The opinion of the court was delivered by: Garaufis, District Judge.
Defendant Ronell Wilson ("Defendant" or "Wilson") is charged in a twenty-three count indictment with, inter alia, murdering undercover New York Police Department ("NYPD") Detectives Rodney Andrews and James Nemorin on March 10, 2003.*fn1 Specifically, in connection with his alleged membership in the street gang known as the "Stapleton Crew," the criminal enterprise alleged in the Indictment, Wilson is charged with the following: engaging in and conspiring to engage in a pattern of racketeering activity; committing obstruction of justice murder, murder in aid of racketeering, carjacking; use of a firearm and causing death through the use of a firearm; robbery and robbery conspiracy; narcotics distribution and narcotics conspiracy; use of a firearm in connection with narcotics trafficking; conspiring to murder rival gang members; and conspiring to murder "John Doe."*fn2
Based upon the seven potential capital counts charged in the Indictment, the Government filed a Notice of Intent to Seek the Death Penalty against Wilson on August 2, 2005. Jury selection in the Defendant's death penalty trial is scheduled to begin the week of September 11, 2006.
Currently pending before the court are a number of substantive and death penalty-related pre-trial motions submitted by the Defendant. The Defendant moves to suppress certain post-arrest statements and pieces of evidence seized from the Defendant on May 2, 2002 and March 12, 2003, and to suppress identifications of the Defendant by Government witnesses. The Defendant also moves to strike certain language from the Indictment and for a bill of particulars with respect to the charges in the Indictment and the aggravating circumstances alleged in the Notice of Intent to Seek the Death Penalty (hereinafter "NOI"). In his death-penalty related motions, the Defendant moves for a declaration that the Federal Death Penalty Act of 1994 ("FDPA") is unconstitutional and to dismiss the Government's NOI. Alternatively, the Defendant requests dismissal of certain aggravating factors from the Government's Notice of Special Findings ("NOSF") and NOI. Oral argument on the motions was held before this court on June 16, 2006.
I will address each motion in turn below. As the Defendant filed each motion separately and the Government replied in an "Omnibus Response in Opposition to the Defendant's Substantive and Death Penalty Related Motions" (hereinafter "Govt. Resp."), I will address the motions in the order in which the Government responded in its responsive brief.
For the reasons set forth below, the Defendant's motions are granted in part and denied in part.
I. Defendant's Motion for a Bill of Particulars
The Defendant moves for a bill of particulars on the grounds that Wilson has been charged with "extremely serious and far-ranging offenses" implicating four co-defendants and others, which include murder and murder conspiracy charges "intertwined with [ ] expansive racketeering and drug charges." (Defendant's Memorandum of Law in Support of Pretrial Motion for a Bill of Particulars and to Strike Language in the Indictment ("Def.'s Mem. Supp. BOP"), at 4). Conceding that the Government has turned over "numerous documents in discovery" that Defense counsel has reviewed, the Defendant claims that his alleged position in the charged racketeering enterprise is unspecified and that the discovery provided "does not provide essential particulars about the charges." (Id.).
The Government responds to the Defendant's motion by asserting that a bill of particulars is unnecessary in this case because the Indictment "explains in detail" the crimes for which the Defendant is charged, and because the Defendant has been provided "extensive pretrial discovery," which in combination have "sufficiently apprised" the Defendant of the charges against him. (Govt. Resp. at 6). The Government contends that, "in the face of the precisely drawn Indictment and copious discovery, it is clear that the [D]efendant is seeking a bill of particulars as a general investigative tool." (Id.at 7). In its brief, the Government addresses each of the Defendant's requests and explains the manner in which the Indictment and turned-over discovery adequately apprise the Defendant of the nature of the charges and aggravating factors it intends to prove at trial, obviating the need for a bill of particulars under controlling precedent. (See Govt. Resp. at 7-17). I will discuss each below.
