United States District Court, S.D. New York
January 3, 2005.
UNITED STATES OF AMERICA,
BRANDON GREEN, Defendant.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Defendant Brandon Green ("Green") has moved for a bill of
particulars pursuant to Rule 7(f), Fed.R.Crim.P., the
immediate disclosure of Brady, Giglio and Jencks Act
material, the identification of any and all unindicted alleged
co-conspirators, a list of all witnesses the government intends
to call for its case-in-chief, and a severance of trial pursuant
to Rules 12(b)(5),*fn1 8(b), and 14, Fed.R.Crim.P. Green
also seeks to join in all other discovery requests made by
co-defendants. The government has opposed Green's motion, which
is denied for the reasons set forth below.
A grand jury returned the indictment in this action on May 6,
2004, charging Green and nineteen co-defendants with conspiring
to distribute and to possess with intent to distribute at least
one kilogram of heroin from 1999 up to and including May 2004, in
violation of 21 U.S.C. § 846.
Green, along with his co-defendants and others, is alleged to
have been a member of a criminal organization in the Bronx that
controlled a three-block strip of Daly Avenue between East 179th Street and Bronx Park South (the "Daly Avenue
Organization" or the "Organization") from at least 1999 through
May 2004. According to the indictment, the Organization sold
heroin all day and late into the night during the period
identified in the indictment, conducting tens of thousands of
hand-to-hand heroin transactions. The Organization is alleged to
have sold individual "glassine" bags of heroin, typically stamped
with so-called brand names such as "Sean John" and "J. Lo."
According to the indictment, some members of the Daly Avenue
Organization acted as "managers," who both sold heroin directly
to retail customers and also provided heroin on consignment to
"workers" or "pitchers" in the Organization. Workers and pitchers
would then sell the heroin to customers, paying the managers for
the heroin as they were able to sell it. Workers and pitchers in
the Organization also acted as "steerers" according to the
indictment, directing customers on Daly Avenue to other workers
or to managers to complete sales of heroin.
Green and his co-defendants are alleged to have committed a
number of overt acts in furtherance of the conspiracy, including
the sale by Green of heroin stamped "J. Lo" in the vicinity of
Daly Avenue in the Bronx on January 22, 2003.
Many of Green's co-defendants were arrested on May 11, 2004.
Green was arrested and arraigned on the underlying indictment on or about June 2, 2004. He filed the instant motion on October
21, 2004. Following further briefing, the motion was initially
set for oral argument on November 17, 2004. After an adjournment,
the motion was taken on submission on December 1, 2004.
Green Is Not Entitled To A Bill Of Particulars
Green has moved pursuant to Rule 7(f), Fed.R.Crim.P., for
production of a bill of particulars by the government. Under Rule
7(f), a district court "may direct the filing of a bill of
particulars." Fed.R.Crim.P. 7(f). Rule 7(f), as the Court of
Appeals for our Circuit has explained, "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 [the] 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." United States v.
Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987); see also
United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990). The
decision to grant or deny a defendant's request for a bill of
particulars rests in the sound discretion of the trial court.
See United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999);
United States v. Barnes, 158 F.3d 662, 656-66 (2d Cir. 1998); United States v. Perez,
940 F. Supp. 540, 550 (S.D.N.Y. 1996).
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
Torres, 901 F.2d at 234; 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 Henry, 861 F. Supp. at 1197;
United States v. Love, 859 F. Supp. 725, 738 (S.D.N.Y.), aff'd
sub nom. United States v. Roberts, 41 F.3d 1501 (2d Cir.
1994). In accordance with this principle of necessity, a bill of
particulars is not required where the information sought has been
made available in alternative forms. See United States v.
Kelly, 91 F. Supp. 2d 580, 583-84 (S.D.N.Y. 2000); United
States v. Ahmad, 992 F. Supp. 682, 684 (S.D.N.Y. 1998); see
also Bortnovsky, 820 F.2d at 574.
An order directing the filing of a bill of particulars will not
be issued simply to "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)) (internal
quotation marks omitted). Nor will a defendant be permitted to
use a request for a bill of particulars to compel the government
to disclose the manner in which it will prove the charges or
preview the government's evidence or legal theory. See United
States v. Ballesteros Gutierrez, 181 F. Supp. 2d 350, 356 (S.D.N.Y.
