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United States v. Smith

December 15, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
KEVIN SMITH, DEFENDANT.



DECISION AND ORDER

This case was referred to the undersigned by the Hon. Richard J. Arcara, 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 defendant, Kevin Smith ("the defendant"), is charged in a multicount Second Superseding Indictment with having violated Title 18 U.S.C. § 287 (Counts 1 through 7); Title 26 U.S.C. § 7206(2) (Count 8) and Title 18 U.S.C. § 1341 (Counts 9 through 11). He has filed an omnibus motion*fn1 wherein he seeks: (1) exclusion of "purported expert testimony regarding handwriting" (Docket #16, p. 29, ¶ III); (2) a bill of particulars (Docket #16, p. 33, ¶ IV); (3) compelled "disclosure of the identities of all government informants" (Docket #16, p. 35, ¶ V); (4) discovery pursuant to Rule 16 of the Fed. R. Crim. P. (Docket #16, p. 36, ¶ VI); (5) "production of Brady material" (Docket #16, p. 37, ¶ VII); (6) "disclosure of evidence pursuant to Rules 404(b), 608 and 609 of the Federal Rules of Evidence" ("F.R.E.") (Docket #16, p. 40, ¶ VIII); (7) "disclosure of witness statements" (Docket #16, p. 41, ¶ IX); (8) "preservation of rough notes and other evidence" (Docket #16, p. 42, ¶ X); (9) permission "for active counsel participation in voir dire" (Docket #16, p. 43, ¶ XI); (10) "pre-trial production of government summaries" (Docket #16, p. 44, ¶ XII); (11) permission "to voir dire government experts outside the presence of the jury" (Docket #16, p. 45, ¶ XIII); (12) an "audibility hearing" (Docket #16, p. 46, ¶ XIV); (13) "leave to make other motions" (Docket #16, p. 47, ¶ XV).

The defendant has also filed a motion seeking dismissal of Counts 1 through 7 of the Superseding Indictment (Docket #16, p. 27, ¶ II) as well as a motion to suppress evidence (Docket #16, p. 3, ¶ I) and in the alternative, a Franks Hearing (Franks v. Delaware, 438 U.S. 154 (1978) (Docket #16, p. 18, ¶ 4).

The motion to dismiss Counts 1 through 7 and to suppress evidence will be addressed in a separate Report, Recommendation and Order prepared by this Court. All of the other requests will be separately addressed herein.

The government has filed a response to these demands by the defendant (Docket #25) and has filed a discovery demand pursuant to Rule 16(b) of the Fed. R. Crim. P. (Docket #24).

DISCUSSION AND ANALYSIS

1. Exclusion of Purported Expert Testimony Regarding Handwriting:

The defendant attacks the admissibility of expert testimony relating to handwriting analysis claiming that such testimony will not meet the requirements established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). In order to buttress this claim, the defendant requests a Daubert Hearing to resolve this issue prior to the admission of such testimony at the defendant's trial.

Since the issue raised by the defendant involves an application of Rule 702 of the F.R.E., the resolution of such issue is better left for the determination of the trial judge to whom this case has been assigned. Therefore, the defendant's request is DENIED without prejudice with the right to renew such motion before the trial judge at a time set by said trial judge.

2. Defendant's Request For A Bill Of Particulars:

The defendant asserts that a "bill of particulars is necessary to enable the defendant: (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." (Docket #16, p. 33, ¶ IV).

The defendant's 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 Second Superseding Indictment clearly inform the defendant of the essential facts of the crimes charged. As a result, the defendant is not entitled to, nor is he 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).

3. Defendant's Request For Disclosure Of The Identities Of All Government Informants:

The defendant requests "disclosure of the names, addresses and criminal records of all informants utilized by the government in its investigation of ...


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