Rule 7(f) of the Federal Rules of Criminal Procedure permits a defendant to seek a bill of particulars in order to enable him "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." United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). The decision whether to order the filing of a bill of particulars is one that rests within the sound discretion of the district court. United States v. Barnes, 158 F.3d 662, 665-66 (2d Cir. 1998); United States v. Urso, 369 F.Supp.2d 254, 271 (E.D.N.Y. 2005) (Garaufis, J.). A bill of particulars is warranted "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. Walsh, 194 F.3d 37, 47 (2d Cir. 1999) (quoting United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990) (internal quotation marks omitted)).
Judges of this district have characterized the test as one of necessity: "Where 'facts supplemental to those contained in the indictment . . . are necessary to apprise the defendant of the charges against him with sufficient precision,' a bill of particulars is appropriate." United States v. Weinberg, 656 F.Supp. 1020, 1029 (E.D.N.Y. 1987) (McLaughlin, J.) (overruled on a different point) (internal citation omitted) (citing United States v. Persico, 621 F.Supp. 842, 868 (S.D.N.Y. 1985)). Thus, the "ultimate test" in determining whether a bill of particulars is appropriate is "whether the information is necessary, not whether it is helpful to the defendant." Weinberg, 656 F. Supp. at 1029 (citations omitted). A bill of particulars is not a discovery device and is not meant to force the government to disclose its evidence or its legal theory. See United States v. Gottlieb, 493 F.2d 987, 994 (2d Cir. 1974); United States v. Hotte, No. 97 CR 0669, 1997 WL 694718, at *3 (E.D.N.Y. Nov. 6, 1997) (Johnson, J.). Moreover, the Second Circuit has instructed that a bill of particulars should not be granted where the Government has made sufficient disclosures concerning its evidence and witnesses by means other than the indictment. Walsh, 194 F.3d at 47.
With these principles in mind, I will now consider the Defendant's requests. I note, however, at the outset that although the aforementioned general principles and precedent cited by both parties guide my analysis, they provide no clear-cut answer on whether a bill of particulars is necessary in this specific case. As Judge Sand of the Southern District of New York has explained:
The line that distinguishes one defendant's request to be apprised of necessary specifics about the charges against him from another's request for evidentiary detail is one that is quite difficult to draw. . . . It is not surprising, therefore, that more than one court has observed that the precedents furnish little help in disposing of requests for bills of particulars in criminal cases.
United States v. Bin Laden, 92 F. Supp. 2d 225, 234 (S.D.N.Y. 2000) (internal quotation and citations omitted). Thus, I am mindful of the precedent of this Circuit and of my responsibility to analyze specifically the facts and circumstances of this case. I will now discuss each of the Defendant's requests.
A. Racketeering Related Charges
The Defendant's first set of requests pertain to the Racketeering and Racketeering Conspiracy charges: Count 1 (Racketeering), Count 2 (Racketeering Conspiracy), Counts 5 and 6 (Murder in Aid of Racketeering), and Counts 26 and 28 (Conspiracy to Murder in Aid of Racketeering).*fn3 Defendant's first request is for a description of how the Defendant and his four co-defendants functioned as an enterprise separate from the commission of the charged predicate acts alleged to constitute a pattern of racketeering. (Def.'s Mem. Supp. BOP at 6). The Government correctly argues that a bill is not warranted as to the enterprise allegation. Paragraphs 3 and 4 of the Indictment outline the manner in which the Stapleton Crew is alleged to have functioned as an enterprise under the RICO statute, stating that the gang was involved in a number of criminal activities and the various means and methods used in furtherance of the enterprise's conduct. (Indictment ¶¶ 3, 4).