2002); Perez, 940 F. Supp. at 550; United States v. Facciolo,
753 F. Supp. 449, 451. Simply put, a defendant may not employ a
bill of particulars as a general investigative tool. See
Ballesteros Gutierrez, 181 F. Supp. 2d at 356. The purpose of a
bill of particulars is "to inform the defendant as to the crime
for which he must stand trial, not to compel disclosure of how
much the government can prove and how much it cannot nor to
foreclose the government from using proof it may develop as the
trial approaches." United States v. Malinsky, 19 F.R.D. 426,
428 (S.D.N.Y. 1956).
Green argues that the indictment merely states that Green is
alleged to have sold heroin identical in name to the brand that
the Organization was allegedly selling. According to Green, the
government has provided a large quantity of audiotapes,
documentary evidence and physical evidence, but Green does not
appear on any of the videotapes or in any of the recorded
telephone calls. In view of the "voluminous amount" of discovery
produced (Def. Mem. at 3), and in the absence of the government's
response to particularized demands relating solely to Green's
role in the conspiracy, Green claims that it is all but
impossible for his counsel to evaluate the government's case
adequately and provide effective representation for Green. To the extent that Green seeks a bill of particulars in order
to ascertain or preview the specific evidence possessed by the
government that relates to Green's "limited role in the
conspiracy" (Def. Mem. at 3), a bill of particulars is not
warranted. See, e.g., Ballesteros Gutierrez,
181 F. Supp. 2d at 356; Henry, 861 F. Supp. at 1197. A bill of particulars
is likewise inappropriate, as it has not been shown that the
charges of the indictment are so general that they fail to advise
Green of the specific acts of which he is accused. To the
contrary, the indictment in this action sets forth the nature of
the charge against Green, namely a conspiracy to distribute and
to possess with intent to distribute at least one kilogram of
heroin from 1999 up to and including May 2004. It also identifies
a number of Green's alleged co-conspirators, describes the
alleged conspiracy and the manner in which the conspiracy
functioned, and sets forth more than twenty overt acts
purportedly committed by Green and his co-defendants in
furtherance of the conspiracy, including the names of the
defendant involved in the overt act, the date, the location, and,
in many instances, the approximate amount of heroin involved. In
view of these specific details, it is concluded that the
indictment sufficiently informs Green of the nature of the charge
against him, and Green's motion for a bill of particulars is
denied.*fn2 The Disclosure of Brady, Giglio and Jencks Act Material Is
Unwarranted At This Time
Green seeks the immediate disclosure of exculpatory evidence or
material pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and
of impeachment evidence or material pursuant to Giglio v. United
States, 405 U.S. 150 (1972). Green also seeks the accelerated
production of material under the Jencks Act, 18 U.S.C. § 3500.
Brady and its progeny do not require the immediate disclosure
of all exculpatory material upon a defendant's request. Rather,
as the Court of Appeals for this Circuit has recently stated, the
government's obligation is to disclose Brady material in
sufficient time for the defense to make effective use of it at
trial. See United States v. Coppa, 267 F.3d 132, 144 (2d Cir.
2001). As a trial date has not yet been set in this action, Green's request for the immediate disclosure of Brady material
Moreover, in response to Green's request for Brady material,
the government has made a good faith representation to the Court
and to defense counsel that it recognizes and has complied with
its disclosure obligations under Brady, and will continue to
comply with those obligations. The courts of this Circuit have
repeatedly denied pretrial requests for discovery orders pursuant
to Brady where the government has made such representations.
See, e.g., United States v. Rueb, No. 00 Cr. 91 (RWS), 2001
WL 96177, at *6 (S.D.N.Y. Feb. 5, 2001); Perez,
940 F. Supp. at 553; United States v. Schwimmer, 649 F. Supp. 544, 549
(E.D.N.Y. 1986). Green has suggested no reason to believe that
the government will not comply with its obligations under Brady
and Coppa; accordingly, the Court accepts the government's
representation and Green's request for the immediate disclosure
of Brady material is denied.
