United States District Court, Southern District of New York
February 8, 2000
UNITED STATES OF AMERICA,
PATRICK KELLY, DEFENDANT.
The opinion of the court was delivered by: Robert W. Sweet, U.S.D.J.
Defendant Patrick Kelly ("Kelly") has moved for (i) an order
dismissing the indictment for failure to provide a sufficient
statement of the facts constituting the offense charged, pursuant
to Rule 7(c)(1), and for violating the First Amendment; (ii)
alternatively, an order requiring the
Government to provide Kelly with a bill of particulars; (iii)
specification of bad acts evidence by the Government at least
thirty days before trial, pursuant to Fed. R. Evid. 403 & 404(b)
and Fed. R. Crim. P. 12(d)(2), and granting of a hearing on the
admissibility of such evidence; (iv) specification of impeachment
evidence and granting of a hearing thereon pursuant to
Fed. R. Evid. 403, 608, & 609; (v) disclosure of Brady, Giglio,
and Bagley exculpatory material; (vi) disclosure of contrary or
inconsistent statements per Kyles v. Whitley; (vii) disclosure
of witness lists, identity of informants, cooperating codefendants,
and opportunity to interview same in preparation for trial per
Roviero and Saa; and (viii) permission to bring additional motions
if necessary for further discovery.
For the reasons set forth below, Kelly's motion will be
Background and Prior Proceedings
Kelly, a manager at Le Bar Bat, a Manhattan nightclub, is
alleged to have publicly distributed fliers targeting four female
ex-employees of Le Bar Bat, who had filed sexual discrimination
and harassment claims against Kelly and others with the United
States Equal Employment Opportunity Commission ("EEOC"). The
fliers, which contain the women's pictures and addresses, falsely
describe them as suspected prostitutes, child molesters, or drug
dealers. Each flier was purportedly authored by a local "crime
watch" group and states that "We want [the target] out of our
neighborhood." The distribution took place on or about April 4,
1998, less than two weeks after Le Bar Bat was notified by the
EEOC of the last of the women's claims. The fliers were placed
near the women's homes and were mailed to their apartment
buildings and to at least one woman's out-of-state parents.
On April 22, 1999, a Grand Jury sitting in the Southern
District returned a one-count indictment against Kelly, charging
him with a violation of 18 U.S.C. § 1512(b)(1). The instant
motion was filed on November 2, 1999. Answer and reply papers
were received through December 8, 1999, at which point oral
argument on the motion was heard.
I. Dismissal of the Indictment
Kelly has moved to dismiss the Indictment on two grounds: (i)
the Indictment does not allege facts sufficient to satisfy the
statutory elements of 18 U.S.C. § 1512(b); (ii) § 1512(b)
is unconstitutional as applied to Kelly as violative of the First
Amendment protection of speech.
The Indictment reads:
On or about April 4, 1998, in the Southern District
of New York and elsewhere, Patrick Kelly, the
defendant, unlawfully, willfully and knowingly, did
use intimidation, threaten, corruptly persuade another
person and attempt to do so, and did engage in
misleading conduct toward another person, with intent
to influence, delay and prevent the testimony of a
person in an official proceeding, to wit, Kelly publicly
distributed flyers labeling four persons who had named
Kelly in pending discrimination claims filed with the
United States Equal Employment Opportunity Commission
as, among other things, suspected prostitutes, child
molesters and/or drug dealers. (Title 18, United States
Code, § 1512(b)(1).)
18 U.S.C. § 1512 is the federal criminal statute prohibiting
witness tampering. As the indictment indicates, Kelly is charged
with violation of subsection (b), which reads, in pertinent part:
Whoever knowingly uses intimidation or physical
force, threatens, or corruptly persuades another
person, or attempts to do so, or engages in
misleading conduct toward another person, with
intent to . . . influence, delay, or prevent the
testimony of any person in an official proceeding
. . . shall be fined under this title or imprisoned
not more than ten years, or both.
