The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Defendant Mohamed Subeh ("Subeh") is charged in a three-count Indictment with making materially false, fictitious and fraudulent statements to a Special Agent of the Federal Bureau of Investigation ("FBI") in violation of 18 U.S.C. § 1001(a)(2). Specifically, the Indictment alleges that on May 23, 2003, Subeh made three false statements to FBI Special Agent Joseph Testani and/or other investigators regarding Subeh's brother Ismail Dorgham. The Indictment charges generally that in an effort to conceal his brother's intentions of becoming a suicide bomber in Israel, Subeh lied about his brother's reasons for wanting to leave the United States.
On July 21, 2004, the defendant filed an omnibus motion seeking, inter alia, suppression of statements and evidence, dismissal of the Indictment, production of a bill of particulars, and disclosure of Grand Jury minutes.
By Order dated April 30, 2004, this case was referred to Magistrate Judge Marian W. Payson for pretrial proceedings. Pursuant to that Order, Judge Payson held a hearing over the course of six days on defendant's motions. On January 24, 2006, Judge Payson issued a Decision and Order and Report and Recommendation recommending, inter alia, that defendant's motion to dismiss Counts One and Two of the Indictment be denied, but that defendant's motion to dismiss Count Three of the Indictment be granted. Judge Payson also granted defendant's motion for a bill of particulars, and pursuant to that Order, directed the government to disclose whether or not the false statements made by Subeh were made in response to direct questions by the interviewing agents, and if so, what the questions were. See January 24, 2006 Decision and Order at p. 52.
By Objection filed April 13, 2006, the Government objects to (1) Judge Payson's Report and Recommendation that Count Three of the Indictment be dismissed, and (2) Judge Payson's Order granting defendant's request for a bill of particulars. With respect to the Report and Recommendation, the Government contends that Judge Payson improperly concluded that dismissal of Count Three was warranted on grounds that the statement at issue could not be proven false. The Government argues that it can prove that Subeh's statement was false, and therefore it should be allowed to present its case to the Jury as alleged in Count Three.
With respect to Judge Payson's Order granting defendant's request for a bill of particulars which directs the Government to indicate whether or not Subeh's allegedly false answers were given in response to direct questions, and if so, what those questions were, the Government objects on grounds that the defendant failed to adequately articulate a justifiable need for the information sought. The Government also contends that it is impossible to provide the information sought, and that because the Magistrate acknowledged that the Indictment sufficiently and adequately apprised the defendant of the charges against him, there is no basis for granting the request for a bill of particulars.
For the reasons set forth below, I affirm and adopt Judge Payson's Report and Recommendation and Decision and Order in its entirety, and grant defendant's motion to dismiss Count Three defendant's request for a bill of particulars.
Pursuant to 28 U.S.C. § 636(b)(1), after the filing of a Report and Recommendation, any party may serve and file written objections to such proposed findings and recommendations. After such filing,
[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed finding or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.
A district court, however, may not reject the credibility findings of a Magistrate Judge without conducting an evidentiary hearing in which the district court has the opportunity to observe and evaluate witness credibility in the first instance. Cullen v. United States, 194 F.3d 401 (2nd Cir. 1999).
Objections to Orders of the Magistrate are governed by 28 U.S.C. § 636(b)(1)(A), which provides in relevant part that Orders relating to pretrial matters which are clearly erroneous or contrary ...