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United States v. Sylvia

March 20, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
SHAWN M. SYLVIA, 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. William M. Skretny, 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, Shawn M. Sylvia ("the defendant"), is charged in a two count indictment with having violated Title 21 U.S.C. § 846. He has filed an omnibus discovery motion wherein he seeks (1) a bill of particulars; (2) discovery pursuant to Rule 16 of the Fed. R. Crim. P.; (3) "discovery with respect to FRE 403, 404(b) and 609;" "discovery with respect to FRE 702, 703 and 705;" (4) production of Brady, Giglio and Jencks materials; (5) "identity of informants;" and (6) "leave to make further motions." (Docket #8).

The government has filed its response in opposition to the defendant's motion as well as its reciprocal motion for discovery pursuant to Rule 16(b) of the Fed. R. Crim. P. (Docket #10).

Each of the aforesaid requests will be separately discussed herein.

DISCUSSION AND ANALYSIS

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

The defendant has moved pursuant to Rule 7(f) of the Fed. R. Crim. P. for a bill of particulars containing a detailed description of the times, places and events as well as identities of the parties involved and the exact quantity of the cocaine involved as alleged in Counts 1 and 2 of the Indictment. (Docket #8, pp. 2-4).

In response to this demand, the government states that "the Indictment is sufficient and that the demand for a bill of particulars is unwarranted" and that "the volume of discovery provided thus far in this action provides an overall picture of the defendant's culpability and actions relative to the Indictment" and further "delineate[s] all the specific information sought by the defendant's requests." (Docket #10, p. 9, ¶ 17).

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 charge in Count 1 and 2 of the Indictment, along with the discovery materials provided or to be provided by the government as aforesaid, 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); see also United States v. Chen, 378 F.3d 151, 163 (2d Cir. 2004); United States v. ...


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