I am unpersuaded by the precedent of United States v. Bailey, 689 F.Supp. 1463 (N.D. Ill. 1987), to which the Defendant cites. In Bailey, the Illinois district court held that a bill of particulars was appropriate on the allegation of the enterprise's existence in a RICO charge where the indictment described the enterprise as follows: "a union or group of individuals associated in fact for the purpose of defrauding and obtaining money and property from various insurance companies by means of staging fake automobile accidents and subsequently submitting fraudulent personal injury claims, medical bills and wage losses to such insurance companies." Bailey, 689 F.Supp. at 1473. To understand the import of Bailey, it is useful to compare it with a subsequent case out of the same district, United States v. Wolf, No. 92 CR 737, 1993 WL 169271 (N.D. Ill. May 18, 1993), which provides as much support for the opposite outcome. In Wolf, the indictment alleged as follows: "This enterprise was involved in the real estate business, including investing in, repairing, and managing real estate. In connection with its real estate business, this enterprise employed people and purchased goods and services, including employing tradespeople and purchasing materials to repair and maintain real estate, purchasing insurance and employing an inspector." Wolf, 1993 WL 169271, *12 (N.D.Ill.) (N.D.Ill.,1993). The Wolf court distinguished Bailey, explaining that "[u]nlike the indictment in Bailey, [the Wolf indictment] provides specific details about the operation of the charged enterprise, how it affected interstate commerce, and how it had an existence separate from the alleged racketeering activity." No bill was ordered in Wolf. Id.
The differing outcomes in Bailey and Wolf illustrate the fine line between an adequate and an inadequate indictment. In this case, I find the Indictment sufficiently alleges that the Stapleton Crew operated as an enterprise within the meaning of the RICO statute, such that the Defendant can defend himself against those charges. The Indictment alleges that the enterprise was involved in narcotics distribution, robberies, the sale of firearms, preserving and protecting its power, territory and profits through the use of intimidation, violence and threats of violence, promoting and enhancing its criminal activities and keeping victims in fear of it through violence, intimidation and threats of violence. (Indictment ¶ 3). The Indictment further alleges means and methods of the enterprise. (Id. ¶ 4). As the Indictment presents sufficient detail as to the operation of the enterprise and how it affected interstate commerce, this motion for a bill of particulars by the Defendant is DENIED.
ii. Second Set of Requests
The Defendant next requests that the Government "specify the manner in which Mr. Wilson was either employed by or associated with the Stapleton Crew and the manner in which he participated in the operation or management of the enterprise," as is alleged in the Indictment and required to prove a RICO count. (Def.'s Mem. Supp. BOP at 6). The Government responds that this bill is "not necessary to permit Wilson to prepare for trial or avoid unfair surprise." (Govt. Resp., at 10). This specific request was discussed at oral argument. (See Transcript of Status Conference Dated June 16, 2006 ("Oral Arg. Tr."), at 23-4). Defense counsel argued that they were not privy to the manner in which Wilson was employed or associated with the crew. Stating that they could "figure it out" with respect to Wilson's co-defendants "based on their records, based on who they were arrested with, on drug cases or robbery cases," Defendant's counsel argued that it is not possible to do the same with respect to Wilson. (Oral Arg. Tr. at 23). The Government responded by pointing to my decision in Urso, see 369 F.Supp. 2d at 271-73, maintaining that it is not required to disclose "the when's, the where's or the with who's of an agreement." (Oral Arg. Tr. at 23).
I noted at argument, and affirm here, that the Urso decision does not "totally inform the decision in this case" because that case concerned the mafia, an enterprise "rich in history" and with an "identifiable structure" testified to in numerous federal cases. (Id. at 24). Nonetheless, I am denying the Defendant's request for a bill on the manner in which he was employed by or associated with the Stapleton Crew. Based upon the detailed Indictment, the discovery produced by the Government, and the defense team's acknowledged investigative efforts, I find that a bill of particulars on this matter is not necessary to apprise the Defendant of the charges against him.
iii. Third, Fifth and Sixth Sets of Requests
The Defendant's third, fifth and sixth requests seek the dates on which Wilson and his co-defendants allegedly joined the racketeering enterprise and related conspiracies, and the date(s) and location(s) of any related meetings Wilson attended, the dates Wilson and the other defendants last participated in the conspiracies, and the nature of overt acts committed by Wilson in furtherance of the conspiracies and with whom he did so. (Def.'s Mem. Supp. BOP at 6-8).
