United States District Court, S.D. New York
August 17, 2005.
UNITED STATES OF AMERICA,
KRIS SERGENTAKIS, VINCENT SGAMBELLURI, and DOMINICK SGAMBELLURI, Defendants.
The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
OPINION and ORDER
The indictment was filed on March 2, 2005. It charges the
defendant and two others in three counts. Count One charges each
defendant with participating in a conspiracy to provide
commercial bribes in violation of New York State Penal Law
Sections 180.00, 180.03, 180.05, and 180.08 and to commit mail
fraud and deprive the Leukemia & Lymphoma Society, Inc. ("LLS")
of honest services, from in or about July 2001 through on or
about April 1, 2004 in violation of Title 18, United States Code,
Section 371. Count Two charges the three defendants with use of
the mails to facilitate their commercial bribery scheme in
violation of Title 18, United States Code, Sections 1952(a)(3)(A)
and 2. Count Three charges the three defendants with mail fraud
and depriving LLS of honest services in violation of Title 18,
United States Code, Sections 1341, 1346, and 2.
Mr. Sergentakis seeks an order:
"(1) pursuant to Rule 16 of the Federal Rules of
Criminal Procedure directing the government to supply
counsel with discovery and a Bill of Particulars. (2) pursuant to Rule 12(b)(1) of the Federal Rules of
Criminal Procedure directing the government to
disclose the identity and location of all informants
who actively participated or who were witnesses to
any underlying act or transaction which served as a
basis for the prosecution.
(3) directing the government to provide to counsel,
well in advance of the trial, the names of all expert
witnesses who may be called to testify as well as a
synopsis of any proposed testimony, and all Jencks
(4) pursuant to Brady v. Maryland, 373 U.S. 83
(1963) directing the prosecutor to disclose to the
defendant all evidence favorable to the defendant
which is material either to guilt or punishment
including but not limited to, witness statements
favorable to the defendant, existence of witnesses
favorable to the defendant, specific evidence which
detracts from the credibility or probative value of
testimony or evidence used by the prosecution,
promises of immunity to a government witness, any
co-defendant's statement which exculpates the
defendant, any co-conspirator's statement which
exculpates the defendant and any lack of similar act
evidence on the part of the defendant.
(5) permitting the defense to supplement any and all
motions with additional affidavits, if necessary."
The Government opposes the motion.
The Sergentakis motion in blunderbuss fashion seeks all manner
of discovery including "3500 or Jencks material . . . 60 days
before trial." (¶¶ 22, 38 and 45 defense motion). This is an
overbroad request. 18 U.S.C. § 3500(b) calls for production of Government witness
statements after the witness "has testified on direct
examination." The Government response to the Sergentakis motion,
at p. 9, points out that:
"Consistent with the regular practice in this
District, the Government intends to make Section 3500
material available to the defense at the same time as
impeachment material. Moreover, in order to avoid any
delay in the trial, the Government will produce such
material sufficiently in advance of each Government
This is more than adequate.
As to a Bill of Particulars, it must be pointed out that the
indictment here contains three counts and is supplemented by a
nine paragraph Complaint from Magistrate's Court. The indictment
itself is eight pages long and sets forth the alleged scheme in
great detail in some eleven paragraphs of Count 1. There are five
overt acts alleged with dates for each. The Government has
Complaint filed on November 1, 2004; Indictment filed
on March 2, 2005; Criminal history sheet; E-mail;
Invoice and payment chart; Airfield Graphics checks;
Data Tape Systems Inc. bank records; Deposition of
the defendant; a copy of three audiotapes, and draft
transcripts. (p. 3 Government Memo)
If any of the alleged bribe payments related to a specific
contract, the Government is directed to supply Mr. Sergentakis'
counsel with a copy thereof if it is in writing, to supply counsel with copies of any bills or invoices
relating to any contract and if the contract was oral to identify
any parties thereto. Some of this has apparently already been
supplied but if there are additional documents, they are to be
The Government has stated that "it has a continuing duty to
provide discovery under Fed.R.Crim.P. 16."
There is no need for a Bill of Particulars here.
At paragraph 5 of the motion, the defendant requests "All
evidence of prior or subsequent similar acts which the government
intends to offer at the trial." The motion mistakenly cites
"F.R.C.P. 12(d) (2)." Apparently, what is desired is Federal Rule
of Evidence 403 and 404(b) material. The Government is directed
to supply notice of the intent to offer such evidence two
calendar weeks before trial.
The Court is at a loss to understand how Federal Rule of
Criminal Procedure ("F.R.Cr.P.") 12(b) (1) pertains to the
identity of informants. In any event, the defense is not entitled
to this pre-trial.
If there are any expert witnesses, the Government is directed
to comply with F.R.Cr.P. 12(1) (G) within two weeks of this
order. Any Brady material the Government becomes aware of in the
future relating to the defendant is to be supplied to the defense
immediately. At present, there is no Brady material according
to the Government. (p. 12 Government Brief).
There is no need for the defendant Sergentakis to supplement
his "motions with additional affidavits."
The Sergentakis motion is denied except as to the extent set
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