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, Vivian James (hereinafter, "defendant" or "James"), along with nineteen others was charged in a twenty-four count Indictment with having violated Title 21, United States Code, Section 846, Title 21, United States Code, Section 963 and Title 21, United States Code, Section 843(b). Dkt. #1. The defendant was charged in four separate counts, Counts 1, 2, 7 and 8. Id.
Presently pending before this Court is the defendant's omnibus motion for discovery, various motions to suppress evidence and statements, and a motion to dismiss the Indictment for multiplicity. Dkt. #155. The government has filed its response to defendant's omnibus motion for discovery, the motions to suppress evidence and statements, and the motion to dismiss the Indictment, as well as a motion for reciprocal discovery. Dkt. #236. This Court's Decision and Order and/or Report, Recommendation and Order with respect to defendant's motions to suppress evidence and statements, and the motion to dismiss the Indictment will be addressed and filed separately. What follows is this Court's Decision and Order with respect to the defendant's omnibus motion for discovery.
With respect to Count 1 of the Indictment, the defendant seeks the following information: the date the offense was committed; the location where the offense was committed; and, the alleged criminal conduct. Dkt. #155, p.12. With respect to Count 2 of the Indictment, the defendant seeks the following information: the date the offense was committed; the location where the offense was committed, specifically, the port of entry; the alleged criminal conduct; the precise date, time and place when the conspiracy began; the precise date, time and place when the conspiracy ended; the names of all persons alleged to have been part of the conspiracy; for each overt act alleged in the Indictment, the precise date, time and place of the alleged conduct; the action undertaken by James to possess and/or distribute the controlled substances, including dates and location; specify whether or not James actually possessed or constructively possessed the alleged controlled substance; the weight of the controlled substances; specify whether James delivered or transferred the controlled substances to any person or group of persons; specify whether James consummated any sale of the alleged controlled substance; specify the location where James allegedly possessed the controlled substances; for each overt act, state the substance of the defendant's conduct; and, identify any unindicted co-conspirators. Dkt. #155, pp.12-13.
As a threshold matter, in its response the government maintains that defendant James has failed to offer any specific facts, reasons or legal authority, to justify a finding that further particularization is necessary. Specifically, with respect to defendant James' 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 or 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 James 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 James's request for particularization of exact locations where acts in furtherance of the drug conspiracy occurred, the government maintains that that information is 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.
As noted above, the defendant seeks information as to whether he has been charged with actual or constructive possession of controlled substances, whether he was charged as a principal or an aider and abettor and other facts and information supporting the various legal theories of prosecution. In its response, the government states, that because legal theories and evidentiary matters are not proper subjects for a bill of particulars, that portion of defendant's motion seeking a bill of particulars should be denied. With respect to defendant James' request for a bill of particulars revealing the identity of any unindicted co-conspirators, the government states that defendant James 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. Moreover, 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. Accordingly, defendant's request for a bill of particulars is denied.
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's request for a bill or particulars is denied.
By this broad request the defendant seeks the disclosure of (a) any oral statement made by the defendant; (b) any written or recorded statements; (c) the defendant's prior criminal history; (d) documents or tangible objects; (e) all physical examinations, mental examinations, scientific reports, tests or experiments; and, (e) a written summary of any testimony the government intends to use under Rules 702, 703 or 705 of the Federal Rules of Evidence and any expert witnesses qualifications. Dkt. #155, pp.13-16. In addition to the foregoing, within his request for discovery, the defendant also seeks the production of other documents relating to the Title III electronic surveillance, including applications, Orders, ten day reports, and minimization requirements. Id. at p.16. The defendant also requests the disclosure of photographs and video recordings made in connection with this investigation "derived from the pole camera overlooking Defendant Abbey's business location on Bailey Avenue in the City of Buffalo," as well as, any physical evidence collected or seized in connection with this investigation. Id. Finally, the defendant seeks the disclosure of "favorable information," including Jencks Act and Giglio material. Id. at pp.17-20.
Defendant's Statements - Oral and Written
The defendant requests copies of any written or recorded statements made by him, as well as the substance of any oral statements he made. Dkt. #155, pp.13-14. 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.
Defendant's Prior Criminal Record
By this request the defendant is seeking a copy of his prior criminal record. Dkt. #155, p.14. 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. The government states in footnote three of its response, "[t]he government provided a copy of the criminal history for each defendant when counsel appeared in court on that defendant's behalf." Dkt. #236, p.14, n.3. Accordingly, based on the representations made by counsel for the government concerning the defendant's prior criminal record, defendant's request is denied as moot.
Documents and Tangible Objects
In this request, the defendant states, "[u]pon request, the government must permit James to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items." Dkt. #155, p.14. 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, the United States has provided comprehensive voluntary discovery, including, but not limited to, defendants' 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. ...