The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
This case was referred to the undersigned by the Hon. William M. Skretny, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #59.
The defendant, Darryl Robinson, along with nineteen others was charged in a twenty-four count Indictment with having violated Title 21, United States Code, Section 846 (Count 1), Title 21, United States Code, Section 963 (Count 2) and Title 21, United States Code, Section 843(b) (Count 11). Dkt. #1. As noted above, the defendant was charged in three separate counts, Counts 1, 2, and 11. Id.
Presently pending before this Court is the defendant's demand for a bill of particulars (Dkt. #128) and the defendant's omnibus motion for discovery (Dkt. #129). The government has filed its response to defendant's demand for a bill of particulars and the defendant's omnibus motion for discovery. Dkt. #236. What follows is this Court's Decision and Order with respect to the defendant's demand for a bill of particulars and the defendant's omnibus motion for discovery.
In eleven separately numbered requests, the defendant seeks the following information with respect to Counts 1 and 2 of the Indictment: (1) the precise date, time and place when the conspiracy began; (2) the exact dates when it is alleged defendant joined and "ended in [sic] the conspiracy"; (3) the dates and locations of any meeting or conversation the government contends will demonstrate when the defendant joined the conspiracy; (4) the precise date, time and place it is alleged the conspiracy ended; (5) the names of all persons alleged to have been part of the conspiracy; (6) the precise manner it is alleged the defendant became a member of the conspiracy; (7) the best available description of "other known and unknown" persons referred to in the Indictment; (8) continuing disclosure of additional information identifying "known and unknown" persons as they become known; (9) the nature of the agreement and if there was more than one agreement, the nature and participants in each; (10) the location and jurisdiction where the conduct of the conspiracy took place; and, (11) identify the controlled substance and specific quantity/weight alleged to be attributed to the defendant. Dkt. #128, pp.1-2.
In addition to the foregoing, with respect to Count 2, the defendant seeks the following information: how the defendant imported into the United States from Canada the alleged controlled substance referred to in Count 2 and the specific quantity/weight alleged to be attributed to the defendant. Id. at pp.2-3. With respect to Count 11 of the Indictment, the defendant asks the government to identify the phone number the call referred to in Count 11 was made from and more specifically, identify who the phone number is registered to and who initiated the call. Id. at p.3. In addition, the defendant asks the government to identify any other phone conversations the government intends to use involving the defendant. Id.
As a threshold matter, in its response the government maintains that defendant Robinson has failed to offer any specific facts, reasons or legal authority, to justify a finding that further particularization is necessary. Dkt. #236, p.7. Specifically, with respect to defendant Robinson's request for particularization as to the exact drug quantities involved in each of the charges, the government asserts that drug weight is "a typical evidentiary matter not subject to particularization on speculation that particulars will prevent a defendant from experiencing some unfair prejudice or future jeopardy." Dkt. #236, p.8. Moreover, the government argues that with the extensive disclosures and discovery produced by the government and the additional information that defendant Robinson will receive in advance of trial, there is no risk of surprise or future jeopardy absent a bill of particulars. Id. Similarly, with respect to defendant Robinson's request for particularization of exact locations where acts in furtherance of the drug conspiracy occurred, the government maintains that that information is also an "evidentiary matter not subject to particularization." Id. Additionally, the government states that, "[d]efendant[ ] know[s] or will know reasonably in advance of trial, all that [he] need[s] to know to adequately prepare for trial." Id.
With respect to defendant Robinson's request for a bill of particulars setting forth the identity of all known and unknown co-conspirators, in its response, the government states that defendant Robinson knows the identity of his charged co-conspirators and "will learn more identities as trial preparations continue, to include disclosure of impeachment and so-called 3500 material." Dkt. #236, p.10. The government adds, "[t]he criminal investigation is continuing, and that investigation could be compromised if we were required to identify persons who might be charged or even questioned. The government likely will not object to later requests for disclosure of the identities of unindicted co-conspirators as trial approaches, however." Id.
In response to defendant's request for a bill of particulars concerning the development of the conspiracies charged in Counts 1 and 2, the government maintains that it is not required to furnish details concerning the formation of a conspiracy, including when and how it was formed and when a particular defendant joined, because those details need not be proven at trial. Dkt. #236, p.10. With respect to defendant's request for detailed information relating to specific overt acts alleged in furtherance of the conspiracies charged in Counts 1 and 2, the government argues that details such as the exact time and place of the overt acts and names of persons present are not properly the subject of a bill of particulars. Id. at p.11.
