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United States of America v. Rodney Hill

March 23, 2012


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. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #3.


The defendant, Pauline Manuel ("Manuel"), along with nineteen others, is charged in a multi-count Superseding Indictment (Dkt. #296) with conspiracy to possess with intent to distribute cocaine and cocaine base (Count 3) and five counts of using a telephone to facilitate possession with intent to distribute and distribution of controlled substances (Counts 55-59). Presently pending are Manuel's dispositive and non-dispositive motions with respect to the Superseding Indictment. Dkt. ##355. What follows is this Court's Decision and Order with respect to defendant Manuel's nondispositive discovery motions. This Court's Report, Recommendation and Order with respect to Manuel's motion to dismiss the Superseding Indictment; motion to dismiss Count 3, motion to dismiss Counts 55-59; motion to suppress wiretap evidence and motion for a Franks hearing was filed on March 16, 2012. Dkt. #423.


Defendant Manuel and twenty-six others were charged in a Criminal Complaint on December 15, 2009 with cocaine-related drug trafficking offenses in violation of Title 21, United States Code, Sections 841(a)(1), 843(b) and 846. The Criminal Complaint, authorized by the undersigned, was supported by a 281-page affidavit of Federal Bureau of Investigation ("FBI") Special Agent Vanessa Paris alleging, inter alia, that six months of court-authorized intercepted telephone communications, controlled purchases, informant information and other evidence established the defendants' long-standing participation in the trafficking of multi-kilogram quantities of cocaine and cocaine base.

Defendant Manuel was among the ten defendants indicted by a Federal Grand Jury on June 29, 2010. Dkt. #1. Thereafter, on May 3, 2011, a Federal Grand Jury returned a Superseding Indictment against Manuel and nineteen defendants. Dkt. #296. Following her July 7, 2011 arraignment, defendant Manuel continued to be released on bail. Defendant Manuel filed pretrial motions on November 18, 2011 (Dkt. #355) and the government filed its opposition to Manuel's pretrial motions on December 9, 2011 (Dkt. #376). Oral argument on defendant Manuel's motions was held on December 14, 2011.


Bill of Particulars

The defendant seeks the following information with respect to Count 3 of the Superseding Indictment: the exact date defendant Manuel joined the alleged conspiracy; the manner in which she joined the conspiracy; the identity of all known but unnamed co-conspirators; each individual with which defendant Manuel had an agreement with respect to the conspiratorial goal; whether defendant Manuel's knowledge of the possession and distribution of the controlled substances is actual or constructive; exactly how defendant Manuel "knew" of the possession and/or distribution of cocaine; the specific locations within the Western District of New York in which defendant Manuel engaged in the conspiracy; the other unnamed locations in which the conspiracy took place; the precise conduct of defendant Manuel alleged to establish the conspiracy elements of combination and agreement; the quality of the cocaine possessed and distributed; the basis for attributing the entire amount of controlled substances listed in Count 3 to defendant Manuel; specify the overt acts of defendants intended to be proven at trial; the exact date, time and place these alleged offenses occurred; exact amount of cocaine and cocaine base involved in the alleged distribution; the identity of the alleged purchasers including any confidential informant and/or police officers or others acting on behalf of the government. Dkt. #355, pp.6-7.

With respect to Counts 55-59 of the Superseding Indictment, defendant Manuel seeks the following information: the phone company and owner(s) of the phone used; the exact date, time and place the calls were alleged to be made; the name and owner of the phone; and the name of any individual present when the phone was used and whether the individual was a government employee, agent or informant; as well as information concerning the conspiracy. Id. at pp.8-9.

In its response to defendant Manuel's request for particularization of the conspiracy charge, the government asserts that what the defendant seeks is a bill of particulars regarding the development of and the defendant's involvement throughout the conspiracy. In addition, the government asserts that it should not be required to furnish particulars relating to the formation of a conspiracy, including when and how it was formed and when a particular defendant joined, because such details need not be proven at trial. Finally, the government states,

[b]ecause the defendant will have full discovery, exculpatory and impeachment material, a witness list, exhibit lists, including § 3500 materials, well in advance of the trial, he [sic] will not be surprised by the evidence against him [sic] or be subject to future jeopardy in a way he [sic] might otherwise justify ordering any of the particulars that he [sic] requests.

Dkt. #376, p.7. In response to defendant Manuel's request for particularization concerning Counts 55-59, the government states, [w]ith respect to particulars concerning the telephone calls, the calls themselves have been provided. Moreover, all calls are described further in a 281 page criminal complaint, which criminal complaint provides a great deal of detail as to the instant charges and the defendant's conduct encompassed by this indictment. Many of the particulars sought by the defendant could be derived simply by reading the criminal complaint which preceded this indictment.

Id. at p.6.

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, the 281-page criminal complaint, 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 [572] 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).

Giglio Material

Brady Material

In two separate requests the defendant is seeking the disclosure of Brady and Giglio material. Dkt. #355, pp.10 and 12. In its response the government states, [t]his request is unnecessary, as the government acknowledges its affirmative and continuing duty to produce exculpatory evidence and evidence the defense might use to impeach the government's witnesses. . . . Here, the government agrees to provide impeachment material i.e., promises of leniency or immunity agreements with government witnesses, plea and/or non-prosecution agreements and letters or memorandum of understanding regarding such, criminal arrest records of all prosecution witnesses, immoral, vicious or criminal acts committed by witnesses, prior inconsistent statements, and payments to witnesses or family members thereof, and all other promises or considerations given by government personnel to government witnesses or family members thereof. Such production shall occur according to the schedule set by the Court prior to trial and no later than when the government produces any Jencks Act material.

Dkt. #376, pp.9-10.

"[A]s a general rule, Brady and its progeny do not require immediate disclosure of all exculpatory and impeachment material upon request by a defendant." United States v. Coppa, 267 F.3d 132, 146 (2d Cir. 2001). The prosecution is obligated to disclose and turn over Brady material to the defense "in time for its effective use." Id. at 144. With respect to impeachment material that does not rise to the level of being Brady material, such as Jencks Act statements, the prosecution is not required to disclose and turn over such statements until after the witness has completed his/her direct testimony. See 18 U.S.C. § 3500; Fed. R. Crim. P. 26.2; In re United States, 834 F.2d 283 (2d Cir. 1987). However, if the government has adopted a policy of turning such materials over to the defendant prior to trial, the government shall comply with that policy; or in the alternative, produce such materials in accordance with the scheduling order to be issued by the trial judge.

Based on the representations made by counsel for the government as to its obligations under Brady and Giglio, the defendant's request is denied, but the government is hereby directed to comply with the Second Circuit Court of Appeals' holding in United States v. Coppa, 267 F.3d 132 (2d Cir. 2001) and United States v. Rodriguez, 496 F.3d 221 (2d Cir. 2007) by making timely disclosure of those materials to the defendant.

Early Disclosure of Jencks Act Material

By this request, the defendant seeks the early disclosure of witness statements pursuant to Title 18, United States Code, Section 3500. Dkt. #355, pp.10-11. In its response, the government states, [t]o the extent not already provided, the government will disclose witness statements and investigative agency or police department memoranda of witness interviews no later than two weeks prior to trial, as is customarily ordered in this District. The ...

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