Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. v. GREEN

January 3, 2005.

UNITED STATES OF AMERICA,
v.
BRANDON GREEN, Defendant.



The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

OPINION

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.

Prior Proceedings

  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.

  Discussion

  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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.