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United States v. DeGounette

January 30, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JOHN WESLEY DEGOUNETTE, III AND ANDREW BUXTON, DEFENDANTS.



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. William M. Skretny, 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 defendants, John DeGounette, III ("DeGounette") and Andrew Buxton ("Buxton"), are charged in a multi-count indictment with having violated Title 21 U.S.C. §§ 952(a) and 963 and Title 18 U.S.C. §§ 922(g)(3) and 924(c)(1) and (2). (Docket #13). The defendant Buxton has filed an omnibus motion (Docket #16) which has been joined in by the co-defendant DeGounette (Docket #19) wherein the defendants seek: (1) a bill of particulars; (2) "identities of all governmental informants;" (3) production of Rule 16 Fed. R. Crim. P. materials and information; (4) production of "Brady/Giglio" and Jencks materials; (5) "disclosure of evidence pursuant to Rules 404(b), 608 and 609 Federal Rules of Evidence" ("F.R.E."); (6) "preservation of rough notes and other evidence;" (7) "active counsel participation in voir dire;" (8) "pre-trial production of government summaries;" (9) "voir dire [of] government experts outside the presence of the jury;" "disclosure of grand jury transcripts;" (10) exclusion of "post-arrest/post-custody statements made by non-testifying alleged co-conspirator/co-defendant;" (11) exclusion of "any testimonial hearsay that is barred by the Sixth Amendment;" (12) "leave to make other motions."

The government has filed a response to these requests. (Docket #18).

Each one of these requests will be separately addressed herein.

DISCUSSION AND ANALYSIS

1. Demand For A Bill Of Particulars

The defendants claim that a bill of particulars "is necessary to enable defendant[s]: (1) to prepare for trial; (2) to prevent unfair surprise at the time of trial; (3) to preclude successive prosecutions; and (4) to determine whether certain defenses are available." The defendants further assert that the particulars being sought "are also necessary because the charges in the indictment are so general that they do not advise the defendant[s] of the specific acts of which [they are] accused." (Docket #16, pp. 11-12).

In response, the government asserts that "the defendant[s] [have] received extensive and detailed discovery with regard to the Indictment" as set forth in its letter of March 31, 2005 and therefore, since the "Indictment is simple, straight forward," there is no need for a bill of particulars. (Docket #18, pp. 7-8).

The defendants' request is DENIED. It has become axiomatic that the function of a bill of particulars is to apprise a defendant of the essential facts of the crime for which he has been charged. United States v. Salazar, 485 F.2d 1272, 1277-78 (2d Cir. 1973); cert. denied, 415 U.S. 985 (1974); Wong Tai v. United States, 273 U.S. 77 (1927). The charges in the Indictment, along with the discovery materials provided by the government as aforesaid, clearly inform the defendants of the essential facts of the crimes charged. As a result, the defendants are not entitled to, nor are they in need of, the "particulars" being sought for that purpose.

"A bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused." United States v. Feola, 651 F. Supp. 1068, 1132 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (2d Cir.) (mem.), cert. denied, ____ U.S. ____, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989); see also United States v. Leonelli, 428 F. Supp. 880, 882 (S.D.N.Y. 1977). "Whether to grant a bill of particulars rests within the sound discretion of the district court." United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984) (citing United States v. Burgin, 621 F.2d 1352, 1358-59 (5th Cir.), cert. denied, 449 U.S. 1015, 101 S.Ct. 574, 66 L.Ed.2d 474 (1980)); see also Bortnovsky, 820 F.2d at 574. "Acquisition of evidentiary detail is not the function of the bill of particulars." Hemphill v. United States, 392 F.2d 45, 49 (8th Cir.), cert. denied, 393 U.S. 877, 89 S.Ct. 176, 21 L.Ed.2d 149 (1968).

United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990).

2. Defendants' Request For Identities Of All Government Informants

Since counsel for the government represents "that the government did not utilize the services of any confidential informants in the investigation or prosecution of this matter" (Docket #18, pp. 8-9), this request is DENIED on the basis that it is moot.

3. Production Of Rule 16, Fed. R. Crim. P. Materials

The defendant[s] move [ ] to compel discovery of all items or information to which the defendant[s] [are] ...


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