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 ...