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United States v. Lin

July 8, 2008

UNITED STATES OF AMERICA,
v.
FANG LIN, DEFENDANT.



The opinion of the court was delivered by: Hon. Hugh B. Scott

Decision & Order

Before the Court is the defendant's omnibus motion seeking various pretrial discovery (Docket No. 14).

Background

On November 1, 2007, the Grand Jury issued an Indictment charging defendant, Fang Lin ("Lin"), with the following: that Lin did conceal, harbor and shield an unlawful alien from detection in violation of 8 U.S.C. §1324(a)(1)(iii) and 1324(a)(1)(A)(v)(II) [Count 1]; and that Lin did keep, maintain, control, support and harbor said alien for the purpose of prostitution and failed to file a written statement with the Commissioner of Immigration and Naturalization relating to the individual's entry into this country in violation of 18 U.S.C. §2424(a) and 2.

Discussion

By way of the instant motion, the defendant seeks: discovery under Rules 12 and 16 of the Federal Rules of Criminal Procedure; a bill of particulars; disclosure of evidence under Rules 404(b), 608 and 609 of the Federal Rules of Evidence; disclosure of Brady*fn1 material; disclosure of information from personnel files of government agent witnesses; preservation of evidence; disclosure of the identity of informants; disclosure of Jencks Act (18 U.S.C. §3500 et seq.) material; and an audibility hearing.

Rule 16 Discovery

The defendant seeks disclosure of various categories of discovery pursuant to Rule 16 of the Federal Rules of Criminal Procedure. It appears that the government has provided, or agreed to provide the information sought in the respective requests to the extent it exists. At oral argument with respect to the instant motion, the government agreed to provide certain Jencks Act material. The defendant did not identify any other outstanding discovery issues.

Rule 12

Pursuant to Rule 12(d)(2) of the Federal Rules of Criminal Procedure, the defendant has requested that the government give notice of its intention to use at trial any evidence which is discoverable under Rule 16. The government's response addresses the defendant's Rule 12 request (Docket No. 16 at pages 2-4). The defendant has not represented to the Court that this notice is inadequate.

Bill of Particulars

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. U.S. v. Torres, 901 F.2d 205 (2d Cir. 1990). The government is not obligated to "preview its case or expose its legal theory." U.S. v. LaMorte, 744 F.Supp 573 (S.D.N.Y. 1990); U.S. 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" U.S. v. Andrews, 381 F.2d 377 (2d Cir. 1967).

Upon review of the indictment, and upon the discovery and information already provided or promised in this case, the defendant has not demonstrated that further particularization is required to protect him from double jeopardy or to enable ...


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