As a general rule, a defendant is not entitled to receive details of the government's conspiracy allegations in a bill of particulars. United States v. Feola, 651 F. Supp. 1068, 1132 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (2d Cir. 1989). Details regarding the date on which the conspiracy was formed, or when each participant entered into the conspiracy need not be revealed before trial. United States v. Persico, 621 F. Supp. 842, 868 (S.D.N.Y. 1985); Urso, 369 F. Supp. 2d at 272-73. This determination is supported by the fact that "[t]he government is not required to prove . . . exactly when or how a conspiracy was formed or when a particular defendant joined the scheme." United States v. Bin Laden, 92 F. Supp. 2d at 242 (internal quotation and citations omitted). Thus, the Defendant's request for this information is easily denied.
iv. Fourth Set of Requests
The fourth specific request by the Defendant seeks a bill identifying the names of all alleged co-conspirators and "others" with whom Wilson allegedly acted and conspired. (Def.'s Mem. Supp. BOP, at 7). On this question, courts in this Circuit are split. See Urso, 369 F. Supp. 2d at 273 (noting that there is "no clear line dividing cases" in which such requests have been granted or denied). In this case, I adopt the same position as I did in Urso: identifying alleged co-conspirators in a bill of particulars is inappropriate in cases where the defendant is charged with "extreme acts of violence" in order to protect the government's investigation and the safety of unindicted co-conspirators. Id.; see also United States v. Coffey, 361 F.Supp.2d 102, 122 (E.D.N.Y. 2005) ("Courts have been highly reluctant to require a bill of particulars when defendants have asked for specific identities of co-conspirators or others allegedly involved."); United States v. Santiago, 174 F. Supp. 2d 16, 35-36 (S.D.N.Y. 2001); United States v. Nachamie, 91 F. Supp. 2d 565, 572-73 (S.D.N.Y. 2000). In the present case, Wilson is charged with intentional murder and with conspiring to murder. Moreover, with respect to the need to protect the safety of cooperating witnesses, the Government informed the court at oral argument that "as recently as a couple of weeks ago," two of Wilson's initial co-defendants, currently detained at the Metropolitan Detention Center ("MDC"), assaulted another MDC inmate believed to be a cooperator in his case. (Oral Arg. Tr. at 21). Therefore, I find that disclosure of the identities of co-conspirators is not warranted, and I accordingly deny the Defendant's motion.
v. Seventh, Eight and Ninth Sets of Requests
In his final three requests pertaining to the racketeering and related racketeering conspiracy counts, the Defendant moves for an order directing a bill of particulars on (1) how the murders of Detectives Nemorin and Andrews "served to maintain or increase Mr. Wilson's position in the Stapleton Crew;" (2) how conspiring to murder "members or associates of a rival group known as the 456 crew" and to murder "John Doe" served to maintain or increase his position in the Stapleton crew; and (3) the identity of the members or associates of the rival 456 crew, whom Wilson allegedly conspired to murder and the identity of "John Doe."
With respect to the first two requests concerning how certain alleged acts served to maintain or increase Wilson's position in the Stapleton crew, the Defendant is not entitled to this disclosure through a bill of particulars. To grant the Defendant's motion would be to allow the bill of particulars to serve as a general discovery tool. Coffey, 361 F.Supp.2d at 122 ("While the information defendants seek might be useful or helpful, in light of the ample notice and specificity provided by the indictment and additional evidence and information supplied, defendants' motion for a bill of particulars is denied with prejudice. To hold otherwise, would convert a motion for bill of particulars into a motion for wide-sweeping and burdensome discovery which is plainly not contemplated by Fed.R.Crim.P. 7(f)."); see also United States v. Kyongja Kang, No. 04 CR 87, 2006 WL 208882, *1 (E.D.N.Y. Jan. 25, 2006) ("It is not the function of a bill of particulars to obtain a preview of, and to proscribe, the government's evidence before trial; to learn the legal theory upon which the Government will proceed.").
