The opinion of the court was delivered by: Hon. Hugh B. Scott
This matter is 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 28 U.S.C. § 636(b)(1)(A) (Docket No. 29).
The instant matters before the Court are defendants' separate omnibus motions (Docket Nos. 24*fn1 , 25*fn2 ), and the Government's motions for reciprocal discovery (Docket No. 26, Bing Lu Response at 13-14; Docket No. 27, Ying Dong Response at 8-9). Defendant Ying Dong moves for discovery and for a bill of particulars, among other relief sought (Docket No. 24). Defendant Bing Lu also moves for discovery and a bill of particulars, and he moves to compel the identity of informants, disclosure of Giglio materials, production of Jencks Act material, and to suppress physical evidence (Docket No. 25). Ordinarily, Bing Lu's motion to suppress would be considered in a separate Report & Recommendation, but given the extent of discovery in this case, the suppression motion is considered here. The motions were argued on June 17, 2008, and the motions were deemed submitted on that date (Docket No. 32).
Defendants were indicted, on November 1, 2007, for failure to file a factual statement about an alien female they were harboring, in violation of 18 U.S.C. § 2424, and illegal harboring of an alien, in violation of 8 U.S.C. § 1324 (Docket No. 14, Indictment). Defendants were charged with having a business (the Eastern Spa) and a residence in Tonawanda, New York, and using them to harbor aliens for the purpose of prostitution and failed to render a written statement about these aliens to the Commissioner of Immigration and Nationality (id.).
Ms. Ying Dong moves for discovery of her statements, her criminal history, reports of any physical or mental examinations and other scientific reports, expert statements, documents having reference to pretrial identification procedures of Ying Dong, photographs, charts and summaries, intercepted communications, preservation of rough notes, all evidence belonging to or otherwise seized from defendant (Docket No. 24, Ying Dong Def. Atty. Affirm. Ex. A, Demand Nos. 1-10). She seeks notification of the Government's intention to use Federal Rule of Criminal Procedure 16 evidence that may be subject to a motion to suppress (id. Ex. A, Demand No. 11). She also seeks character evidence, Jencks Act material, list of witnesses, investigatory reports, and Brady material (id. Ex. A, Demand, Nos. 12-16).
Ying Dong also seeks particularization of the legal definition of "prostitution" as alleged in the Indictment; the date, location, participants, and conduct constituting instances of "prostitution" at the Eastern Spa; the date, location, participants, and conduct constituting "other immoral purpose" as alleged; the names, addresses, telephone numbers, and time periods each alien was kept, maintained, controlled, supported and harbored by defendant at the Eastern Spa (id. Ex. B).
The Government stated during oral argument that much of the discovery requests will be complied with, some produced up to the date of trial. The Government contends that has produced and intends to continue to produce discoverable material (Docket No. 27, Ying Dong Response at 2, 3). The Government also moved for reciprocal discovery (Docket No. 27, at 8-9). Bing Lu's Motions Mr. Bing Lu also seeks a Bill of Particulars as to where defendant committed the offense alleged in Count One of the Indictment, when and the manner in which it occurred (Docket No. 25, Def. Atty. Affirm. ¶ 5), and similar specificity as to Count Two (id. ¶ 6).
He seeks discovery under Rule 16, and he also moves to compel disclosure of the identity of informants, disclosure of Giglio materials, production of Jencks Act material (id. ¶¶ 9-67), and to suppress physical evidence (id. ¶¶ 68-71).
As with Ying Dong, the Government indicates that it has and will continue to produce discoverable materials (Docket No. 26, Bing Lu Response at 6, 7). The Government also moved for reciprocal discovery from Bing Lu (Docket No. 26, Bing Lu Response at 13-14).
Bing Lu's Motion to Suppress
Mr. Bing Lu moves to suppress physical evidence, since defense counsel did not have the search warrant application to determine if probable cause existed to justify the search (Docket No. 25, Def. Atty. Affirm. ¶¶ 68-71, 71). The Government counters that, due to the change in counsel, that Bing Lu was provided with the search warrant application and, if necessary, another copy of the application can be given to new counsel (Docket No. 26, Bing Lu Response at 12-13). In any event, the Government concludes that all legal requirements were met to justify the warrant and subsequent search (id.).
