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United States v. Greenaway

February 16, 2010

UNITED STATES OF AMERICA,
v.
COLIN GREENAWAY ALSO KNOWN AS WAYNE SMART, DEFENDANT.



The opinion of the court was delivered by: Hugh B. Scott United States Magistrate Judge Western District of New York

Hon. Hugh B. Scott

Decision & Order

Before the Court is the defendant's omnibus motions seeking various relief, including the suppression of evidence (Docket No. 112).*fn1

Background

In a Superceding Indictment issued on October 30, 2008, defendant Colin Greenaway also known as Wayne Smart (referred to herein as "Smart"), was charged with conspiracy to possess and distribute methylenedioxymethamphetamine ("MDMA") in violation of 21 U.S.C. §841(a)(1) and (b)(1)(C) [Count 1]; unlawful use and possession of a firearm in connection with a drug trafficking crime in violation of 18 U.S.C. §924(c)(1)(A)(i)[Count 2]; unlawful possession with intent to distribute MDMA in violation of 21 U.S.C. §841(a)(1) and (b)(1)(C) [Count 3]; carrying and brandishing a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. §924(c)(1)(A)(ii) and (2) [Count 4]; assaulting and resisting law enforcement officers while engaged in the performance of their official duties in violation of 18 U.S.C. §111 (a)(1), §111(b) and §2 [Count 5]; using and brandishing a firearm in relation to a crime of violence in violation of 18 U.S.C. §924(c)(1)(A) and §2 [Count 6]; destruction of property (marijuana) preventing and impairing the government from taking such property into its custody and control in violation of 18 U.S.C. §2232(a) [Count 7]; and forfeiture of the various firearms and ammunition seized pursuant to 19USC §924(d)[Count 8].

Discovery

The defendant seeks pretrial discovery in this matter. The defendant's motion lists numerous boilerplate requests and acknowledges that significant voluntary discovery has taken place in this case. At oral argument, the defendant did not identify any particular item of discovery as being outstanding. Thus, the voluntary discovery produced by the government appears to have been sufficient in this case.

Rule 12 Notice

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 to the instant motion provides notice pursuant to Rule 12 (Docket No. 113 at pages 8-9). The defendants have not asserted that this notice is inadequate.

Bill of Particulars

The defendant seeks a 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). Notwithstanding the above, there is a special concern for particularization in conspiracy cases. U.S. v. Davidoff, 845 F.2d 1151 (2d Cir. 1988).

Upon review of the indictment and the information already provided, the Court finds that the defendant is not otherwise entitled to a bill of particulars inasmuch as each 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.

Brady and Jencks Material

The defendant also seeks the disclosure of all potentially exculpatory materials, including information to be used for the impeachment of the government's witnesses, as required under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny. Brady material, as those cases have come to define it, includes all evidence which may be favorable to the defendant and material to the issue of guilt or punishment. Such evidence includes "[a]ny and all records and/or information which might be helpful or useful to the defense in impeaching ... [and] [a]ny and all ...


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