Wilson also seeks the identities of the alleged victims of the charges of Conspiracy to Murder in Aid of Racketeering put forth in counts twenty-six and twenty-eight of the original Indictment. The Indictment identifies the victims as "members and associates of a rival group known as the 456 crew," and as "John Doe, a person whose identity is known to the grand jury," respectively. The Government responds to Wilson's motion by stating that a bill is not necessary because there has been additional discovery provided to the Defendant on these counts. (Govt. Resp. at 12). Specifically, the Government proffers that it has turned over copies of crime scene photographs, a DVD recording relating to a drive-by shooting, ballistic reports and evidence vouchers. (Id.; see also Oral Arg. Tr. at 22 (describing "additional evidence" turned over since filing of motions)). The specific identities of these persons, however, has not been turned over.*fn4
To the extent that the Government knows the identities of the alleged victims of these charged crimes and has not disclosed this information, a bill of particulars is warranted. See United States v. Orena, 32 F.3d 704, 714 -715 (2d Cir. 1994). In Orena, the defendant moved for a bill or particulars identifying the victims of an alleged murder conspiracy. The government responded to the motion by disclosing the identities of twelve intended victims, and the defendant's motion was denied. The circuit court, however, in dicta, noted that the "government provided all the information that was available to it," citing United States v. Bennett, 36 F.R.D. 103, 104 (E.D.S.C.1964) for the proposition that "'[a]n indictment should name . . . the persons defrauded when they are known by the government.'" This dicta has been interpreted by other courts of this circuit to require the government to turn over the identities of victims of an alleged murder conspiracy if known to the government. See United States v. Solovey, No. 04-CR-244, 2005 WL 1279228, *3 (W.D.N.Y. May 31, 2005). Thus, the Government is directed to turn over to the Defendant within seven (7) days of the date of this Order -- to the extent that the information is known to the Government -- the identities of the alleged victims of the conspiracies to murder in aid of racketeering charges, "members of a rival group known as the 456 Crew" and "John Doe."
B. Narcotics Related Charges
Wilson also moves for bills of particulars pertaining to the following counts in the original Indictment: Count 17 (Conspiracy to Distribute Cocaine Base), Count 18 (Narcotics Distribution), and Racketeering Act ("RA") 3 (Narcotics Distribution). (Def. Mem. Supp. BOP, at 8-12). The narcotics charges cover a time period from October 1999 through March 2003. (Indictment ¶¶ 57, 58, 18-20). Wilson maintains that the bare-bones assertions set forth in the Indictment as to these drug-related charges, and the lack of discovery concerning these charges, have left him unable to defend himself against them. Specifically, Wilson urges that the following is required in order to adequately prepare for his defense: dates and locations on which/where Wilson and other defendants allegedly joined and participated in the drug conspiracy; details of each overt act allegedly committed by Wilson and other defendants in furtherance of the conspiracy; the names of Wilson's alleged co-conspirators; and Wilson's role in the alleged conspiracy.
For the same reasons discussed above with respect to the racketeering charges, Wilson's request for particulars as to the dates and locations of joining and participation in the conspiracy by himself and others is denied; his request for the names of alleged co-conspirators is similarly denied. See United States v. Kee, No. S1 98 CR 778, 2000 WL 760096, at * 3 (S.D.N.Y. June 12, 2000).
Wilson's request for particulars on each overt act committed in furtherance of the narcotics conspiracy and his request for particulars as to his alleged role in the narcotics distribution conspiracy is a tougher question. To support his request, Wilson relies on United States v. Barnes, 158 F. 3d 662 (2d Cir. 1998), in which the Second Circuit held that the trial judge should have ordered a bill of particulars (although it was harmless error not to have done so) where the narcotics conspiracy charge, covering over three years, merely tracked the language of the statute, as the Indictment in this case does. The court stated: "Since the Indictment provided not a shred of detail, the defendant was entitled to be otherwise apprised of the conduct that he was alleged to have undertaken in furtherance of this multi-faceted, if not multiple, conspiracy." The Government argues that Barnes is distinguishable because it apparently alleged a more complex conspiracy that involved several types of drugs, whereas the Wilson Indictment concerns only cocaine.
The distinction the Government proposes, based on the type of narcotic alone, is at best weak. The court finds that this case is sufficiently analogous to Barnes to warrant ordering a bill of particulars with respect to the narcotics conspiracy charge and Wilson's alleged role in the conspiracy. Furthermore, because the conspiracy provision of the Controlled Substances Act, 21 U.S.C. § 846, does not require an indictment to list any overt acts taken in furtherance of the conspiracy, "[a] bill of particulars is all the more important in a narcotics conspiracy case because the indictment itself provides so little detail." United States v. Ramirez, 54 F. Supp. 2d 25, 30 (D.D.C. 1999).