Both defendants seek Bills of Particulars. Both defendants seeks particulars about the events charged in the two-count Indictment (see id., Ex. B, Nos. 2-4; Docket No. 25, Bing Lu Def. Atty. Aff. ¶¶ 5-6). Counsel for Ying Dong argued that it was not clear which part of 18 U.S.C. § 2424(a) (the prostitution or immoral acts) was being charged (see also Docket No. 24, Ex. B, Nos. 1-3).
The Government contends as to each defendant that the Indictment and accompanying (and on-going) discovery is sufficient and Bills of Particulars are unwarranted (Docket No. 27, Ying Dong Response at 4; Docket No. 26, Bing Lu Response at 2).
Rule 7(f) of the Federal Rules of Criminal Procedure provides that the Court may direct the filing of a Bill of Particulars, and it is within this Court's discretion to order such a filing, Wong Tai v. United States, 273 U.S. 77, 82 (1927) (Docket No. 27, Ying Dong Response at 5; Docket No. 26, Bing Lu Response at 3). 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).
As for the details about commission of the offenses alleged in the Indictment, the pleading and the subsequent discovery provides sufficient particularization to not warrant a Bill of Particulars. One subject deserves discussion. Ying Dong sought the legal definition of "prostitution" under 18 U.S.C. § 2424(a), charged in the second count of the Indictment (Docket No. 24, Ex. B, No. 1), arguing during oral argument she was not sure which part of that statute she was being charged with, under the "prostitution" or the "other immoral purpose" provision. Section 2424(a), a provision of the Mann Act, outlaws the failure to file a factual statement about alien, namely
"Whoever keeps, maintains, controls, supports, or harbors in any house or place for the purpose of prostitution, or for any other immoral purpose, any individual, knowing or in reckless disregard of the fact that the individual is an alien, shall file with the Commissioner of Immigration and Naturalization a statement in writing setting forth the name of such individual, the place at which that individual is kept, and all facts as to the date of that individual's entry into the United States, the port through which that individual entered, that individual's age, nationality, and parentage, and concerning that individual's procuration to come to this country within the knowledge of such person; and "Whoever fails within five business days after commencing to keep, maintain, control, support, or harbor in any house or place for the purpose of prostitution, or for any other immoral purpose, any alien individual, to file such statement concerning such alien individual with the Commissioner of Immigration and Naturalization; or "Whoever knowingly and willfully states falsely or fails to disclose in such statement any fact within that person's knowledge or belief with reference to the age, nationality, or parentage of any such alien individual, or concerning that individual's procuration to come to this country," 18 U.S.C. § 2424(a). The elements of an offense under this statute does not appear to distinguish between prostitution or keeping a place for other immoral purpose. Those elements include keeping a place for prostitution or other immoral purpose, failure of that keeper to register an alien prostitute (or an alien engaged in other immoral purposes) that the keeper was harboring, see United States v. Horton, 328 F.2d 132, 133-34 (3d Cir.), cert. denied, 377 U.S. 970 (1964). Ying Dong's motion, in effect, seeks from the Government legal definitions and conclusions of law, but those are beyond the scope of a Bill of Particulars, see United States v. Tucker, 262 F. Supp. 305, 308 (S.D.N.Y. 1966); United States v. Luros, 243 F. Supp. 160, 172 (N.D. Iowa) (Government is not required to state definitions of legal terms, there defining "obscene," "lewd," and similar terms in the obscenity statute, citing United States v. Frew, 187 F. Supp. 500, 508 (E.D. Mich. 1960)), cert. denied, 382 U.S. 956 (1965); 1 Charles A. Wright, Federal Practice and Procedure § 129, at 662 n.32 (Criminal 3d ed. 1999). Therefore, Ying Dong is not entitled to particularization of this point.
Upon review of the Indictment, the Court finds that defendants are not entitled to a Bill of Particulars inasmuch as each defendant is sufficiently advised of the charges against them to allow for the proper preparation of a defense, to avoid surprise at trial, and to protect the ...