvaez, Julio Matias, Frank Sosa, and Antonio Feliciano seeking additional discovery are DENIED. To the extent that the individual defendants have joined in the motions made by all other codefendants, those motions are DENIED for the reasons stated above.
New York, New York
November 5, 1996
Peter K. Leisure