The opinion of the court was delivered by: Hon. Hugh B. Scott
This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(C) (Docket No. 15).
The instant matters before the Court are the defense omnibus motions from (a) Montu Lighten (Docket No. 21*fn1 ) seeking various discovery relief (namely discovery; Brady; production of Federal Rules of Evidence 404(b), 608, 609 materials; Jencks Act/disclosure of witness statements; preservation of rough notes; leave to make additional motions) and from (b) Amanda Goss (Docket No. 52*fn2 ) seeking to exclude statements of non-testifying co-conspirators; filing of a Bill of Particulars; to reveal informants; production of discovery and Brady materials; production of Rules 404(b), 608, 609 materials; disclosure of witness statements/Jencks Act; preservation of rough notes; production of grand jury transcripts; severance; an audibility hearing; voir dire conducted outside the presence of the jury; and leave to make additional motions. Goss also joins in co-defendant's motion (id. at 43). Also before this Court is the Government's motion for reciprocal discovery from both defendants (Docket No. 22, Gov't Response to Lighten at 13-14; Docket No. 54, Gov't Response to Goss at 18-19). Separately, the defendants each have moved to suppress evidence (or joined in those motions) and those motions are addressed in a separate Report and Recommendation (Docket No. 60).
As for Goss, the latest briefing schedule had her motion due by December 22, 2009; the Government's response by January 8, 2010; and oral argument on January 26, 2010 (Docket No. 47; text entry of minutes, Oct. 30, 2009; text notice, Jan. 7, 2010). Post-evidentiary hearing argument of Lighten's motion also was held on January 26, 2010 (Docket No. 48; text notice, Jan. 7, 2010).
Defendants were charged with conspiracy to distribute 5 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), (b)(1)(C), and possession of 5 grams or more of cocaine base, in violation of 21 U.S.C. § 844(a), on April 8, 2008 (Docket No. 14, Indict., Count I). They were also charged with unlawful possession with intent to distribute of 5 grams or more of that substance (or a mixture and substance containing cocaine), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), possession of that substance, in violation of 21 U.S.C. § 844(a) and 18 U.S.C. § 2 (id., Counts II, IV, III).
Next, Goss moves for the filing of a Bill of Particular as to her role in this case (Docket No. 52, Goss Motion at 7-11). The Government rejects this, arguing that "very liberal" discovery has been provided to Goss, the straight forward nature of the case and that particularization is unnecessary here (Docket No. 54, Gov't Response to Goss at 8).
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). Notwithstanding the above, there is a special concern for particularization in conspiracy cases. United States v. Davidoff, 845 F.2d 1151 (2d Cir. 1988).
Upon review of the Indictment, the Court finds that Goss is not entitled to a Bill of Particulars inasmuch as she is sufficiently advised of the charges against her to allow for the proper preparation of a defense, to avoid surprise at trial, and to protect her from double jeopardy.
II. Revelation of Identity of Informants
Goss next seeks disclosure of the identity of the informants that lead to the stopping of her vehicle and post-arrest search warrant (Docket No. 52, at 11-17). The Government objects and states that this additional production is unwarranted (Docket No. 54, Gov't Response to Goss at 10-11). Any identification or impeachment information about informants will be produced when the Government furnishes its Jencks Act materials (id. at 11).
The Government is not required to furnish the identities of informants unless it is essential to the defense. Roviaro v. United States, 353 U.S. 52, 60-61 (1957); United States v. Saa, 859 F.2d 1067, 1073 (2d Cir.), cert. denied, 489 U.S. 1089 (1988). Nor does Rule 16 require the Government to disclose the names of witnesses prior to trial. United States v. Bejasa, 904 F.2d 137, 139 (2d Cir.), cert. denied, 498 U.S. 921 (1990). The moving defendants have not established that the pre-trial disclosure of the identities of any informants is essential to his defense. This request is denied.
Defendants both seek various items of pretrial discovery (Docket No. 21, Lighten Motion at 3-4; Docket No. 52, Goss Motion at 17-24). 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.
The Government contends that it fulfilled its discovery obligations to defendants (Docket No. 22, Gov't Response to Lighten at 6; Docket No. 54, Gov't Response to Goss at 11-12).
Pursuant to Rule 16(a)(1)(A), defendants seek any written or oral statements made by the defendants which are within the possession custody or control of the Government, or which through the exercise of due diligence, may become known to the Government.
Rule 16(a)(1)(A) provides that, upon request, the Government must disclose any written or recorded statements made by a defendant, before or after arrest, in response to interrogation by any person known to the defendant to be a Government agent; and recorded testimony of the defendant before the grand jury which relates to the offense charged.*fn3 Failure of the Government to disclose a defendant's statements to a ...