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. 11).
The instant matter before the Court is the defendant Sean McIver's second omnibus motion (Docket No. 51;cf. Docket Nos. 15 (initial motion), 29 (Order), 33 (initial Report & Recommendation), 28 (Order regarding initial motion to suppress)) 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; production of Brady/Giglio material; production of Jencks Act material; and identity of informants. Also before the Court is defendant's motion to suppress physical evidence (Docket No. 51, Def. Atty. Aff. ¶¶ 67-72); that motion will be considered in a separate Report & Recommendation. Defendant also joins in co-defendant's motions (id. ¶ 73), but this is deemed moot since his co-defendant has not moved and has subsequently entered a guilty plea (see Docket Nos. 24-26). This second omnibus motion arises from the filing of a superseding Indictment (Docket No. 30), which added two new charges against defendant, conspiracy from 2005 to March 12, 2009, to distribute drugs and a continuing criminal enterprise conducted during that same period (id. Counts IV, V).
The Government has filed responding papers (Docket Nos. 52, 53) and at oral argument on February 25, 2010, the parties submitted on their respective papers, and the motion was then deemed submitted (text minute entry, Aug. 13, 2009).
Defendant originally was 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 On August 13, 2009, the Government indicated that these charges would be superseded (text minute entry, Aug. 13, 2009), and a superseding Indictment (with new charges described above) was filed on September 3, 2009 (Docket No. 30). The superseding Indictment charged the defendant alone with five counts of unlawful possession of controlled substance. The first count charges McIver with possession of 5 or more grams of crack cocaine on or about February 10, 2009, the second count charges defendant with possession of 50 grams or more of crack cocaine on or about March 12, 2009, while the third count charges defendant with possession of 5 grams or more of crack cocaine on the same day. This Superseded Indictment adds two new counts: Count IV charges defendant with a conspiracy to possess with intent to distribute 50 grams or more of crack cocaine, from in or about 2005 to March 12, 2009, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. Finally, Count V alleges that, beginning in 2005 and continuing up to March 12, 2009, defendant engaged in a Continuing Criminal Enterprise (in that he violated 21 U.S.C. §§ 841(a)(1), 844(a), and 846), all in violation of 21 U.S.C. § 848(a). (Docket No. 30, Superseding Indict.)
Meanwhile this Court filed an Order (Docket No. 29) on the initial omnibus motion, denying defendant's motion for a Bill of Particulars, granting and denying in part his other discovery motions to the extend of production made and offered to be made by the Government.
The only significant difference between this omnibus motion and the initial motion is the fact that defendant must contend with two additional charges. Thus, the disposition of the relief sought in that first motion will continue in considering the second motion.
First, defendant seeks a Bill of Particulars as to Count IV of the quantities of cocaine allegedly possessed, the exact location where the offenses were committed, and whether possession was constructive or actual, and how it was determined that the substance seized was cocaine (Docket No. 51, Def. Atty. Aff. ¶ 5). As for the new Count V, defendant seeks a Bill on whether he was charged as a principal or as an accomplice, the acts or words demonstrating that he occupied a position as an organizer, supervisor or manager of a continuing criminal enterprise, and how it was determined that defendant obtained substantial income and resources from committing the offense described in the Indictment (id. ¶ 6).
The Government responds that either these demands exceed the permissible bounds for a Bill of Particulars or have already been provided (Docket No. 52, Gov't Response at 4). The precise quantities of cocaine involved, the manner the Government determined that the substance was cocaine, the description of all of the actions, words used, income, and distances sought are evidentiary detail beyond the scope of a Bill of Particulars (id. at 6), while discovery produced to date describes for defendant the locations where offenses transpired, precise quantities of cocaine sold or possessed as determined by a forensic scientist (id. at 6 & n.5). As for whether it is alleged that defendant had actual or constructive possession, the Government contends that this seeks to disclose the Government's legal theory and that is beyond the scope of a Bill of Particulars, and the Government is alleging both actual and constructive possession (id. at 7).
As previously stated, 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 and the Government's disclosure (see Docket No. 18, Gov't Response at 3, 5; Docket No. 52, Gov't Response at 3-7), 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 again seeks information about where the offenses occurred, the quantities ...