Although the government does not specifically address defendant's requests for information relating to Count 11, to wit, who the phone number is registered to and who initiated the call, the government states that, "[t]he information in the Indictment, coupled with the discovery materials, which includes transcripts of defendant['s] intercepted conversations, many narrative reports of the investigation, more than adequately inform defendant[ ] of the facts essential to the pending charges." Id. at p.12. Finally, in its conclusion concerning defendant's request for a bill of particulars, the government states, "[b]ecause defendant will be provided with full discovery, exculpatory and impeachment material, a witness list, and exhibit lists, including 3500 materials, well in advance of trial, [he] will not be surprised by the evidence against [him] or be subject to future jeopardy in a way that might otherwise justify ordering the particulars sought." Id. at p.13.
It has become axiomatic that the function of a bill of particulars is to apprise a defendant of the essential facts of the crime for which he has been charged. United States v. Salazar, 485 F.2d 1272, 1277-78 (2d Cir. 1973); cert. denied, 415 U.S. 985 (1974); Wong Tai v. United States, 273 U.S. 77 (1927). The charges in the Indictment, along with the discovery materials provided by the government, clearly inform the defendant of the essential facts of the crimes charged. As a result, the defendant is not entitled to, nor is he in need of, the "particulars" being sought for that purpose.
A bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused." United States v. Feola, 651 F. Supp. 1068, 1132 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (2d Cir.) (mem.), cert. denied, 493 U.S. 834, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989); see also United States v. Leonelli, 428 F. Supp. 880, 882 (S.D.N.Y. 1977). "Whether to grant a bill of particulars rests within the sound discretion of the district court." United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984) (citing United States v. Burgin, 621 F.2d 1352, 1358-59 (5th Cir.), cert. denied, 449 U.S. 1015, 101 S.Ct. 574, 66 L.Ed.2d 474 (1980)); see also [United States v.] Bortnovsky, 820 F.2d  at 574 [(2d Cir. 1987)]. "Acquisition of evidentiary detail is not the function of the bill of particulars." Hemphill v. United States, 392 F.2d 45, 49 (8th Cir.), cert. denied, 393 U.S. 877, 89 S.Ct. 176, 21 L.Ed.2d 149 (1968).
United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990); see also United States v. Chen, 378 F.3d 151, 163 (2d Cir.), cert. denied, 543 U.S. 994 (2004); United States v. Porter, No. 06-1957, 2007 WL 4103679 (2d Cir. Nov. 19, 2007), cert. denied, 128 S.Ct. 1690 (2008).
Accordingly, for the foregoing reasons, defendant Robinson's demand for a bill of particulars (Dkt. #128) is denied.
Discovery Pursuant to Rule 16
In twenty-three separately numbered requests, defendant Robinson requests that the following documents and information be provided.
1. Defendant's Statements
The defendant requests copies of any written or recorded statements made by him, as well as the substance of any oral statements he made which the government intends to offer in evidence at trial. Moreover, the defendant seeks any written summaries or hand written notes of any oral statements made by him. Dkt. #129, p.5. In its response, the government states in pertinent part, "[s]ince the Indictment, the United States has complied, and intends to continue to comply with the requirements of Rule 16. To that end, the United States has provided comprehensive voluntary discovery, including, but not limited to, defendant's statements ..." Dkt. #236, p.13. Based on the representations made by counsel for the government, the defendant's request is denied as moot.
2. Reports of Scientific Tests or Examinations
By this request the defendant seeks the reports of all tests and examinations conducted in this case, including but not limited to, laboratory testing of any controlled substances. Dkt. #129, p.5. In its response, the government states,
[t]he United States will disclose all materials that are discoverable under Fed.R.Crim.P. 16(a)(1)(F), which are in the possession of the government. The United States has laboratory reports concerning the forensic analysis of seized controlled substances and has complied with Fed.R.Crim.P. 16(a)(1)(G) and Fed.R.Evid. 702, 703, and 705. The government timely will provide the chemists' credentials and methods of analysis, to permit evaluation and cross-examination by defendants, in the event that a defendant declines to stipulate that the controlled substances are as they have been identified during chemical analysis.
Dkt. #236, p.18. Based on the representations made by the government that it has and will continue to comply with its disclosure obligations as set forth in the Federal Rules of Criminal Procedure and the Federal Rules of Evidence, the defendant's request is denied as moot.
3. Documents, Statements, Reports, Tangible Evidence
Pursuant to Brady v. Maryland, 373 U.S. 83 (1986) and United States v. Agurs, 427 U.S. 97 (1976), the defendant requests that all documents, statements, agents' reports and tangible evidence favorable to the defendant on the issue of guilt or which affects the credibility of the government's case be produced. Dkt. #129, p.5. The Court notes that the defendant makes a separate request for Brady material and that request will be addressed below. As noted above, the government maintains that it has and continues to comply with the requirements set forth in Rule 16 of the Federal Rules of Criminal Procedure. Moreover, the government states that it has provided comprehensive discovery including, reports and laboratory reports. Based on the representations made by counsel for the government, the defendant's request is denied as moot.
