The opinion of the court was delivered by: Hon. Hugh B. Scott
This matter has been referred to the undersigned to hear and determine pretrial matters pursuant to 28 U.S.C. § 636 (b)(1)(A) and, pursuant to 28 U.S.C. § 636(b)(1)(B), to submit proposed findings of fact and recommendations for the disposition of any motion excepted by pursuant to 28 U.S.C. § 636(b)(1)(C) (Docket No. 20). The instant matters before the Court are defendant William Ramirez' (Docket No. 21*fn1 ) and defendant Randy Krystof's (Docket No. 26*fn2 ) omnibus motions, and the Government's cross-motions for production under Federal Rule of Criminal Procedure 16(b) (Docket No. 22, Gov't Atty. Aff. ¶ 23 (Ramirez), Docket No. 30, Gov't Atty. Aff. ¶ 22 (Krystof)). The Court issued an Order (Docket No. 32, Order, Sept. 14, 2006) that it is now reexamined and amended.
A criminal Complaint was filed against Ramirez, defendant Nicholas Walenka, and a third person (Paul Frontuto) on February 23, 2006. At a preliminary hearing on March 13, 2006, this Court found that the Government had not met its burden as to Ramirez. The Government indicated that it intended to proceed to the grand jury. (Docket No. 5.) Ramirez, Walenka, and Krystof were indicted in a five-count indictment on March 28, 2006 (Docket No. 6). Count one charged Ramirez and defendant Nicholas Walenka with conspiracy to distribute a controlled substance (50 grams of cocaine base), in violation of 21 U.S.C. § 846; counts two and three charged Ramirez and Walenka with unlawfully possessing with intent to distribute cocaine base in February 2006, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2 (Docket No. 6). Count four alleged that, on or about March 22, 2006, Krystof knowingly and unlawfully caused, attempted to cause, and threatened to cause bodily injury to a person known to the grand jury with the intent to retaliate against that person, in violation of 18 U.S.C. §§ 1513(b)(2), and 2 (id.). The fifth count alleged Krystof entered into a conspiracy with unnamed others (on or about March 12, 2006) unlawfully to conspire to threaten bodily harm to a person known to the grand jury, in violation of 18 U.S.C. § 1513(e) (id.).
Krystof was arraigned before Magistrate Judge Foshcio on March 29, 2006 (Docket No. 7), which was adjourned to be continued. On April 21, 2006, Ramirez was arraigned before Magistrate Judge Schroeder and entered a not guilty plea (Docket No. 15). Non-moving defendant Walenka was arraigned on April 3, 2006 (Docket No. 9). This Court then entered a scheduling Order, on May 30, 2006, as to all three defendants, with motions due by June 29, 2006, argument initially set for July 27, 2006 (Docket No. 19; see also Docket No. 28), with time excluded under the ends of justice exclusion of the Speedy Trial Act, 18 U.S.C. § 3161(h)(8)(A); see id. § 3161(h)(1)(F) (motion exclusion).
Ramirez moved for various forms of relief, including severance from his co-defendants and for the Government to provide a Bill of Particulars (Docket No. 21). Krystof moved for similar relief (Docket No. 26).
The Government responds to both motions by claiming that it provided sufficient materials in discovery that, coupled with the Indictment, the charges against both defendants are clear enough to not require a Bill of Particulars. The Government opposes severance. (Docket Nos. 22, 30.)
The motions were argued on August 15, 2006, and then were deemed submitted (text docket entry, Aug. 15, 2006).
Both Ramirez and Krystof seek Bills of Particulars. Ramirez wants identified the names of his co-defendants and to avoid double jeopardy by a bill of particulars. Krystof wants the details of the alleged intimidation (when, where, what acts, to whom) in order to raise a possible alibi defense. The Government responds to both movants that the indictment and voluntary discovery disclose sufficient information to not warrant Bills of Particulars (Docket Nos. 22, Gov't Atty. Aff. ¶¶ 11-17; Docket No. 30, Gov't Atty. Aff. ¶¶ 13-16). The Government argues that if the information sought in the Bill is provided from other sources, then the Bill of Particulars is not needed (id., Docket No. 22, ¶ 12), United States v. Bortnovsky, 820 F.2d 572 (2d Cir. 1987). Since a Bill of Particulars would confine the Government's proof to the particulars furnished, the Government argues that the Bill would unduly restrict its presentation of the case (id., Docket No. 22, ¶ 15).
Rule 7(f) of the Federal Rules of Criminal Procedure provides that the Court may direct the filing of a Bill of Particulars. Bills of Particulars are to be used only to protect a defendant from double jeopardy and to enable adequate preparation of a defense and to avoid surprise at trial. United States v. Torres, 901 F.2d 205 (2d Cir. 1990). The Government is not obligated to "preview its case or expose its legal theory" United States v. LaMorte, 744 F. Supp. 573 (S.D.N.Y. 1990); United States v. Leonelli, 428 F. Supp. 880 (S.D.N.Y. 1977), nor must it disclose the precise "manner in which the crime charged is alleged to have been committed," United States v. Andrews, 381 F.2d 377 (2d Cir. 1967). Notwithstanding the above, there is a special concern for particularization in conspiracy cases. United States v. Davidoff, 845 F.2d 1151 (2d Cir. 1988).
Upon review of the indictment, the Court finds that Ramirez is not entitled to a Bill of Particulars inasmuch as the defendant is sufficiently advised of the charges against him to allow for the proper preparation of a defense, to avoid surprise at trial, and to protect the ...