The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
This case was referred to the undersigned by the Hon. Richard J. Arcara on March 14, 2006 for all pretrial matters. The matter is presently before the court Defendants' motions seeking discovery and a Bill of Particulars, an audibility hearing, and severance (Doc. Nos. 15, 16).
Defendants Michael Ray Jackson ("Jackson") and Randall Parker ("Parker") were initially indicted in a seven count indictment on July 7, 2005, charging violations of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 841(b)(1)(C) and 21 U.S.C. § 846. (Doc. No. 1). Specifically, Jackson and Parker are together charged in Count 1 of the Indictment with conspiracy to possess with intent to distribute, 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841 (b)(1)(B) and 21 U.S.C. § 846. ("Count 1" or "the Conspiracy Count"). Jackson is alone charged with knowingly, intentionally, and unlawfully possessing with intent to distribute a quantity of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) on or about December 1, 2004 ("Count 2"), January 14, 2005 ("Count 3"), and April 15, 2005 ("Count 6"). Parker is alone charged with knowingly, intentionally and unlawfully possessing with intent to distribute a quantity of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) on or about January 28, 2005 ("Count 4"), February 8, 2005 ("Count 5"), and June 3, 2005 ("Count 7").
In support of their respective motions, Parker filed the Affirmation of J. Glenn Davis, Esq. (Doc. No. 15) ("Davis Affirmation") on February 10, 2006, and Jackson filed the Affirmation of Thomas J. Eoannou, Esq. (Doc. No. 16) ("Eoannou Affirmation") on February 12, 2006.*fn2 ("Defendants' Motions"). The Government filed its response to Defendants' Motions on March 8, 2006 (Doc. No. 18) ("Government's Response"). Defendant Jackson filed a Reply to the Government's Response on March 12, 2006 (Doc. No. 20) ("Jackson Reply Memorandum"), and oral argument was held on March 16, 2006 (Doc. No. 22). On March 27, 2006, the Government filed the Government's Surreply to Defendant's Reply Memorandum (Doc. No. 24) ("Government's Surreply").
Defendants' Motions also seek to join in the motions made by co-defendants, leave to file additional motions, disclosure of Brady, Giglio and Jencks Act material, a Bill of Particulars, discovery pursuant to Fed.R.Crim.P. 16 ("Rule 16"), disclosure of informant information, severance,an audibility hearing, and disclosure of evidence pursuant to Fed. R. Evid. 404(b), 608 and 609.*fn3 The Government has requested reciprocal recovery.
In their motion papers, and at oral argument, Defendants requested the Government to disclose, or that they be permitted to inspect, evidence subject to disclosure under Fed.R.Crim.P. 16. These requests include Parker's request in his motion papers for (1) written or recorded statements provided by Parker before and/or after arrest; (2) records which reference oral statements made by Parker; (3) a copy of Parker's prior criminal record and/or prior similar bad acts committed by Parker which the Government intends to use at trial pursuant to Federal Rule of Evidence 404(b) ("Rule 404(b)"); (4) documents and tangible objects that are material to the defense or which will be introduced at trial; (5) examinations and tests conducted pursuant to the investigation; (6) the results of physical and/or mental examinations material to the defense or which will be used at trial; (7) a written summary of testimony the Government will introduce at trial pursuant to Federal Rules of Evidence 702, 703 or 705 ("Rule 702," "Rule 703," Rule 705"); (8) copies of all photographs and/or video recordings that pertain to this case which the Government will introduce at trial; (9) the names and identities of all expert witnesses the Government will call at trial, as well as "their qualifications, subject of testimony, and reports;" (10) notice of the Government's intent to use evidence discoverable under Rule 16, pursuant to Federal Rule of Evidence 12(b)(4)(B) ("Rule 12(b)(4)(B)").
The Government responds that it has fully complied with its obligations under Rule 16 and, acknowledging that this obligation is ongoing, represents it will continue to provide Defendants with new Rule 16 material/information as it arises. Government Response at 37-38. Specifically, the Government represents it will forward Defendants the identity, background, and of summaries of testimony of expert witnesses, and states a forensic chemist will be called to testify about cocaine and its characteristics, as well as a law enforcement witness to testify about the methods, language, packaging, techniques and dealings commonly used by drug distributors for distribution and possession of narcotics. Government Response at 38. Finally, pursuant to Rule 12(b)(4), the Government states it shall use all evidence in its possession which is within the scope of Rule 12(b)(4), including, but not limited to (1) evidence recovered from search and seizure of all Defendants' residences; (2) phone intercepts and their accompanying transcripts; (3) evidence recovered from Defendants during their arrests; (4) Defendants' statements; and (5) all other evidence obtained during the course of the investigation. Id.
At oral argument, the court directed all counsel to address any remaining issues pursuant to Rule 16 not previously resolved at a prior court proceeding, or as a result of the extensive discovery voluntarily provided by the Government. Defendant Jackson requested the Government to supply the identity of undisclosed informants as to Jackson. The Government replied it would supply the identity of the informants two to three weeks prior to trial. Accordingly, Defendant's motion is DISMISSED as moot. All other Rule 16 issues raised in Defendant Parker's motion, but not resolved by the court at oral argument, are deemed moot, and DISMISSED as such.