4. Prior Record/Other Act Evidence
By this request the defendant is seeking all evidence, documents, records of judgments and convictions, information pertaining to any prior arrests, and prior bad acts. Dkt. #129, p.5. The Court notes that the defendant makes a separate request pursuant to Federal Rules of Evidence 403, 404(b) and 609 and that request will be addressed below. In its response, the government states that it "expects to timely disclose evidence that might fall within the ambit of Fed.R. Evid. 404(b), 608(d) and 609. The government intends to seek to introduce at trial evidence of this activity, as well as similar activity." Dkt. #236, p.23. More specifically, the government states,
The government will disclose evidence in its possession that might fall within Fed.R.Evid. 404(b), 607, 608 and 609, and provide notice of its intention to rely upon such evidence when ordered to do so by the trial court. Specifically, at this time, the government is unaware of any evidence within the ambit of Fed.R.Evid. 609, which could be used at trial to impeach the credibility of defendant[ ] upon cross examination. With respect to the disclosure of evidence which falls within Fed.R.Evid. 608, the government notes that it has no obligation to provide a defendant with any information that could be used to impeach him pursuant to Rule 608, should he elect to testify. . . . Furthermore, the government preliminarily notifies defendant[ ] that it intends to introduce at trial, pursuant to Rule 404(b), all prior criminal conduct [sic] acts or wrongs to show proof of a defendant's motive, opportunity, intent, preparation, plan, knowledge, identity, and the absence of mistake or accident. This notice is only preliminary in nature and is not intended to foreclose the government from relying on other Rule 404(b) evidence should it deem the introduction of such evidence appropriate at trial. The government will provide defendant[ ] with more definitive notice of its intent to rely on Rule 404(b) evidence when directed to do so by the trial judge, or during trial, if pretrial notice is excused for good cause.
Accordingly, based on the representations made by counsel for the government concerning notice under Rule 404(b) and its disclosure obligations pursuant to Rule 608 and 609, defendant's request is denied as moot.
Pursuant to Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure, the defendant seeks the disclosure of all evidence seized as a result of any search conducted, as well as copies of each search warrant, search warrant application, supporting affidavit and inventory return. Dkt. #129, p.6. In addition, the defendant requests a copy of each voice recording, transcript or record with respect to any oral search warrant application. Id.
As noted above, in its response, the government states that it has and continues to comply with its discovery obligations pursuant to Rule 16 of the Federal Rules of Criminal Procedure. Indeed, the government states that it has provided "comprehensive voluntary discovery, including, but not limited to, defendant[']s[ ] statements, reports, photographs, recordings of court-authorized intercepted communications, criminal records of each defendant to that defendant, transcripts of intercepted communications, laboratory reports, and eyewitness identifications." Dkt. #236, p.14. Moreover, the government advises that to the extent it identifies any other evidence which falls within the scope of Rule 16, it will provide that evidence to defense counsel. Id.
Based on the representations made by counsel for the government that it has and will continue to comply with its discovery obligations under Rule 16 of the Federal Rules of Criminal Procedure, defendant's request is denied as moot.
6. Agent's Reports, Notes, Memos
By this request, the defendant is seeking the disclosure of all arrest reports, investigator's notes, memos from arresting officers, sworn statements, and prosecution reports pertaining to defendant Robinson. Dkt. #129, p.6. The government opposes the defendant's motion which seeks a "blanket order requiring disclosure of all documents that even defendants concede are exempted [sic] from or not subject to disclosure under Rule 16 and that are subject to disclosure, if at all, only later as 3500 materials." Dkt. #236, pp.19-20. The government further notes that it is the trial court's practice to set a deadline for disclosure of Rule 3500 and related materials. Furthermore, the government argues that absent a showing of good cause, the usual practice established by the trial court should be followed. Id. at p.20.
As will be discussed in greater detail below, with respect to impeachment material that does not rise to the level of being Brady material, such as Jencks statements, the prosecution is not required to disclose and turn over such statements until after the witness has completed his direct testimony. See 18 U.S.C. § 3500; Fed. R. Crim. P. 26.2; In re United States, 834 F.2d 283 (2d Cir. 1987). However, if the government has adopted a policy of turning such materials over to the defendant prior to trial, the government shall comply with that policy; or in the alternative, produce such materials in accordance with the scheduling order to be issued by the trial judge.
Based on the representations made by counsel for the government, that it will comply with the trial judge's pretrial order concerning the disclosure of witnesses statements, the defendant's request is denied. Notwithstanding the foregoing, the government is hereby directed to comply with the Second Circuit Court of Appeals' holding in United States v. Coppa, 267 F.3d 132 (2d Cir. 2001) and United States v. ...