be cured by a limiting instruction. Zafiro, 506 U.S. at 539,
113 S.Ct. 933. For these reasons, the Court DENIES Defendants
Grand, Mercedes, Pulchan, Singh, Sylla and William's request for
3. Severance of Counts
The Severance Defendants' request for a severance of the Counts
in which they are not named, is similarly without merit. All ten
Defendants are charged in a total of twenty-five (25) Counts,
which include racketeering, RICO conspiracy, conspiracy, mail
fraud, and false statements. All ten Defendants worked at API,
and all of the acts charged in the Indictment relate to API's
Moreover, an understanding of the nature of API's business is
necessary for an understanding of all of the Counts in the
Indictment. See United States v. Turoff, 853 F.2d 1037, 1044
(2d Cir. 1988) (finding joinder of mail-fraud and tax-fraud
counts proper in multi-count, multi-defendant case where "proof
of one scheme [was] indispensable for a full understanding of the
other"). Proof of facts regarding API's operation would require
much of the same testimony and evidence presented in a trial for
all of the Counts. Accordingly, the Severance Defendants' request
for a severance of Counts is also DENIED.
Defendants Braun, Grand, Sylla and William have also moved for
a Bill of Particulars, disclosure of material pursuant to Brady
v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),
disclosure of material pursuant to Fed.R.Evid. 404(b), early
production of Jencks Act material, preservation of rough notes of
Government agents, and additional discovery requests.
1. Bill of Particulars
Pursuant to Rule 7(f) of the Federal Rules of Criminal
Procedure, Defendants move for a Bill of Particulars. "Rule 7(f)
. . . permits a 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 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
offense. . . . Generally, if the information sought by defendant
is provided in the indictment or in some acceptable alternate
form, no bill of particulars is required." United States v.
Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987); United States v.
Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988).
"Whether to grant a bill of particulars rests within the sound
discretion of the district court." United States v. Panza,
750 F.2d 1141, 1148 (2d Cir. 1984). The Second Circuit has
"consistently sustained indictments which track the language of a
statute and, in addition, do little more than state time and
place in approximate terms." United States v. Salazar,
485 F.2d 1272, 1277 (2d Cir. 1973) (citing United States v. Fortunato,
402 F.2d 79, 82 (2d Cir. 1968)). Thus, 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." United States v. Torres,
901 F.2d 205, 234 (2d Cir. 1990) (quoting United States v. Feola,
651 F. Supp. 1068, 1132 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (2d
A bill of particulars is not meant to be a tool to compel
disclosure of the Government's case before trial. See United
States v. Gottlieb, 493 F.2d 987, 994 (2d Cir. 1974); United
States v. Nova-Nunez, No. 96 Cr. 0599, 1997 WL 30965, at *4
(S.D.N.Y. Jan.24, 1997); United States v. Facciolo, 753 F. Supp. 449,
451 (S.D.N.Y. 1990). The Government is not required to
disclose the manner in which it will attempt to prove the
charges, United States v. Wilson, 565 F. Supp. 1416, 1438-39
(S.D.N.Y. 1983), nor the means by which the crimes charged were
committed. United States v. Andrews, 381 F.2d 377, 378 (2d Cir.
1967). The Government is not
required to provide information that would, in effect, give the
Defendant a preview of the Government's case before trial.
United States v. Simon, 30 F.R.D. 53, 55 (S.D.N.Y. 1962).
In deciding a motion for a bill of particulars, "[t]he
important question is whether the information sought is
necessary, not whether it is helpful." Facciolo, 753 F. Supp. at
451. The Government has provided the Defendants with a copy of
the Indictment and with additional, voluminous discovery that
supplements the information provided in Indictment. (Gov.'s Mem.
at 118-22.) The Indictment, which is 43 pages long, names the
individuals involved in each of the alleged acts, provides
specific dates on which certain acts occurred, and identifies
allegedly false mailing statements by the dates they were issued.
