The opinion of the court was delivered by: Honorable Hugh B. Scott United States Magistrate Judge
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. 11).
The instant matter before the Court is the defendant Sean McIver's omnibus motion (Docket No. 15) which seeks the following relief: filing of a Bill of Particulars; discovery pursuant to Federal Rules of Criminal Procedure 12 and 16; Federal Rules of Evidence 403, 404(b), 609 materials; expert witness disclosure; production of Brady material; production of Jencks Act material; identity of informants; and severance. Also before the Court is defendant's motion to suppress physical evidence (id., Def. Atty. Aff. ¶¶ 69-74); that motion will be considered in a separate Report & Recommendation. Defendant also joins in co-defendant's motions (id. ¶ 81), but this is deemed moot since his co-defendant has not moved and has subsequently entered a guilty plea (see Docket Nos. 24-26).
The Government has filed responding papers (Docket No. 18) and oral argument was heard on August 13, 2009, and the motion was then deemed submitted (text minute entry, Aug. 13, 2009).
Defendant is charged with three counts of unlawful possession with intent to distribute of at least 5 grams or more of a substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2 (Docket No. 7, Indict.). On or about February 10, 2009, defendant (with co-defendant Robert Cox) possessed 5 or more grams of crack cocaine in Niagara Falls, New York (id., Count I), and, on or about March 12, 2009, defendant allegedly possessed 50 grams and 5 grams, again in Niagara Falls (id., Counts II, III). On August 13, 2009, the Government indicated that these charges would be superseded (text minute entry, Aug. 13, 2009).
First, defendant seeks a Bill of Particulars as to the place where defendant committed the offense, the quantities of cocaine allegedly possessed, the manner in which it was determined to be cocaine, and whether possession was constructive or actual (Docket No. 15, Def. Atty. Aff. ¶ 5).
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, 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).
Upon review of the Indictment and the Government's disclosure (see Docket No. 18, Gov't Response at 3, 5), the Court finds that defendant is not entitled to a Bill of Particulars inasmuch as the defendant is sufficiently advised of the charges against him to allow for the proper preparation of a defense, to avoid surprise at trial, and to protect the defendant from double jeopardy. Defendant seeks information about where the offenses occurred, the quantities involved, and proof that the substance was cocaine that is beyond the scope of a Bill of Particulars (see also Docket No. 18, Gov't Response at 5). This portion of his motion is denied.
Defendant first seeks various items of pretrial discovery (Docket No. 15, Def. Atty. Aff. ¶¶ 6-46). Although there is no general constitutional right to pretrial discovery in a federal criminal case, a defendant does have a pretrial discovery right with respect to certain matters. For example, under the Fifth Amendment's Due Process Clause, a defendant is entitled to specific exculpatory evidence which is material either to guilt or punishment. In addition, the Government has certain disclosure obligations under Rule 16 of the Federal Rules of Criminal Procedure and the Jencks Act, 18 U.S.C. § 3500. Defendant concedes that he received some discovery from the Government (Docket No. 15, Def. Atty. Aff. ¶ 7; cf. Docket No. 18, Gov't Response at 7). The Government argues that it provided to defendant all discovery required under Rule 16 and will provide additional ...