Green has also sought the immediate disclosure of Giglio
material, i.e., Brady material of an impeachment nature. See
generally United States v. Bagley, 473 U.S. 667, 676 (1985)
(noting that impeachment evidence "falls within the Brady
rule"). "In the Second Circuit, Giglio materials, like Brady
materials, must be disclosed `in time for [their] effective use
at trial.'" United States v. Giffen, No. 03 Cr. 404 (WHP), 2004
WL 1475499, at *8 (S.D.N.Y. July 2, 2004) (quoting Coppa, 267 F.3d at 142); see
also United States v. Canter, 338 F. Supp.2d 460, 462
(S.D.N.Y. 2004). The immediate disclosure of Giglio materials
merely upon a defendant's request is not required. See Coppa,
267 F.3d at 140. The government has represented to the Court and
to defense counsel that it intends to follow the widely accepted
practice in this district of producing impeachment material when
it provides prior statements of a witness pursuant to
18 U.S.C. § 3500, that is, the Friday before the trial is scheduled to begin,
or further in advance of a witness's testimony if additional time
is reasonably required to review the material. See, e.g.,
Canter, 338 F. Supp. 2d at 462 (noting that "[i]t has been the
practice of this Court and of other courts in this district to
require that the Government produce [impeachment] materials a few
days before the start of trial, usually on the Friday before a
trial scheduled to start on a Monday") (citing United States v.
Santiago, 174 F. Supp. 2d 16, 40-41 (S.D.N.Y. 2001); Perez,
940 F. Supp. at 553). As Green has offered no reason to conclude
that the schedule proposed by the government is unreasonable,
Green's request for the immediate disclosure of Giglio material
is denied and the government is directed to produce such material
to Green's counsel no later than 5:00 p.m. on the Friday prior to
trial in this action, or sufficiently in advance of a witness's
testimony if additional time is reasonably required to review the
material. In view of the representations of the government with regard to
Jencks Act materials, and in the absence of any objection to the
government's representations by Green, Green's request for the
accelerated production of Jencks Act materials is denied and the
government is directed to produce such materials no later than
5:00 p.m. on the Friday prior to the testimony of any witness,
or, with regard to voluminous Jencks Act materials concerning any
particular witness, further in advance of that witness's
The Identification of Unindicted Alleged Co-Conspirators Is
Not Necessary At This Time
Green seeks disclosure of the names and identities of any and
all unindicted alleged co-conspirators. In view of the
government's representation that it does not intend at this time
to present evidence regarding any unindicted co-conspirators, no
relief is granted as to Green's request.
The Government Need Not Produce a Witness List At This Time
Green requests that the government provide a list of the names
and addresses of all individuals it intends to call as witnesses
in its case-in-chief prior to trial. A defendant is not
automatically entitled to such a list prior to trial. See
Fed.R.Crim.P. 16; see also United States v. Bejasa,
904 F.2d 137, 139 (2d Cir. 1990). A district court may compel the
government to provide such a pretrial disclosure of the identity
of the government's witnesses, however, in the exercise of the court's discretion.
See Bejasa, 904 F.2d at 139; United States v. Cannone,
528 F.2d 296, 300-01 (2d Cir. 1975). A request for pretrial
disclosure of the identity of the government's witnesses should
not be granted unless the defendant makes "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.; see also Bejasa 904 F.2d at 139-40. An
"abstract, conclusory claim that such disclosure [is] necessary
to [the] proper preparation for trial" is not sufficient to
warrant a pretrial disclosure by the government. Cannone,
528 F.2d at 301-02.
Green has argued that "Green is specifically identified in only
one overt act of a one count indictment" and that "[t]herefore"
the government should be directed to provide the requested
witness information. (Def. Mem. at 8.) This conclusory argument
offers no basis to conclude that the disclosure required would be
both material to the preparation of Green's defense and
reasonable in light of the circumstances of this case. Moreover,
the government has represented that it has not yet determined all
of the witnesses that would testify against Green and that the
eventual witness list is likely to include both cooperating
defendants and undercover police officers, the disclosure of
whose identities is not practical or appropriate at this time.
Accordingly, Green's request for disclosure of the identities of
the government's witnesses is denied at this time, with leave to
renew if the government has not provided a list of the witnesses it
intends to call in its case-in-chief ten business days prior to
the start of trial.
The Severance Of Trial Is Not Appropriate
Green seeks to have his case severed from that of his
co-defendants pursuant to Rules 8 and 14, Fed.R.Crim.P., on
the grounds that substantial prejudice would result from
proceeding to trial with his co-defendants due to the so-called
Rule 8(b), Fed.R.Crim.P., provides that defendants alleged
to have participated in related criminal conduct may properly be
charged in the same indictment. See Fed.R.Crim.P. 8(b).
Indeed, "`there is a preference in the federal system for joint
trials of defendants who are indicted together.'" United States
v. Salameh, 152 F.3d 88, 115 (2d Cir. 1998) (quoting Zafiro v.
