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United States v. Kurtz

January 12, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
STEVEN KURTZ, DEFENDANT.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

This case was referred to the undersigned by the Hon. John T. Elfvin, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions.

PRELIMINARY STATEMENT

The defendant, Steven Kurtz ("the defendant"), has been indicted with a co-defendant, Robert Ferrell*fn1 , in a multi-count indictment with having violated Title 18 U.S.C. § 1341 - Mail Fraud (Counts 1 and 2) and § 1343 - Wire Fraud (Counts 3 and 4). (Docket #1). He has filed an omnibus motion (Docket #19) wherein he seeks: (1) "an order striking a portion of the indictment as prejudicial and misleading;" (2) a bill of particulars; (3) "discovery pursuant to Rule 16 and notice of intention pursuant to 'Rule 12(d)'" (sic)*fn2 ; (4) disclosure of Brady material; (5) "revelation of identity of informants;" (6) "disclosure of evidence proffered under Rule 404(b) and the exclusion of any such evidence found to be inadmissible;" (7) "search of personnel files of government agent witnesses;" (8) "preservation of evidence;" and (9) "disclosure of Rule 807 'residual exception' statements." The defendant also requests permission to file "further motions."

The government has responded to each of these requests. (Docket #30).

Each one of these requests will be addressed separately herein.

DISCUSSION AND ANALYSIS

1. Defendant's Motion To Strike "Surplusage" In The Indictment

The defendant seeks to have ¶ 23 of the Indictment (Docket #1) stricken claiming that the contents therein are "surplusage" of an "inflammatory and prejudicial" nature and are "irrelevant" to the crimes charged." (Docket #19, ¶¶ 166, 168).

In response, the government asserts that "the challenged paragraph consists of an electronic message created and sent by defendant Kurtz to defendant Ferrell, and is directly relevant and admissible as to Counts 1 and 2 of the Indictment, which alleges, in essence, that Kurtz illegally received from defendant Ferrell the biological organism serratia marcens (sic). The message will enable the jury to perceive the familial (sic) relationship between the parties ('High Bob;' Best, Steve'), and the willing complicity of both in the acquisition of the bacteria." (Docket #30, p. 56).

Rule 7(d) of the Federal Rules of Criminal Procedure ("Fed. R. Crim. P.") states as follows:

Surplusage. Upon the defendant's motion, the court may strike surplusage from the indictment or information.

In addressing the application of that provision, the Court of Appeals for the Second Circuit has expressly stated:

Motions to strike surplusage from an indictment will be granted only where the challenged allegations are "not relevant to the crime charged and are inflammatory and prejudicial." United States v. Napolitano, 552 F.Supp. 465, 480 (S.D.N.Y. 1982) (citing authorities). "[I]f evidence of the allegation is admissible and relevant to the charge, then regardless of how prejudicial the language is, it may not be stricken." United States v. DePalma, 461 F.Supp. 778, 797 (S.D.N.Y. 1978). In RICO cases, courts have refused to strike allegations of organized crime connections that "serve to identify the 'enterprise' and the means by which its members and associates conduct various criminal activities." Napolitano, 552 F.Supp. at 480; see also United States v. Rastelli, 653 F.Supp. 1034, 1055 (E.D.N.Y. 1986); United States v. Santoro, 647 F.Supp. 153, 176-77 (E.D.N.Y. 1986), aff'd mem., 880 F.2d 1319 (2d Cir. 1989).

United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir. 1990).

For purposes of this motion, this Court is satisfied that the allegations set forth in ΒΆ 23 of the Indictment (Docket #1) are relevant to the crimes charged in Counts 1 and 2 of the Indictment in that they tend to establish a relationship between the defendant and co-defendant Ferrell that was utilized in providing a means for the defendant to obtain biological materials which he could not obtain on his own application. ...


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