Therefore, the court grants the Defendant's motion for a bill of particulars as to Defendant's request number seven pertaining to the narcotics related charge: "the role Mr. Wilson played in the narcotics trafficking conspiracy." (Def.'s Mem. Supp. BOP, at 12). The court is not expressly requiring the Government to provide the Defendant with overt acts committed in furtherance of the conspiracy. Rather, the Government must provide meaningful discovery within seven (7) days of the date of this Order that will apprise the Defendant in greater detail of the narcotics conspiracy charged in the Indictment such that he can sufficiently prepare to defend against the charge.
C. Robbery and Firearms Related Charges
In Counts 12-16 and Racketeering Acts 6 and 7 of the original Indictment, Wilson is charged with Robbery, Robbery Conspiracy, and related firearms crimes for conduct that occurred on or about May 2, 2002. (Indictment ¶¶ 23-27, 52-56). Again, Wilson moves for a bill of particulars providing relevant dates and locations concerning the alleged conspiracy, identities of co-conspirators, and further details of the role Wilson played in the alleged conspiracy. (Def. Mem. Supp. BOP, at 12-13). Again, for the same reasons discussed above, the Defendant's motion is denied. The Indictment and discovery adequately apprise Wilson of the charges against him, and a bill of particulars is therefore unnecessary.
D. Aggravating Factors Alleged in the Indictment and NOI
Wilson moves as well for a bill of particulars with respect to the three statutory aggravating factors charged in the Indictment's Notice of Special Findings (NOSF), and the five non-statutory aggravating factors noticed in the Government's Notice of Intent to Seek the Death Penalty (NOI). Courts have found authority under Fed. R. Crim. P. 7(f) to order bills of particulars in connection with aggravating factors the Government intends to prove at the sentencing phase of a capital prosecution for the same reason that bills are authorized with respect to charges in an indictment, i.e. to ensure that a criminal defendant is able to adequately prepare his defense. See e.g., Bin Laden, 126 F. Supp. 2d 290, 304-305 (S.D.N.Y. 2001) (ordering limited bill of particulars pursuant to Rule 7(f) specifying the particularized categories of "injury, harm, and loss" that will be proffered through victim impact evidence at sentencing); but see United States v. Llera Plaza, 179 F.Supp.2d 464, 472 (E.D. Pa. 2001) ("[T]he court concludes that . . . Rule 7 is not applicable to NOIs submitted to satisfy FDPA requirements."); United States v. Kaczynski, CR-96-259, 1997 WL 716487, at *19 (E.D. Cal. Nov. 7, 1997) (finding that "by its express language, Fed. R. Crim. P. 7 applies only to informations and indictments. Since aggravating factors are neither offenses nor elements of substantive offenses that must be alleged by indictment, Fed. R. Crim. P. 7 does not govern the nature or specificity of notice required under § 3593(a)").
In the absence of authority pursuant to Rule 7(f), courts have nonetheless ordered bills supplementing noticed aggravating factors on Constitutional grounds. These courts have found that the Constitution -- either in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment -- guarantees criminal defendants a meaningful opportunity to present a complete defense and that this guarantee grants authority to order bills of particulars in connection with aggravating factors in the sentencing phase of a death penalty case. See Llera Plaza, 179 F.Supp.2d at 471-72 (citing cases). Thus, whether by way of Rule 7(f) or inherent authority, if warranted, this court can order the bills Wilson seeks. United States v. Karake, 370 F.Supp.2d 275, 279-80 (D.D.C. 2005) ("it has been uniformly recognized that if the death penalty provides insufficient notice to the defendant, the Court retains inherent authority to require the government to provide more specifics in order to give the defendant the opportunity to prepare for the penalty phase").
