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U.S. v. MINAYA

October 12, 2005.

UNITED STATES OF AMERICA,
v.
FRANKLIN MINAYA, ALBERTO CASTELLANO, SILVIO GUERRERO, LEONARDO PINA, REYNALDO PINA, PEDRO MORETA, JULIO CESAR RODRIGUEZ, ANGEL OLIVERIA, LUIS GOMEZ, BERNABE MARTINEZ, HARIS JAVIER, Defendants.



The opinion of the court was delivered by: VICTOR MARRERO, District Judge

DECISION AND ORDER

Four of the eleven defendants in this case have filed motions in anticipation of the trial of this action. Defendants Franklin Minaya ("Minaya"), Luis Gomez ("Gomez"), Haris Javier ("Javier"), and/or Bernabe Martinez ("Martinez") (together, the "Defendants") seek various forms of discovery, bills of particulars, severance, a hearing regarding the propriety of methods used to identify them as perpetrators of the alleged crimes, permission to join any and all motions made by co-defendants which are applicable and are not inconsistent with their own motions, and permission to make further motions as counsel may deem appropriate in the future.*fn1 For the reasons stated below, with the exception of the requests for permission to join in one another's motions and to make further motions and one component of Javier's request for a bill of particulars, all of these requests are denied.

I. BACKGROUND

  Minaya, Gomez, Javier, and Martinez were indicted along with seven other defendants on December 14, 2004. They are charged with participating in a racketeering enterprise known as the Freeman Street Robbery Organization (the "Organization"). The Organization allegedly perpetrated gunpoint home invasion robberies and related firearms and narcotics offenses from approximately 1996 through approximately 2001. Minaya and Gomez are also charged with homicide.

  II. DISCUSSION

  A. MOTIONS FOR DISCOVERY AND BILLS OF PARTICULARS

  The Defendants' motions for discovery and for bills of particulars are procedurally barred due to the Defendants' failure to comply with Local Criminal Rule 16.1 ("Local Rule 16.1"). Local Rule 16.1 provides that
[n]o motion addressed to a bill of particulars or answers or to discovery and inspection shall be heard unless counsel for the moving party files with the court simultaneously with the filing of the moving papers an affidavit certifying that said counsel has conferred with counsel for the opposing party in an effort in good faith to resolve by agreement the issues raised by the motion without the intervention of the court and has been unable to reach such an agreement.
Local Crim. R. 16.1.

  None of the Defendants has filed such an affidavit, nor is there any evidence before the Court that counsel for the Defendants have conferred with the Government or attempted to resolve the issues raised in the pending motions without the intervention of the Court.*fn2 This failure constitutes a sufficient basis on which to deny the Defendants' motions for discovery and bills of particulars. See, e.g., United States v. Ahmad, 992 F. Supp. 682, 684 (S.D.N.Y. 1998).

  Even if the Defendants had complied with Local Rule 16.1, the Court would deny their motions on the merits.

  1. Discovery Requests

  The instant motions seeking disclosure of Brady material, Giglio material, ยง 3500 material, material that the Government may seek to introduce under Federal Rule of Evidence 404(b) ("Rule 404(b)"), and a list of witnesses are denied for reasons set forth by the Court in its recent Decision and Order in United States v. Dames, 380 F. Supp. 2d 270, 272-73, 277 (S.D.N.Y. 2005).*fn3 As the Court stated in Dames, should any of the Defendants become aware of a specific failure on the Government's part to comply with its Brady obligations, he may renew his motion at that time.

  Javier, in addition to requesting disclosure of evidence the Government intends to introduce at trial pursuant to Rule 404(b), argues that any such evidence that the Government does seek to introduce should be excluded. Given that the Government has not yet attempted to introduce any evidence under Rule 404(b), Javier's motion is far premature and is therefore denied. The Defendants' requests that the identity of confidential informants be disclosed are also denied. "It has consistently been held that an informant's identity need not be disclosed unless `essential to the defense.'" United States v. Russotti, 746 F.2d 945, 949-950 (2d Cir. 1984) (quoting Scher v. United States, 305 U.S. 251, 254 (1938)). "The defendant bears the burden of establishing that such disclosure [of a government informant's identity) is `relevant and helpful to the defense of the accused, or is essential to a fair determination' of the defendant's case." United States v. Polanco, No. 97 Cr. 106, 1997 WL 452389, at *4 (S.D.N.Y. Aug. 8, 1977) (quoting Roviaro v. United States, 353 U.S. 53, 60-61 (1957)). The Defendants have not offered any argument specific to the facts of their cases to sustain that burden.

