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UNITED STATES v. CANTY

July 15, 1997

UNITED STATES OF AMERICA against DORIAN CANTY, WILLIAM STEVENS a/k/a PEANUT, FNU LNU a/k/a "B.R.," KEITH LNU, KEVIN LNU, VANESSA LNU, JAY LNU and FNU LNU a/k/a "SMITTY"


The opinion of the court was delivered by: MCAVOY

 I. PROCEDURAL HISTORY

 Presently before the Court are defendants Rodney Sapp and Richard Garrison's omnibus motions for an order compelling: a bill of particulars; grant of discovery and inspection; severance of trial; dismissal of the indictment; suppression of evidence; production and exclusion of evidence relating to other convictions and bad acts; disclosure of co-defendant cooperation; disclosure of confidential informants' identities and statements; disclosure of co-conspirators' statements; leave to renew or initiate new motions; and an audibility hearing to determine the coherence of various government recordings. Sapp further moves for the right to join in co-defendants' motions. The government contests all of the foregoing motions in addition to moving the Court to amend the Indictment to reflect the defendants' true names.

 II. FACTS

 On April 10, 1997 a Troy, New York grand jury indicted defendants Dorian Canty, William Stevenson a/k/a William Stevens a/k/a Glen William Stevens a/k/a Peanut, Rodney Sapp a/k/a Fnu Lnu a/k/a "B.R.," Richard Garrison, a/k/a Keith Lnu a/k/a Rashad Garrison, Kevin Lnu, Vanessa Davis a/k/a Vanessa Lnu, Jay Lnu and Robert Hubert a/k/a Fnu Lnu a/k/a "Smitty" on charges of possessing with intent to distribute "crack" cocaine and conspiring to distribute "crack" cocaine. See 21 U.S.C. §§ 846; 841(a)(1); 18 U.S.C. § 2. The total body of charges span a period from March 5, 1997 to April 10, 1997, but specifically set forth the dates, locations, participants and substances involved in the alleged transactions.

 Sapp and Garrison filed the instant motions on June 16, 1997 and June 18, 1997, respectively. The government timely filed opposition papers for each.

 III. DISCUSSION

 The government moves only to amend the Indictment to reflect defendants' true names. Defendants, however, move the Court for: (1) a bill of particulars; (2) grant of discovery and inspection; (3) disclosure of co-conspirators' statements; (4) disclosure of witnesses' identities; (5) disclosure of informants' identities; (6) production of exculpatory material; (7) severance of trial; (8) dismissal of the indictment; (9) suppression of evidence; (10) production and exclusion of evidence relating to other convictions and bad acts; (11) leave to renew or initiate new motions; (12) an audibility hearing; and (13) the right to join in co-defendants' motions. The Court addresses each motion in turn.

 A. Government's Motion to Amend the Indictment

 A Court may freely grant amendments to an Indictment that relate to the Indictment's form and do not affect a defendant's substantive rights. See Russell v. United States, 369 U.S. 749, 82 S. Ct. 1038, 1050, 8 L. Ed. 2d 240 (1960); United States v. McGrath, 558 F.2d 1102, 1105 (2d Cir. 1977). Here, the government requests an Order amending the Indictment to reflect the defendants' true identities, identities obfuscated by the numerous aliases defendants used at the time of indictment.

 Defendants do not argue that such an amendment would impair their substantive rights. Moreover, the Court sees no adverse affect resulting from the proposed change (i.e. crimes charged and available defenses are not affected). See United States v. Kegler, 233 U.S. App. D.C. 58, 724 F.2d 190, 195 (D.C. Cir. 1984). Thus, in keeping with the modern view and broad legal consensus concerning misnomer, the Court orders that the Indictment be amended to reflect defendants' true names. See Id. 724 F.2d 190 (D.C. Cir. 1984); United States v. Denny, 165 F.2d 668, 670 (7th Cir. 1947). As such, all further motions and dispositions involving the instant case shall be captioned as follows:

 
UNITED STATES OF AMERICA
 
--against--
 
DORIAN CANTY, WILLIAM STEVENS, a/k/a GLEN WILLIAM STEVENS, a/k/a PEANUT; RODNEY SAPP, a/k/a "B.R;" RICHARD GARRISON, a/k/a RASHAD GRIFFIN a/k/a KEITH LNU; VANESSA LNU, a/k/a VANESSA DAVIS ROBERT HUBERT, a/k/a "SMITTY" VANESSA DAVIS and ROBERT HUBERT
 
Defendants.
 
97-CR-97

 B. Defendants' Motions

 Defendants Garrison and Sapp have made several motions independent of one another. Their motions, however, largely seek the same relief. As such, when the relief defendants request is the same, the Court will address their motions jointly, mindful of the individual facts each defendant alleges.

 1. Bill of Particulars

 The purpose of a bill of particulars is to enable the defendant to prepare a defense, interpose a plea of double jeopardy, and prevent surprise at trial. See United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). However, there is no requirement that the government particularizes its evidence. See United States v. Davidoff, 845 F.2d 1151, 1152 (2d Cir. 1988); United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990). A bill of particulars is only required when the charges in the Indictment are so general that they fail to appraise the defendant of the specific acts of which he is accused. See Torres, 901 F.2d at 234; United States v. Feola, 651 F. Supp. 1068, 1132 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (1989). Supplying evidentiary detail is not the function of the bill of particulars; it is not meant to be a method for compelling disclosure of the government's evidence before trial. See Torres 901 F.2d at 234; United States v. Lebron, 222 F.2d 531, 535-36 (2d Cir. 1955).

 Generally, if the Indictment contains the information sought by the defendant, a bill of particulars is not necessary. See Bortnovsky at 574. In any case, whether or not to grant such a request rests in the sound discretion of the trial judge. See United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984).

 In this case, Sapp argues that a bill of particulars is appropriate because the indictment does not specify what conduct of his furthered the alleged crimes. In his motion for a bill of particulars Garrison seeks, inter alia, the particular times, dates, locations and circumstances of the alleged possession as well as a statement specifying the elements of the conspiracy, the overt acts involved, the identities of other conspirators and witnesses to the overt acts, the content of the communications between the individuals involved and the type of cocaine allegedly distributed.

 The Indictment sets forth the crimes charged, the date on which the crimes were allegedly committed, the participants, the location and the substances involved. Thus, because "much of the information requested in the bill of particulars is readily found in the indictment," the Court finds "the indictment in this case is sufficiently detailed so that the defendant can adequately prepare a defense, avoid prejudicial surprise at trial, and raise any possible defense of double jeopardy." See United States v. Remy, 658 F. Supp. 661, 669 (S.D.N.Y. 1987). As such, the Court concludes that the Indictment, coupled with the discovery information the government has thus far provided to defendants, sufficiently apprises them of the crime charged and the general outline of the government's case against them ...


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