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United States v. Cain

May 9, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DAVID CAIN, JR., DEFENDANT.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

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, David Cain, Jr. ("the defendant"), is named, along with co-defendants Chris Cain and James Soha, in a multicount, "First Superseding Indictment" wherein he is charged with having violated Title 18 U.S.C. § 1951 (Counts 1, 3, 6, 8, 9), Title 18, U.S.C. § 844(h) (Counts, 2, 5, 7, 14, 18, 19), Title 18, U.S.C. § 1341 (Counts 4, 10, 13), Title 18, U.S.C. §§ 1512(b)(1) and (3) (Count 11), Title 18, U.S.C. § 1512(b)(1) (Counts 21, 22, 23, 24, 27), Title 18, U.S.C. § 32(a) (Count 17), Title 18, U.S.C. § 1512(k) (Counts 20, 26, 28), Title 18, U.S.C. § 1512(c)(1) (Count 29), Title 18, U.S.C. § 1962(c) (Count 30), Title 18 U.S.C. § 1962(d) (Count 31). (Docket #25). He has filed an omnibus motion wherein he seeks: (1) a bill of particulars (Docket #58); (2) discovery pursuant to Rule 16, Fed. R. Crim.P.; (3) discovery pursuant to "United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991);" (4) "production of guideline sentencing material;" (5) "disclosure of evidence concerning confidential informant(s);" (6) disclosure and production of Brady and Jencks materials; (7) disclosure of expert witnesses pursuant to Rule 16(a)(1)(E)*fn1 (sic); (8) disclosure of evidence pursuant to Rules 403, 404(b) and 609 F.R.E.; (9) "disclosure of residual statements made pursuant to Rule 807" F.R.E.; (10) permission "to join in any motions brought by his co-defendants which apply to him;" and (11) permission "to bring additional motions." (Docket #59).

The government has filed a response to defendant's omnibus motion (Docket #69) and to defendant's demand for a bill of particulars (Docket #66).

Each of the defendant's requests will be addressed herein.

DISCUSSION AND ANALYSIS

1. Defendant's Demand For A Bill Of Particulars:

The defendant seeks a laundry list of details or particulars primarily consisting of what is anticipated to be the government's evidence in proving the charges set forth against the defendant in the indictment. These requests of the defendant are 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 indictment clearly inform the defendant of the essential facts of the crime 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).

2. Discovery Pursuant To Rule 16, Fed. R. Crim. P.:

The defendant has basically made a demand for all of the information and materials to which he is entitled pursuant to Rule 16(a) of the Fed. R. Crim. P. In response to this demand, the government represents that "it has fully complied with the mandates of Fed. R. Crim. P. 16(a)(1)(A), (B), (D), (E) and (F)." (Docket #69, p. 2). Based on this representation, the defendant's request is DENIED on the basis that it is moot.

3. Defendant's Request For Discovery Pursuant To United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991):

Henthorn stands for the proposition that the government must examine the personnel files of officers who will testify at trial upon the request made by a defendant for their production and "disclose information favorable to the defense that meets the appropriate standard of materiality." Id. at 30. This mandate is, in essence, that which is required under Brady v. ...


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