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) (text Order of Mar. 3, 2010).
The instant matters before the Court are (a) defendant Vincent Giamo's omnibus motion which seeks the following relief: suppression of evidence seized pursuant to a search warrant; suppression of evidence seized pursuant to consent; filing of a Bill of Particulars; production of discovery; production of Brady materials; furnishing the identity of informants; production of Federal Rules of Evidence 404(b) and 807 disclosure; search of Government agents' personnel files; and preservation of evidence (Docket No. 15, motion of Nov. 30, 2010), and (b) defendant Mary Giamo's joinder in that motion (Docket No. 16, motion of Dec. 1, 2010).
The Government has filed responding papers (Docket No. 19), and later supplemented this response regarding the search of personnel records and the request for Federal Rule of Evidence 807 material (Docket No. 26, Gov't Atty. Supp'al Aff. ¶ 2). Argument of this motion was set and later adjourned several times as the parties attempted to resolve this case by plea, but ultimately were unsuccessful (see, e.g., Docket Nos. 22, 23, text minute entries Mar. 16, 2011, Sept. 28, 2011, Oct. 4, 2011). At the last conference in this matter, on October 4, 2011, the parties announced that no resolution was forthcoming and that the motions would need to be decided; the Government then was given until October 18, 2011, to supplement its response and the motions would be deemed submitted as of October 18, 2011 (text minute entry, Oct. 4, 2011).
Defendants are charged in an eight-count Indictment for violations of the Internal Revenue Code, 26 U.S.C. §§ 7201, 7206(2), regarding joint tax returns filed by husband and wife Vincent and Mary Giamo. They are charged with willfully evading payment of income taxes in 2002-2005 by filing fraudulent corporation income tax returns that understated the income from their business, Utopia, by declaring that no income was earned (or that the company lost money) from that business each of these years (Docket No. 1, Indict., Counts I-IV). The Indictment also charges defendants with fraudulently preparing tax returns for these tax years, in violation of I.R.C. § 7206(2) (id., Counts V-VIII).
According to the Government's response to these motions (Docket No. 19, Gov't Response at 1-3), during the years 2000 through 2005, defendants were the sole shareholders of 228 Franklin Street, Inc., doing business as "Utopia," a night club and bar. Mary Giamo was the president of that corporation, while Vincent was vice president (id. at 1). In January 2006, the Internal Revenue Service ("IRS") commenced an investigation of defendants for under-reporting income after agents interviewed the former manager of Utopia. The former manager stated that defendants maintained two sets of books and records for the corporation, one for tax purposes and a second with the true financial status of the corporation (id. at 2). The IRS then sent an undercover agent to talk with defendants when defendants proposed to sell the corporation. The agent recorded the conversation. Defendants discussed the revenue generated by the business. The agent also contacted the broker involved in the sale of the business who stated that Utopia had gross receipts of over $1,000,000. (Id. at 2-3.) Agents then applied for a search warrant of defendants' residence from the undersigned; agents executed this warrant and found two sets of books for the corporation (id. at 3).
Defendants seek a Bill of Particulars. The Government objects to such particularization given the allegations in the Indictment and discovery furnished to date (Docket No. 19, Gov't Response at 10-13).
Rule 7(f) of the Federal Rules of Criminal Procedure provides that the Court may direct the filing of a Bill of Particulars. Technically, a Bill of Particulars is an amplification of the pleadings and not discovery.
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 defendants are not entitled to a Bill of Particulars inasmuch as they are sufficiently advised of the charges against them to allow for the proper preparation of a defense, to avoid surprise at trial, and to protect each of them from double jeopardy.
Defendants next 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 ...