18 U.S.C.A. § 1512(b) (West 1984 & Supp. 1999).
A. Factual Sufficiency of the Indictment
The Second Circuit has set forth the standard for the
sufficiency of an indictment as follows:
An indictment is sufficient when it charges a crime
with sufficient precision to inform the defendant
of the charges he must meet and with enough detail
that he may plead double jeopardy in a future
prosecution based on the same set of events. . . .
[A]n indictment need do little more than to track
the language of the statute charged and state the
time and place (in approximate terms) of the alleged
crime. United States v. Stavroulakis, 952 F.2d 686,
693 (2d Cir. 1992) (citations and internal quotation
There is no question that the language of the indictment in this
case tracks that of 18 U.S.C. § 1512(b). Moreover, the
indictment states the time and place of the alleged crime in
sufficiently precise terms to inform Kelly of the charges he must
meet. Kelly's motion, in essence, challenges the sufficiency of
the indictment's factual allegations to establish a violation of
§ 1512(b) on the merits. However, "[i]t is axiomatic that, in
a criminal case, a defendant may not challenge a facially valid
Indictment prior to trial for insufficient evidence. Instead, a
defendant must await a Rule 29 proceeding or the jury's verdict
before he may argue evidentiary sufficiency." United States v.
Gambino, 809 F. Supp. 1061, 1079 (S.D.N.Y. 1992); see United
States v. Calandra, 414 U.S. 338
, 345 (1974); Costello v. United
States, 350 U.S. 359
, 363 (1956); United States v. Contreras,
776 F.2d 51
, 54 (2d Cir. 1985).
B. Constitutionality of 1512(b) As Applied
In United States v. Thompson, 76 F.3d 442 (2d Cir. 1996), this
Circuit rejected a First Amendment challenge to § 1512(b).
While Thompson specifically addressed whether a conviction for
"corrupt persuasion" would violate the First Amendment, the court
indicated that the requirement that the improper act be done with
the purpose of obstructing justice assured that the statute would
not impinge on the territory of the First Amendment. See id. at
Again, Kelly's motion is premature. As the Government points
out, any conviction in this case will necessarily rest on a
jury's finding that Kelly distributed the fliers with the intent
to influence the testimony of the women in the EEOC proceeding.
The requirement that the Government prove such intent safeguards
against First Amendment concerns.
For these reasons, the motion to dismiss the indictment is
II. A Bill of Particulars Is Not Required
The grounds for provision of a bill of particulars pursuant to
Federal Rule of Criminal Procedure 7(f) are well-settled: "Rule
7(f) . . . permits the defendant to seek a bill of particulars in
order to identify with sufficient particularity the nature of the
charge pending against him, thereby enabling defendant [sic] to
prepare for trial, to prevent surprise, and to interpose a plea
of double jeopardy should he be prosecuted a second time for the
same defense." United States v. Bortnovsky, 820 F.2d 572, 574 (2d
Cir. 1987). In order to obtain a bill of particulars, the
defendant must show that the charges of the indictment are so
general that they do not advise him of the specific acts of which
he is accused. See United States v. Torres, 901 F.2d 205, 234 (2d
Cir. 1990); United States v. Henry, 861 F. Supp. 1190, 1197
(S.D.N.Y. 1994). The standard applied to the information sought
is not whether it is helpful to the defense, but whether it is
necessary. See United States v. Love, 859 F. Supp. 725, 738
(S.D.N.Y. 1994); Henry, 861 F. Supp. at 1197. A bill of
particulars is not required where the information sought
by the defendant has been made available in alternative forms. See
Bortnovsky, 820 F.2d at 574; United States v. Panza,
750 F.2d 1141, 1148 (2d Cir. 1984); Love, 859 F. Supp. at 738; United
States v. Ruiz, 702 F. Supp. 1066, 1070 (S.D.N.Y. 1989). A bill
of particulars will not be issued if it would "force the
Government to particularize all of its evidence." Henry, 861 F.
