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United States of America v. Jerome Crosby

June 24, 2011

UNITED STATES OF AMERICA,
v.
JEROME CROSBY, ET AL., DEFENDANTS.



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

Order

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. 8, Aug. 8, 2008).

The instant matters before the Court are the remaining defendants' separate omnibus motions (Docket Nos. 292 (Jerome Crosby), 257 (Patrick Perry), 249 (Wallace Peace), 182 (David Degree), 160 (Sean Williams), 165, 282 (Victor Gaston, latter a joinder motion), 122 (Demetrius Degree), 277, 286 (David Long, latter a joinder motion))*fn1 , and other defendants filed motions joining in these (Docket Nos. 288 (Victor Peoples), 187 (Demetrius Johnson), 277 (Darryl Parker)) which seeks various discovery and disclosure relief. The Court separately decided the omnibus motion for William Putnam (Docket No. 475) and the supplemental discovery notice motion for Wallace Peace (Docket No. 596).

Separately, some defendants have moved to suppress or dismiss counts (or joined in those motions)*fn2 and those motions have been (Docket Nos. 408 (Peace R&R), 419 (Peace Order adopting R&R); 474 (Putnam R&R), 485 (Putnam Order adopting R&R)) or will be addressed in separate Reports and Recommendations (Docket No. 623).

The Government has filed responding papers (Docket No. 314) and oral argument was heard on January 8, 2010. At that argument, evidentiary hearings were ordered for February 8, 2010, on some of the motions (text of minute entry Jan. 8, 2010). This Order awaited the resolution of other defendants' motions.

BACKGROUND

This case involved 30 defendants (29 of whom are now before this Court) arising from a Drug Enforcement Administration and Buffalo Police Department investigation of alleged drug trafficking and related criminal activities of Wallace Peace, Patrick Perry, and Jerome Crosby in the spring of 2008.

The Government characterizes (see Docket No. 314, Gov't Response at 2) this case as arising from an extensive narcotics trafficking investigation, where the grand jury initially returned an 86-count Indictment (Docket No. 1) against 27 defendants. Later that Indictment was superseded by the present 109-count Indictment (Docket No. 190) against 30 defendants.*fn3 Most of the counts (Counts 2-92) in the Superseding Indictment are violations of 21 U.S.C. § 843(b), using a communications facility (a telephone) in causing and facilitating the commission of acts constituting possession with intent to distribute, distribution, and conspiracy to distribute cocaine and cocaine base, listed in the Indictment as a table of defendants, the dates and times of their alleged felonious conversations (hereinafter the "telephone counts").

In April 2008, the Drug Enforcement Administration ("DEA") with the Buffalo Police Department investigated the criminal activities of Peace and his alleged criminal associates (Docket No. 314, Gov't Response at 3). In June and July of that year, Buffalo Police officers and DEA agents obtained New York State eavesdrop orders for telephones used by Peace, Patrick Perry and Crosby, whom the Government contends are the lead defendants in this case (id. at 3, 2). The Government contends that the evidence would show that Peace headed "an active cocaine distribution organization operating in and around Buffalo," that he handled day-to-day distribution as well as directing a group of youths to conduct home invasions and robberies of rival drug dealers (id. at 4). Peace also allegedly trafficked in weapons and contacted other drug suppliers, such as Patrick Perry (id. at 4-5). The investigation revealed that Patrick Perry had a supplier by the name of Jerome Crosby who had been traveling to New York City in June and July 2008 to acquire kilogram quantities of cocaine (id. at 5). Arrest and search warrants were executed on July 29, 2008 (id.).

Some of the defense motions were filed under the initial Indictment and were renewed when the Superseding Indictment was filed.

DISCUSSION

As noted by the Government (Docket No. 314, Gov't Response at 2, 5-6), the various defense motions draw, with varying degrees, upon each other, in particular from the motions of Jerome Crosby (Docket No. 292), Patrick Perry (Docket No. 257), and Wallace Peace (Docket No. 249). They will be addressed generally (since either most defendants have moved for the same or similar relief or joined in co-defendants' motions), with the occasional specific reference to relief that a defendant may have sought. The disposition of these motions will be similar to the decision rendered on Putnam's motion (Docket No. 475). Also, where defendants who have entered pleas of guilty made a motion that was joined by joined by defendants still in the case, the latter defendant will be noted.

I. Bill of Particulars

First, most of the defendants move for the filing of Bills of Particulars as to their respective roles in this case. For example, Wiley contends that he is alleged in four telephone counts where each of these calls were innocent conversations. The Government rejects the necessity for Bills, arguing that "very liberal" discovery has been provided to each defendant (and to be provided during the course of this case), the straight forward nature of the case (albeit extensive given the number of defendants named) and that particularization has not been adequately sought and is unnecessary here (Docket No. 314, Gov't Response at 10-16).

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).

As noted in addressing Putnam's Motion granting him particularization (Docket No. 475, Order at 5), Count 1 alleges that the defendants did knowingly, willfully, and unlawfully combine, conspire, and agree together with others, known and unknown, to possess with intent to distribute quantities of cocaine (Docket No. 190, Superseding Indict.). Nowhere does it allege the means, locations (save within this District and "elsewhere"), or the role of any particular defendant (or the unnamed others) in this conspiracy. The next ninety-one counts lists telephone conversations among the named defendants in furtherance of the possession of cocaine for distribution, with subsequent counts alleging individual defendants' possession of weapons while engaging in drug transactions or possession of weapons by convicted felons (id., Counts 93-108), or making financial transactions with proceeds from illegal activities (id., Count 109). Count 1 presents a vague allegation of a conspiracy. Defendants' particularization requests involve unnamed persons and events that occurred outside of this District, two areas of potential surprise at trial.

Upon review of the Indictment, the Court finds that defendants are entitled to a Bill of Particulars as to the identity of known unindicted co-conspirators, the location of events that occurred outside of this District, how any particular telephone conversation alleged in the telephone counts committed, caused, or facilitated the commission of drug felonies; defendants' motions are granted.

II. Discovery

The defendants seek various items of pretrial discovery. Although there is no general constitutional right to pretrial discovery in a federal criminal case, a defendant does have a pretrial discovery right with respect to certain matters. For example, under the Fifth Amendment's due process clause, a defendant is entitled to specific exculpatory evidence which is material either to guilt or punishment. In addition, the Government has certain ...


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