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. 13).
The instant matter before the Court are (a) the Defendant's omnibus motion which seeks the following relief: filing of a Bill of Particulars; production of expert disclosure; discovery; Federal Rules of Evidence 403, 404(b), and 609 discovery; Federal Rules of Evidence 702, 703, and 705 discovery; disclosure of Brady and Giglio materials; disclosure of informants; early disclosure of Jencks Act material (Docket No 17); and (b) defendant's motion to return physical evidence (Docket No. 18). Separately, defendant moved to suppress statements and evidence (Docket No. 17) and to dismiss counts of the Indictment (Docket No. 18); these motions will be considered together in a separate Report & Recommendation (Docket No. 24).
The Government has filed responding papers (Docket No. 20) and, at a status conference, the motions were deemed submitted on April 28, 2011 (Docket No. 23).
Defendant is charged with one count of smuggling a Honda Civic from Canada into the United States, in violation of 18 U.S.C. § 545, and making a false statement to officers of the United States Customs and Border Protection, in violation of 18 U.S.C. § 1001(a)(2) (Docket No. 12, Indict.). The Indictment also alleges a criminal forfeiture of any and all property involved in the first count, namely the 1997 Honda Civic (id.). According to the Government (Docket No. 20, Gov't Response at 2-3), on February 22, 2010, defendant attempted to enter the United States from Canada via the Rainbow Bridge Port of Entry while driving a 1997 Honda Civic with New Jersey dealer license plates. As noted by the Government,
"Lee was initially questioned by a Customs and Border Protection (CBP) Officer at the primary inspection lane and claimed to be the owner of the vehicle. Lee was referred to secondary inspection due to the license plates being listed as stolen. While at secondary inspection, Lee could not produce any documentation regarding the vehicle. A record check of the Vehicle Identification Number (VIN) revealed that the 1997 Honda Civic was registered to an individual in Canada.
"While at secondary inspection, Lee was asked if he was importing anything into the United States and if he was transporting any currency greater than $10,000 (U.S. Dollar equivalent). Lee gave negative responses to these inquires [sic] and executed Customs Declaration Form 6059B with the same negative declarations. CBP Officers then found the total sum of $9,850 (U.S.
Dollars) and $565 (Canadian Dollars) in Lee's possession. CBP Officers then contacted agents from Immigration and Customs Enforcement (ICE), who responded to the port and also interviewed Lee. Upon being provided his Miranda warnings by the ICE agents, Lee voluntarily agreed to waive those rights and speak to the agents about the vehicle in question and his travel to Canada. Upon concluding this interview, Lee was charged with the above-noted criminal violations." (id.) Among the items seized were Canadian dealer plates (see Docket No. 18, Def. Atty. Decl. at 5).
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); see United States v. Persico, 621 F. Supp. 842, 868 (S.D.N.Y. 1985) (citing Won Tai v. United States, 273 U.S. 77, 82 (1927)). 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 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.
Pursuant to Rule 16(a)(1)(E), defendant seeks a written summary of any expert testimony that the government intends to use in its direct case, along with the expert's qualifications, and the basis for the expert's opinion, whether or not the expert files a report. He also seeks disclosure of any hearsay evidence intended to be introduced by the Government at trial (Docket No. 17, Def. Motion at 12).
The Government states that it will comply with defense requests regarding expert disclosure (Docket No. 20, Gov't Response at 12). ...