i. Pecuniary Gain and Substantial Planning and Premeditation
Wilson requests that the Government be ordered to specify the thing of "pecuniary value" for which he allegedly committed the capital offenses charged in the Indictment. (Def.'s Mem. Supp. BOP, at 15). The Government responds that the Indictment and discovery "trace the prosecution's theory of the case" and therefore a bill on these aggravators is not warranted. (Govt. Resp., at 15). Specifically, Wilson is aware that the Government intends to prove that the victims had arranged to buy weapons from Wilson and other members of the Stapleton Crew, that the Defendant and associates in turn intended to rob Detectives Andrews and Nemorin of the "buy" money, and that Wilson ultimately murdered the two detectives. Thus, the Defendant will face no surprise at trial or the sentencing phase of how the Government intends to prove the factors of pecuniary gain and substantial planning and premeditation. See Lerra Plaza, 179 F. Supp. 2d at 472 (holding that the defendants were given adequate notice of the facts the government will use to establish the statutory aggravating factors of procurement of offense by payment, pecuniary gain, and substantial planning and premeditation because the Indictment and the government's discovery disclosures trace the prosecution's theory of the case). This request for a bill is therefore denied.
ii. Obstruction of Justice
Wilson next moves for an order requiring the Government to "state how the deaths of [Detectives Nemorin and Andrews] were intended to obstruct justice." (Def.'s Mem. Supp. BOP, at 16). The Government's response is simply that the Defendant "does not cite any authority to support this request because there is none." (Govt. Resp., at 16). As a preliminary matter, the court notes that the Government's response is incorrect; there is precedent -- albeit non-binding -- for ordering the Government to provide greater specificity with respect to an obstruction of justice sentencing factor. See United States v. Harris, 332 F. Supp. 2d 692, 696-7 (D.N.J. 2004) (noting that the court heard arguments on defendant's objection "to the lack of specificity" with which the obstruction-of-justice sentencing factor was noticed, and that the court "for reasons stated on the record" ruled that the Government should provide greater specificity for the obstruction of justice factor).
Nonetheless, although this court could order particulars with respect to the obstruction of justice aggravating factor, such an order is neither required nor warranted in this case. At oral argument, the Government sufficiently explained its obstruction of justice theory. The Government explained that it intends to prove that, by killing Detectives Andrews and Nemorin, Wilson killed "two people who could have provided information to federal authorities" about "all the crimes basically committed by the Stapleton Crew charged in the Indictment." (Oral Arg. Tr., at 28). In light of this disclosure, no bill is required with respect to the obstruction of justice aggravating factor.
iii. Future Dangerousness of the Defendant
The Government has provided notice that it intends to prove the aggravating factor of future dangerousness by presenting evidence of, at least, one or more of the following: a continuing pattern of violence; a lack of remorse; a low rehabilitative potential; and membership in a criminal street gang. The Government avers that Wilson already has sufficient notice of what evidence will be presented at trial with respect to this aggravating factor. Specifically, the Government proffers that, among other evidence, it intends to rely on "the acts charged in the indictment, the defendant's prior convictions and his well-documented prison infractions . . . ." (Govt. Resp., at 16).
Wilson relies primarily on three cases in which courts directed particulars to be provided on the elements of future dangerousness. In United States v. Rodriguez, 380 F. Supp. 2d 1041, 1058 (D.N.D. 2005), the court ordered the government to provide an outline of the evidence it intended to rely upon to prove the non-statutory aggravating factor of future dangerousness, but provided little, if any, analysis on the decision except to say that it was justified to allow the defendant to properly defend against the charges. In United States v. Llera Plaza, 179 F. Supp. 2d 464, 474 (E.D.Pa. 2001), the court similarly ordered the government to submit an outline of intended evidence. There, the court required that the outline include a description of any unadjudicated act of misconduct that the government intends to prove given the "potential problems with the reliability of such evidence and the risk that it may mislead." Finally, in United States v. Glover, 43 F. Supp. 2d 1217, 1227 (D. Kan. 1999), the court directed the government to more specifically articulate to the court the nature of the "lack of remorse" aggravating factor by setting out the factual basis on which it intended to show the defendant's lack of remorse, so that the court could decide whether a pretrial ...