Supp. at 1197 (quoting United States v. Cephas, 937 F.2d 816, 823
(2d Cir. 1991)). Nor may the request be permitted to compel the
Government to disclose the manner in which it will prove the
charges or preview its evidence or legal theory. See id.; United
States v. Facciolo, 753 F. Supp. 449, 451 (S.D.N.Y. 1990), aff'd,
968 F.2d 242 (2d Cir. 1992). The decision to grant or deny a
defendant's request for a bill of particulars is within the sound
discretion of the trial court. Panza, 750 F.2d at 1148.
Under this standard, Kelly's request for a bill of particulars
lacks merit. The Government has provided Kelly with notice of the
specific acts under which he has been charged: the distribution
of the flyers on or about April 4, 1998, in order to intimidate
witnesses in the EEOC Proceeding. In addition, copies of the
flyers were attached to the criminal complaint. This satisfies
the requirements of Fed. R. Crim. P. 7(f).
III. Disclosure of 404(b) Evidence
Kelly also moves for disclosure at least thirty days before
trial of evidence of all other crimes, wrongs, or acts that the
Government intends to introduce at trial, pursuant to Federal
Rule of Evidence 404(b). Rule 404(b) requires that the Government
provide "reasonable notice in advance of trial, or during trial
if the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to introduce at
trial." Fed. R. Evid. 404(b). The Government responds that it
will provide 404(b) material two weeks prior to commencement of
trial, reserving the right to provide notice during trial in the
event new 404(b) material arises and the Court excuses pretrial
notice on good cause shown. As this Court has previously
indicated, the Government's proposal is reasonable and fair. See
United States v. Santos, No. 98 Cr. 736 (RWS), 1999 WL 4912, at
*7 (S.D.N.Y. Jan. 5, 1999).
IV. Impeachment Material Is Not Required To Be Disclosed
Kelly seeks disclosure of impeachment materials thirty days
before trial and a hearing on admissibility of such materials.
The Government responds that it has already provided Kelly with a
copy of his rap sheet, and that further disclosure is not
warranted under Fed. R. Evid. 608 and 609.
In contrast to the general requirement of advance notice for
Rule 404(b) material, the only material under Rules 608 and 609
which requires advance notice is evidence of criminal convictions
more than ten years old. See Fed. R. Evid. 609(b). By providing
Kelly with a copy of his rap sheet, the Government insures that
it has fulfilled this requirement. Further disclosure not being
required by the rules, the request is denied. See, e.g., United
States v. Guevara, No. 99 Cr. 445 (AGS), 1999 WL 639720, at *2
(S.D.N.Y. Aug. 23, 1999).
V. Brady Material
Kelly seeks disclosure of Brady material as soon as it is
discovered by the Government, and disclosure of Giglio material
at least thirty days prior to trial. The Government responds that
it is aware of its obligations to provide exculpatory material
sufficiently in advance of trial to permit the defense to use it
Courts in this Circuit have repeatedly denied pretrial requests
for discovery orders pursuant to Brady where the Government, as
here, has made a good-faith representation to the Court and
defense counsel that it recognizes and will comply with its
disclosure obligations under Brady. See, e.g., United States v.
940 F. Supp. 540, 553 (S.D.N.Y. 1996); United States v.
Schwimmer, 649 F. Supp. 544, 549 (E.D.N.Y. 1986); United States
v. Massino, 605 F. Supp. 1565, 1581 (S.D.N.Y. 1985), rev'd on
other grounds, 784 F.2d 153 (2d Cir. 1986). The Court has been
given no reason to believe that the Government will not comply
with those obligations.
Defendants have also moved to require disclosure of Brady
material of an impeachment nature, i.e., Giglio material, at
least thirty days prior to trial. Brady, however, establishes no
general right of pretrial discovery and gives rise to no pretrial
remedies. See Weatherford, 429 U.S. at 559; United States v.