The additional discovery already provided by the Government
includes "all of the API Mailing Statements, Qualification
Reports and invoices mentioned in the [I]ndictment, as well as
any other such documents in the Government's possession . . .;
computerized, searchable indices of the Mailing Statements and
invoices, prepared by the Government;*fn5 numerous photographs
of and forensic reports concerning the postage meters referenced
in the Indictment; Postal Service records and correspondence
relating to the postage meters; monthly, weekly and daily
postage-usage logs maintained by API; petty-cash logs maintained
by API; handwritten records relating to the charged bribes, . . .
[and] all similar documents in the Government's possession; two
affidavits sworn in support of search warrants . . .; and
memoranda containing whatever post-arrest statements were made by
the [D]efendants." (Gov.'s Mem. at 121.)
All of this information apprises the Defendants of the charges
against them with sufficient precision to enable them to prepare
a defense and avoid unfair surprise at trial. Accordingly, the
information sought by Defendants is not necessary to assist
Defendants in the preparation, and their request for a Bill of
Particulars is DENIED.
2. Discovery Regarding Co-Conspirators and Confidential
Informants, Jencks Act Material
Defendants request early or immediate production of names of
any indicted or unindicted aiders, abettors, conspirators or
co-conspirators. (See, e.g., Kalina Affirm. (Bill of
Particulars) at 9-11). Defendants also request early production
of Jencks Act material. (See, e.g., Grand Mem. (Discovery) at
The Government is not obligated to disclose the identities of
any confidential informants or other witnesses prior to trial
unless the Defendants make a showing that this knowledge is
material to their defense. Fed.R.Crim.P. 16; United States v.
Saa, 859 F.2d 1067, 1073 (2d Cir. 1988). "Upon a showing of
need, it is in the district court's discretion whether to compel
disclosure of a witness list." United States v. Belin, No. 99
Cr. 214, 2000 WL 679138 at *10 (S.D.N.Y., May 24, 2000) (citing
United States v. Cannone, 528 F.2d 296, 298 (2d Cir. 1975)).
A defendant does not satisfy the burden of materiality only by
showing that an informant was a witness to or a participant in
the crimes charged. Saa, 859 F.2d at 1073. Here, Braun argues
only that because the charged acts do not involve violence and
there is no danger of witness intimidation, the requested
information should be provided. (Braun Reply Mem. at 3-6.)
Defendants put the cart before the horse, as it is up to the
Defendants first to show that the information is material. In
the absence of a specific showing of need, disclosure is not
necessary. See United States v. Bejasa, 904 F.2d 137, 140 (2d
Cir. 1990); Belin, 2000 WL 679138 at *10 (collecting and
discussing cases). Defendants' request for names of all aiders,
abettors, unindicted co-conspirators, and confidential informants
is nothing more than a request for a witness list.
Defendants have also requested disclosure of Jencks Act
material 120 days prior to trial. (Braun's Mem. at 18.) The
Government has indicated that it will provide Defendants with a
witness list when it provides Jencks Act material to Defendants
in advance of trial, "in sufficient time for the [D]efendant[s]
to make effective use of it." (Gov.'s Mem. at 141.)
Accordingly, Defendants' request for the names of any indicted
or unindicted aiders, abettors, conspirators or co-conspirators,
for a witness list, and for early disclosure of Jencks Act
material, is DENIED at this time. In light of the anticipated
complexity of the trial, the Government is directed to provide a
witness list no later than 5 days before trial, and to comply
with 18 U.S.C. § 3500 by providing Jencks Act material no later
than five days before the witness is expected to testify. Nothing
in this direction shall be construed to permit late disclosure of
material if there exists an independent basis for earlier
3. Brady and 404(b) Material
Defendants also request immediate or early disclosure of
material pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963) and Fed. R.Evid. 404(b).
