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, Oct. 29, 2010, amending Docket No. 2).
The instant matter before the court is defendant's omnibus motion (Docket No. 159) which seeks the following relief: inspection of Grand Jury minutes; filing of a Bill of Particulars; discovery; production of Brady/Giglio material; production of Jencks Act material; identity of informants.
The Government has filed responding papers (Docket No. 161), wherein the Government seeks reciprocal discovery (id. at 37) and oral argument was heard on December 19, 2011, and this matter was submitted.
Defendant is charged in a single count Indictment of an unlawful conspiracy to possess heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) (Docket No. 1, Indict.).
Defendant first moves to inspect the Grand Jury minutes and to move to dismiss the Indictment under New York Criminal Procedure Law § 210.36 arguing that the Grand Jury proceedings failed to comply with New York Criminal Procedure Law article 190 (Docket No. 159, Def. Atty. Affirm. ¶¶ 4, 5-17; cf. Docket No. 161, Gov't Response at 2, 4). This is a federal prosecution, however, governed by federal law and procedures. Grand Jury proceedings are presumed lawful and regular, Hamlin v. United States, 418 U.S. 87, 139 n.23 (1974); United States v. R Enterp., Inc., 498 U.S. 292 (1991) (id. at 2-3). Federal Rule of Criminal Procedure 6(e)(2) precludes disclosure of Grand Jury proceedings save in narrow exceptional circumstances not applicable here (id. at 3). The Court may authorize this disclosure "at a time, in a manner, and subject to any other conditions that it directs," Fed. R. Cr. P. 6(e)(2). Defendant has to show that they have a particularized need for disclosure that outweighs the Government's interest in maintaining Grand Jury secrecy, United States v. Alexander, 860 F.2d 508, 513 (2d Cir. 1988); see United States v. Twersky, No. S2 92 Cr. 1082, 1994 U.S. Dist. LEXIS 8744, at *14-16 (S.D.N.Y. June 29, 1994) (granting in camera review of Grand Jury minutes and reserving decision on motion to dismiss Indictment). A defendant must state a particularized need for these transcripts "in order to present a vigorous defense" which outweighs the principle of Grand Jury secrecy, Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959). There are occasions "when the trial judge may in the exercise of his discretion order the minutes of a grand jury witness produced for use on his cross-examination at trial. Certainly 'disclosure is wholly proper where the ends of justice require it,'" Pittsburgh Plate Glass, supra, 360 U.S. at 400 (quoting United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234 (1940)). The burden is upon the defendant to show a particularized need exists that outweighs the policy of Grand Jury secrecy, id. Particularized need includes impeachment of witness at trial, refresh recollection, and testing witness credibility, United States v. Proctor & Gamble Co., 356 U.S. 677, 683 (1958). "A review of grand jury minutes is rarely permitted without specific factual allegations of government misconduct," Torres, supra, 901 F.2d at 233, and (even if disclosed) "as a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants," Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988); Torres, supra, 901 F.2d at 233.
As was held in the Pittsburgh Plate Glass case, supra, 360 U.S. at 400, defendant here has not shown Government misconduct or particularized need to warrant inspection of the Grand Jury minutes (id. at 3-4); defendant's motion to inspect is denied.
Defendant next seeks a Bill of Particulars, namely the quantity of heroin base allegedly in his possession, the place where possessed, and whether possession is alleged to be actual or constructive (Docket No. 159, Def. Atty. Affirm. ¶19).
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).
Upon review of the Indictment, this 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 ...