Evanchik, 413 F.2d 950, 953 (2d Cir. 1969). "Neither Brady nor
any other case . . . requires that disclosures under Brady must
be made before trial." United States ex rel. Lucas v. Regan,
503 F.2d 1, 3 n. 1 (2d Cir. 1974); United States v. Matos-Peralta,
691 F. Supp. 780, 790-91 (S.D.N.Y. 1988).
Due process requires only that a defendant receive such
information before it is too late for him to make beneficial use
of it at trial. United States v. Olson, 697 F.2d 273, 275 (8th
Cir. 1983); United States v. Shoher, 555 F. Supp. 346, 352
(S.D.N.Y. 1983) (accused to receive Brady material in time "to
permit effective `evaluation, preparation, and presentation at
trial'") (quoting United States v. Deutsch, 373 F. Supp. 289, 290
(S.D.N.Y. 1974)). Accordingly, Brady "impeachment" information is
properly disclosed when the witness is called to testify at
trial. See United States v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983)
(evidence going to the credibility of government's witness may be
disclosed on day witness testifies); United States v. Biaggi,
675 F. Supp. 790, 812 (S.D.N.Y. 1987) (Brady information bearing on
witness credibility to be turned over at same time as other
18 U.S.C. § 3500 materials); United States v. Abrams,
539 F. Supp. 378, 390 (S.D.N.Y. 1982) (Brady does not require the
Government to disclose information pertaining to the credibility
of a witness before that witness testifies).
Following the usual practice in this District, the Government
has agreed to make impeachment information available to the
defense at the same time as Jencks Act material, i.e., "one day
prior to the day the witness is called to testify on direct
examination," or, if additional time is reasonably required to
review such material, sufficiently in advance of the witness'
testimony so as to avoid any delay at trial. United States v.
Gutierrez-Flores, No. 94 Cr. 393 (CSH), 1994 WL 558034, at *3
(S.D.N.Y. Oct. 11, 1994). This practice will allow defense
counsel adequate time to prepare for cross-examination of
government witnesses as they testify at trial.
The Court accepts the Government's representation that it will
provide timely disclosure if any Brady material comes to light.
For these reasons, the motion to compel disclosure of Brady
material is denied.
VI. Production of Inconsistent Witness Statements
Kelly seeks production of inconsistent witness statements
pursuant to Kyles v. Whitley, 514 U.S. 419 (1995). The Government
responds that it will abide by its Jencks Act obligations and
will produce all prior statements of its witnesses. The
Government also represents that if it becomes aware of parties
that it does not intend to call as witnesses who possess
exculpatory information, it will disclose the identity of such
Given the Government's representations, it is unnecessary to
compel disclosure at this time.
VII. Disclosure of Identities of Witnesses and Informants
Kelly seeks disclosure of a list of witnesses the Government
plans to call at trial, given the serious nature of the charges
against Mr. Kelly. Kelly also
seeks disclosure of the names, addresses, and criminal histories
of any informants on whom the Government is relying.
This Circuit has previously declared that in determining
whether disclosure of a witness list is appropriate, the
defendant's specific need for the information "should be balanced
against the `possible dangers accompanying disclosure (i.e.
subornation of perjury, witness intimidation, and injury to
witnesses).'" United States v. Cafaro, 480 F. Supp. 511, 520
(S.D.N.Y. 1979) (quoting United States v. Cannone, 528 F.2d 296,
302 (2d Cir. 1975)). "[A]bsent `some particularized showing of
need,' the defendant is not entitled to lists of government
witnesses. . . ." United States v. Wilson, 565 F. Supp. 1416,
1438 (S.D.N.Y. 1983) (quoting United States v. Pastor,
419 F. Supp. 1318, 1330 (S.D.N.Y. 1975), aff'd 557 F.2d 930 (2d Cir.
1977)). "[A]n abstract, conclusory claim that such disclosure
[is] necessary," Cannone, 528 F.2d at 301-02, such as Kelly makes
in this motion, is simply not sufficient to make the requisite
As to informants, this Circuit has held that "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 (2d Cir. 1988).
Again, Kelly has made no such showing.
For the reasons set forth above, Kelly's motion is denied. The
trial date of March 20, 2000 is final.
It is so ordered.
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