Defendants have also made a specific request pursuant to
Brady, seeking information regarding USPS employees who denied
having been offered or having received bribes. The Government has
provided the name of only one individual, and has indicated that
"the names of any such other individuals known to the Government
will be disclosed shortly." (Gov.'s Mem. at 143.) However, as of
the date of Braun's reply, the Government had not disclosed any
other individuals pursuant to Defendants' request. (Braun's Reply
Mem. at 13.) Accordingly, the Government is hereby directed to
disclose, immediately, the names of any USPS employees currently
known to the Government who have denied having been offered or
having received bribes.
The Government proposes to provide 404(b) material two weeks
prior to trial. (Gov.'s Mem. at 134.) The Government also asserts
that it will provide any Brady material "promptly" and
"sufficiently in advance of trial to allow [Defendants] . . . to
use it effectively." (Id. at 141.) The Court notes that
although "Brady does not explicitly prescribe time limits
within which disclosure must happen, the prosecutor is under a
duty to disclose such evidence upon demand." United States v.
Wang, 1999 WL 138930 at *37 (S.D.N.Y. March 15, 1999).
Accordingly, the Court expects that the Government will comply
with all of its Brady obligations as Brady material comes to
light. Material pursuant to Fed. R.Evid. 404(b) shall be provided
to Defendants no later than five days in advance of trial.
4. Additional Discovery Pursuant to Rule 16
Defendants also move for an order, pursuant to Fed.R.Crim.P.
16, granting discovery on numerous issues including, inter
alia, copies of charts and summaries to be used at trial, expert
witness lists, and preservation of rough notes of Government
agents. To the extent that the Government has not yet met its
obligations under Fed.R.Crim.P. 16, it is hereby directed to do
Defendant Grand requests preservation of rough notes of
Government agents, asserting, without any citation to any case
law, that such notes are "absolutely necessary to insure adequate
opportunity for counsel to prepare and present
the defense." (Kalina Affirm. (Rough Notes) ¶ 2.) It is
well-established, however, that Government agents "need not
preserve such notes if the agents incorporate them into formal
reports." United States v. Elusma, 849 F.2d 76, 79 (2d Cir.
1988) (collecting cases). Further, the Government has instructed
its agents to preserve their notes if they are not later
incorporated into formal reports. (Gov.'s Mem. at 147.)
The Government indicates that, at present, it "has no charts or
summaries that it plans to introduce at trial," (Gov.'s Mem. at
135), and that it has not yet determined whether it will offer
any expert testimony at trial. (Id. at 136.) The Government has
further indicated that, in the event charts or summaries will be
used, or expert witnesses will testify at trial, the Government
will disclose such charts or summaries "no less than one week
before trial," (Gov.'s Mem. at 135), and the Government will
disclose expert summaries "no later than two weeks prior to
trial." (Id. at 136.)
In light of these representations, the Court DENIES Defendants'
additional discovery requests at this time. In light of the
anticipated complexity of the case, the Government is DIRECTED to
notify the Defendants forthwith if it determines that expert
testimony or charts or summaries will be used at trial, and to
provide such charts and summaries as soon as is practicable, and
no later than two weeks prior to trial.
For the reasons stated above, Defendants' Motions to Dismiss
are DENIED in their entirety. Defendants' Motions to Suppress all
physical evidence are DENIED in their entirety. Defendants'
Motions for Severance, of Counts and Defendants, are DENIED in
Defendants' Motions for Discovery are DENIED at this time, with
the exception of Defendants' specific Brady request for the names
of any USPS employees currently known to the Government who have
denied having been offered or having received bribes from any of
the Defendants. Disclosure of additional Brady material shall
be made to Defendants as it comes to light.
Defendant Yague's request for a suppression hearing is GRANTED.
A suppression hearing shall be held on August 7, 2000, at 11:30
a.m. A status conference of all Defendants and counsel is hereby
set for August 28, 2000, at 11:00 a.m.
The Court concludes that, pursuant to the Speedy Trial Act,
18 U.S.C. § 3161(h)(8)(A), the interest of justice is served by the
exclusion of time between the date of this Memorandum and Order
and August 28, 2000, and outweighs the best interests of the
Defendants and the public in a speedy trial.