Based on the following, Defendants' remaining motions are GRANTED, in part, DENIED, in part, and DISMISSED as moot, in part. The Government's motion for reciprocal recovery is GRANTED.
1. Request for Bill of Particulars
Defendants request, pursuant to Fed. R. Crim. P. 7(f) ("Rule 7(f)"), a Bill of Particulars seeking details as to their alleged violations of 21 U.S.C. §§ 841 and 846 in connection with the Conspiracy Count and Counts 2, 3, and 6 of the Indictment. Eoannou Affirmation ¶¶ 4-5(p); Davis Affirmation ¶¶ 12-13. Specifically, Jackson and Parker seek disclosure of all known but unnamed co-conspirators and the names of all persons involved in the conspiracy. Eoannou Affirmation ¶ 5; Davis Affirmation ¶ 12. As to the Conspiracy Count, Defendant Jackson seeks additional particularization as to the date Jackson joined the conspiracy; the nature of the agreements Jackson had with others in furtherance of the conspiracy; whether Jackson's knowledge of the possession and distribution was actual or constructive; and the location where all acts were committed by Jackson or any co-conspirator in furtherance of the conspiracy. Eoannou Affirmation ¶ 5. Similarly, Defendant Parker proffers particularization requests relative to the Conspiracy Count which include identifying "unknown" persons, their function in the conspiracy and their relationship with other co-conspirators; the time and manner which Parker joined the conspiracy; Parker's alleged acts committed in furtherance of the conspiracy; how and when Parker left the conspiracy; and the quantities of cocaine allegedly involved in the conspiracy. Davis Affirmation ¶ 12.
Defendant Jackson alone requests particularization regarding Counts 2, 3, and 6 of the Indictment. Specifically, Jackson requests particulars as to the quantity of cocaine allegedly possessed by Jackson on December 1, 2004 (Count 2), January 14, 2005 (Count 3), and April 15, 2005 (Count 6), as well as the location where these instances occurred and whether possession on the identified dates was actual or constructive. Eoannou Affirmation ¶ 5 (h-p).
Under Rule 7(f), a court may direct the filing of a Bill of Particulars as justice requires. Fed.R.Civ.P. 7(f). A defendant may seek particularization to identify with sufficient particularity the nature of the charges against him, thereby enabling the defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy if he should be prosecuted a second time for the same offense. Wong Tai v. United States, 273 U.S. 77 (1927); United States v. Bortnovsky, 820 F.2d 572 (2d Cir. 1987); United States v. Taylor, 707 F.Supp. 696 (S.D.N.Y. 1989). The decision as to whether to direct further particularization is within the discretion of the court. United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984).
The test as to whether to order particularization is "whether the information sought is necessary, not whether it is useful." United States v. Matos-Peralata, 691 F.Supp. 780, 791 (S.D.N.Y. 1988), aff'd sub nom. United States v. Benitez, 920 F.2d 1080 (2d Cir. 1990). The court will not order particularization where the government has provided the information requested either "in the indictment or some acceptable alternative form." Bortnovsky, supra, at 574; United States v. Feola, 651 F.Supp. 1068, 1133 (S.D.N.Y. 1987), (whether the information sought has been provided elsewhere, such as in other items provided by discovery, responses made to unobjected requests for particulars, prior proceedings, and the indictment itself may be considered in deciding whether to order particularization), aff'd, 875 F.2d 857 (2d Cir. 1989), cert. denied sub nom. Marin v. United States, 493 U.S. 834 (1989). A Bill of Particulars should only be required "where the charges in the indictment are so general that they do not advise the defendant of the specific acts of which he is accused." Feola, supra, at 1132. Further, "[a]cquisition of evidentiary detail is not the function of the bill of particulars." United States v. Torres, 901 F.2d 205, 234 (2d Cir.)(denying request for Bill of Particulars identifying unindicted alleged co-conspirators referred to in indictment as 'known and unknown' on the basis that such information was unnecessary to advise defendants of the specific acts of which they were accused), cert. denied sub nom. Cruz v. United States, 498 U.S. 906 (1990) .
An indictment need not allege an overt act in furtherance of the conspiracy if the indictment alleges a conspiracy to distribute narcotics, and further alleges the time in which the conspiracy was operative and the statute that was allegedly violated. United States v. Hendrickson, 26 F.3d 321, 337, n. 9 (2d Cir. 1994) (citing United States v. Bermudez, 526 F.2d 89, 94 (2d Cir. 1975)), appeal after remand, 104 F.3d 349 (2d Cir. 1996), cert. denied sub nom. Hendrickson v. United States, 520 U.S. 1129 (1997); United States v. Delvecchio, 816 F.2d 859, 864 (2d Cir. 1987); United States v. Macklin, 1988 WL 118471 * 1 (W.D.N.Y. 1988). A defendant does not "need" detailed evidence about the conspiracy in order to prepare for trial. Feola, supra, at 1132. Additionally, as the government can prove the existence of a conspiracy through circumstantial evidence, a Bill of Particulars comprised of very specific details is not required for a drug trafficking conspiracy charge. Taylor, supra, at 699.
A fair reading of the Indictment as a whole provides sufficient detail of the substance of the charges against Defendants regarding the dates and locale of the alleged conduct. As such, the Indictment sufficiently informs Parker and Jackson of the nature of the charges against them to permit adequate trial ...