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United States v. Parmer

June 9, 2010

THE UNITED STATES OF AMERICA
v.
EDWARD PARMER A/K/A NED, DEFENDANT.



The opinion of the court was delivered by: Hon. Hugh B. Scott

DECISION & ORDER

Before the Court is the defendant's omnibus motions (Docket Nos. 21 and 28) seeking the following relief: discovery, a bill of particulars, disclosure of Brady and Jencks material, identification of informants, disclosure of information under Rules 404, 608 and 609, and preservation of rough notes.

Background

On March 5, 2009, the Grand Jury for the Western District of New York indicted the defendant, Edward Parmer, aka Ned ("Parmer"), charging that he possessed cocaine, with intention to distribute, in violation of 21 U.S.C. §841(a)(1) and §841(b)(1)(B) on March 12, 2008 [Count I]; and on April 1, 2008 [Count II]. (Docket No. 1). Several of the documents produced by the government reflected that the defendant was involved in drug trafficking on March 21, 2008. (Docket No. 21 at ¶ 8). On March 4, 2010, the Grand Jury for the Western District of New York issued a Superceding Indictment charging Parmer with possession with the intent to distribute cocaine in violation of 21 U.S.C. §841(a)(1) and §841(b)(1)(B) on March 21, 2008 [Count I]; and on April 1, 2008 [Count II]. (Docket No. 26).

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).

Although the government now represents that the dates of the alleged transactions involving the defendant are correctly stated in the Superceding Indictment as March 21, 2008 and April 1, 2008, several of the documents refer to defendant's conduct on March 12, 2008. (See, for example, Docket No. 33-3 at page 2). In light of the conflicting documents relating to the dates of the alleged conduct by the defendant, a bill of particulars is necessary in this case to permit the defendant to prepare a defense and to prevent prejudicial surprise at trial. Within 20 days of the date of this Order, the government shall provide the following particulars:

a. A description, including the time and location of any purported drug trafficking activity on the part of the defendant on March 21, 2008 as alleged in the Superceding Indictment. In addition, the government shall produce all corresponding documents and reports relating to such activity on that date as are discoverable under Rules 12 and 16 of the Federal Rules of Criminal Procedure. The government need not disclose the identity of any confidential informant in providing the particularization.

b. A description, including the time and location of any purported drug trafficking activity on the part of the defendant on April 1, 2008 as alleged in the Superceding Indictment. In addition, the government shall produce all corresponding documents and reports relating to such activity on that date as are discoverable under Rules 12 and 16 of the Federal Rules of Criminal Procedure. The government need not disclose the identity of any confidential informant in providing the particularization.

c. The government shall specify the quantity of cocaine base and/or any other narcotic allegedly involved in the alleged drug trafficking transaction involving the defendant on March 21, 2008 and April 1, 2008.

d. The government shall specify the total quantity of cocaine base the defendant is alleged to be directly involved with, including any relevant conduct on March 12, 2008 or other dates upon which the government may rely with respect to consideration affecting plea discussions or sentencing in this case.

Discovery

The defendant's motion papers list various items of pretrial discovery. The defendant asserts that the government has provided copies of Drug Enforcement Agency ("DEA") Exhibits Nos. 6 and 8, but not Exhibit 7. Also, the defendant asserts that the government has produced audio recordings designated as N14, N15, N16, N17, N19 and N20, but not N18. (Docket No. 21 at ¶6(a) and ¶6(b)). The government responds that an inquiry has been made to determine if they are related to this case, and that they will be provided to the defendant unless there is something that exempts them from disclosure or requires the government to seek a protective order. (Docket No. 22 at page 2). If it has not already been done, the government is directed to produce these items to the defendant or advise the defendant of any basis upon which disclosure is exempt.

The defendant also seeks a variety of photographs and other items. (Docket No. 21 at page 2-3). During oral argument on May 12, 2010, the government represented that the defendant has been provided with full discovery. The defendant has not ...


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