United States, 506 U.S. 534, 537 (1993)); see also United
States v. Miller, 116 F.3d 641, 679 (2d Cir. 1997). This
preference "is particularly strong where, as here, the defendants
are alleged to have participated in a common plan or scheme."
Salameh, 152 F.3d at 115; see also United States v.
Cardascia, 951 F.2d 474, 482 (2d Cir. 1991); United States v.
Turoff, 853 F.2d 1037, 1042 (2d Cir. 1988). As the Court of
Appeals for our Circuit has explained,
It would impair both the efficiency and the fairness
of the criminal justice system to require . . . that
prosecutors bring separate proceedings, presenting the same
evidence again and again, requiring victims and
witnesses to repeat the inconvenience (and sometimes
trauma) of testifying, and randomly favoring the
last-tried defendants who have the advantage of
knowing the prosecution's case beforehand.
Salameh, 152 F.3d at 115 (quoting Richardson v. Marsh,
481 U.S. 200
, 210 (1987)).
A defendant urging severance shoulders the "`extremely
difficult burden'" of showing that he would be so prejudiced by
joinder that he would be denied a constitutionally fair trial.
United States v. Casamento, 887 F.2d 1141, 1149 (2d Cir. 1989)
(quoting United States v. Carpentier, 689 F.2d 21, 27 (2d Cir.
1982)); see also United States v. Rosa, 11 F.3d 315, 341
(2d Cir. 1993); Torres, 901 F.2d at 230. A court "should grant
a motion for severance `only if there is a serious risk that a
joint trial would compromise a specific trial right of the moving
defendant or prevent the jury from making a reliable judgment
about guilt or innocence.'" Miller, 116 F.3d at 679 (quoting
Rosa, 11 F.3d at 341); see also Zafiro, 506 U.S. at 539;
United States v. Aulicino, 44 F.3d 1102, 1116 (2d Cir. 1995).
The decision to sever multi-defendant trials is committed to the
sound discretion of the trial court. See Opper v. United
States, 348 U.S. 84, 95 (1954); Salameh, 152 F.3d at 115.
A showing by a defendant that he may suffer some prejudice, or
may have a better chance for acquittal at a separate trial, is insufficient to warrant severance. See Torres,
901 F.2d at 230 (citing United States v. Burke, 700 F.2d 70, 83 (2d
Cir. 1983)). "Differing levels of culpability and proof are
inevitable in any multi-defendant trial and, standing alone, are
insufficient grounds for separate trials." United States v.
Chang An-Lo, 851 F.2d 547, 557 (2d Cir. 1988) (quoting United
States v. Carson, 702 F.2d 351, 366 (2d Cir. 1983)); see
also United States v. Zackson, 6 F.3d 911, 922 (2d Cir.
1993); United States v. Birkett, No. 99 Cr. 338 (RWS), 1999 WL
689992, at *9 (S.D.N.Y. Sept. 2, 1999) ("[T]he mere fact that one
or more defendants in a narcotics conspiracy played a
comparatively minor role is not a basis for severance.").
Moreover, prejudicial spillover warranting severance is generally
"an unlikely occurrence when all the defendants are charged under
the same conspiracy count." Salameh, 152 F.3d at 115 (citing
United States v. DiNome, 954 F.2d 839, 843-44 (2d Cir. 1992));
see also United States v. Vega, 458 F.2d 1234, 1236 (2d
Cir. 1972) ("Evidence at the joint trial of alleged
co-conspirators that, because of the alleged conspiratorial
nature of the illegal activity, would have been admissible at a
separate trial of the moving defendant is neither spillover nor
prejudicial."); accord Rosa, 11 F.3d at 341.
Green has failed to establish an adequate basis to justify
severance here. The entire case revolves around the hand-to-hand
sales of heroin in a small area of the Bronx, New York, and
Green's role in the offense is not significantly more minor than that of any other defendant. Green has not established sufficient
prejudice that would result from a joint trial, whether from a
spillover effect or otherwise, his motion for severance is
Green's Request To Join Other Discovery Requests Is Denied As
Green seeks to join in all other discovery requests made by
co-defendants. As no such discovery requests are presently before
this Court, the request is denied as moot, with leave granted to
For the reasons set forth above and upon the conditions stated,
Green's motion and his various requests are denied.
It is so ordered.