The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is defendant's motion for various forms of discovery and other relief (Docket Nos. 33, 31*fn1 ). Pretrial matters in this case were referred to the undersigned on November 2, 2006 (Docket No. 27). The Scheduling Order had responses to this motion due by March 12, 2007 (Docket No. 25), and argument was scheduled for March 19, 2007, defense counsel was not present, but the motion was deemed then submitted on the papers.
Defendant was indicted in an eight-count Indictment, for violations of 21 U.S.C. §§ 846, 841(a)(1), 844(a), and 18 U.S.C. §§ 1028(a)(6), and 472 (Docket No. 22). In particular, defendant is charged with conspiracy to distribute quantities of fentanyl, cocaine, oxycodone, hydrocodone, between January 2004 and February 2006 (id., Count 1) and possession on February 1, 2006, of these controlled substances (id., Counts 2, 3, 5). He is also charged with possession of marijuana (id., Count 4) and diazepam (id., Count 6) on that same date. Defendant allegedly possessed a stolen social security card, in violation of 18 U.S.C. § 1028(a)(6) and (b)(6) (id., Count 7), and also kept in his possession a forged five dollar bill, in violation of 18 U.S.C. § 472 (id., Count 8).
Defendant's Omnibus Motion
Defendant seeks several forms of relief, moving for a Bill of Particulars; identification of government informants;
Rule 16 disclosure, in particular of defendant's statements, defendant's prior record, intercepted communications, fruit of any searches, documents and tangible materials, identification items, reports of examinations or tests, Jencks Act materials;
Federal Rules of Evidence 404(b), 608, and 609 evidence;
Witnesses' statements, pursuant to the Jencks Act; preservation of rough notes; pretrial production of the Government's summaries; an audibility hearing of any tapes the Government intends to use; transcript from the grand jury. (Docket No. 33.) Defendant seeks counsel participation in the voir dire of the jury and a voir dire of the Government's experts outside the presence of the jury (id.). He also seeks to exclude post-arrest statements by any non-testifying alleged co-conspirators and any testimonial hearsay that is barred by the Sixth Amendment, see Crawford v. Washington, 541 U.S. 36 (2004) (id.).
The Government responds generally that it has produced much of the discovery items sought by defendant (Docket No. 34, Gov't Response at 2, 5, Ex. A). The Government addresses some of the requested particularity sought by defendant in a Bill of Particulars and noted other requests that were beyond the scope of such a Bill (id. at 2-4).
Defendant first seeks a Bill of Particulars, namely identifying the unidentified co-conspirators, the specifics as to the conspiracy, "uncharged overt acts taken by the co-conspirators including" defendant, and the like (Docket No. 33, Def. Motion at 4-5). As described above, the Government responded with some particularity (naming the co-conspirators, denying any allegation regarding August 2002, indicating that the dates of the conspiracy were alleged in Count 1 of the Indictment, that is, from January 2004 through February 2006), but reserved its objection as to other items defendant wanted particularized (Docket No. 34, Gov't Response at 2-4; Docket No. 22, Indictment, Count 1).
Rule 7(f) of the Federal Rules of Criminal Procedure provides that the Court may direct the filing of a Bill of Particulars. "A bill of particulars is a statement of what the government will or will not claim in its prosecution," United States v. GAF Corp., 928 F.2d 1253, 1260 (2d Cir. 1991). 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, 234 (2d Cir. 1990). The grant of a Bill of Particulars is within this Court's sound discretion, with that discretion informed whether the particularization is necessary for defendant to prepare for trial and to avoid unfair surprise at trial, see United States v. Feola, 651 F. Supp. 1068, 1132 (S.D.N.Y. 1987) (citations omitted), aff'd, 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 834 (1989). In deciding whether to order the Government to particularize, the Court must determine if the information sought was already provided in discovery or by other means, see id. at 1133. 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 ...