  Gomez argues that this burden does not apply in his case. He "suggests that the informant used by the government in this matter was a direct participant in the alleged criminal enterprise." (Gomez Mem. at 12.) The Second Circuit has found that a "defendant is generally able to establish a right to disclosure [of the identity of a confidential informant] `where the informant is a key witness or participant in the crime charged, someone whose testimony would be significant in determining guilt or innocence.'" United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988) (quoting United States v. Russotti, 746 F.2d 945, 950 (2d Cir. 1984)) (further citations omitted). Nevertheless, the Court of Appeals further stated in Saa that "it is not sufficient to show that the informant was a participant in and witness to the crime charged." Id. Rather, if a defendant fails to show that "the testimony of the informant `would . . . [be] of even marginal value to the defendant's case,'" the trial court is not required to order disclosure of the informant's identity. Id. (quoting United States v. Jimenez, 789 F.2d 167, 170 (2d Cir. 1986)). Because Gomez has not squarely claimed, let alone demonstrated, that any confidential informant in this case was also a participant in or witness to the alleged crimes, nor offered any argument as to how any informant's testimony would be of value to Gomez's defense, the Court denies his request for discovery in this regard. See United States v. Jimenez, 824 F. Supp. 351, 365 (S.D.N.Y. 1993) ("`Mere speculation . . . that the informant may possibly be of some assistance does not overcome the strong public interest in protecting informants.'") (quoting United States v. Martinez, 634 F. Supp. 1144, 1150 (S.D.N.Y. 1986)).

  With respect to the Defendants' requests for discovery pursuant to Rule 16, the record before the Court provides no basis on which to conclude that the Government is not in compliance with its obligations. The Government has represented that it has fully complied with those obligations and will continue to do so. Again, in the absence of any compelling demonstration to the contrary by any of the Defendants, the Court denies their requests to compel additional Rule 16 discovery at this time.

  Should any of the Defendants become aware in the future of any specific failure by the Government to comply with its disclosure obligations, and find that it is not possible to resolve the matter without the assistance of the Court after having made good faith efforts to do so as required by Local Rule 16.1, he may renew his motion to compel disclosure at that time.

  2. Bills of Particulars

  As the Court noted in Dames, "[t]he decision of whether to grant a bill of particulars rests within the sound discretion of the Court. In exercising its discretion to grant a bill of particulars or not, the Court must evaluate the charges contained in the indictment and the state of discovery." Dames, 380 F. Supp. at 273 (citing United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990); United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984)).

  The Second Circuit has explained that
[t]he principles governing requests for a bill of particulars are well settled. A bill is appropriate to permit a defendant "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.". . . These principles must be applied with some care when the Government charges criminal offenses under statutes as broad as RICO. With the wide latitude accorded the prosecution to frame a charge that a defendant has "conspired" to promote the affairs of an "enterprise" through a "pattern of racketeering activity" comes an obligation to particularize the nature of the charge to a degree that might not be necessary in the prosecution of crimes of more limited scope.
United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988) (quoting United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987)). Notwithstanding this heightened standard for RICO cases, the Court finds that the Indictment in this action is sufficiently particular in most respects.
  Javier makes the following eight requests for additional information:
i. the exact times dates and locations when and with whom [sic] the defendant conspired to engage in racketeering in furtherance of the alleged criminal activities of the Freeman Street Robbery Organization;
ii. whether with regard to Counts One and Two the defendant is being charged as a principal or and [sic] aider and abetter;
iii. the names of all conspirators and aiders and abetters not named in the indictment;
iv. any overt acts not enumerated in the indictment concerning which acts the government intends to offer evidence against this defendant at trial;
v. the exact date when, the place where, with whom and in what manner the defendant initially entered into the conspiracy and the duration of his participation;
vi. state the objects of the conspiracy and when the defendant learned of its purposes;
vii. state what this defendant did to further the objects of the conspiracy;
viii. ...

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