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, Wardell Epps ("Epps"), 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), possession with intent to distribute cocaine (Count 13) and seven counts of using a telephone to facilitate possession with intent to distribute and distribution of controlled substances (Counts 17-23). What follows is this Court's Decision and Order with respect to defendant Epps' non-dispositive discovery motions and motion for joinder. Dkt. ##263 and 397.
Defendant Epps 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 Epps 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 Epps and nineteen defendants. Dkt. #296. Following his July 7, 2011 arraignment, defendant Epps continued to be released on bail. Defendant Epps filed pretrial motions on December 1, 2010 (Dkt. #263)*fn1 and the government filed its opposition to Epps' pretrial motions on December 9, 2011 (Dkt. #371). Oral argument on defendant Epps' motions was held on December 14, 2011.
In nine separately lettered requests, the defendant seeks the following information: (a) the identity of all defendants who conspired to possess with intent to distribute cocaine and cocaine base; (b) a list of unindicted co-conspirators; (c) the times, dates and locations when and where defendant Epps and any other co-conspirators agreed to possess with intent to distribute cocaine and/or cocaine base;
(d) all uncharged overt acts by Epps and any unindicted co-conspirators; (e) the identity of any government agent or employee present during the commission of any of the alleged acts; (f) the names of any person present when substantive acts allegedly took place; (g) whether Epps was talking to David Manuel on the dates and times listed in Counts 13-20*fn2 in furtherance of their intent to possess cocaine and cocaine base; (h) whether Epps attempted to distribute cocaine and/or cocaine base; whether he actually distributed cocaine and/or cocaine base and to whom Epps attempted or actually distributed controlled substances; (i) the times and locations within the Western District of New York that Epps possessed cocaine and provide any lab tests intended to confirm that the substance contained cocaine. Dkt. #263, pp. 3-7.
In its response to defendant Epps' request for particularization of the conspiracy charge, the government asserts that what the defendant seeks is a bill of particulars regarding the development of the conspiracy. Dkt. #371, p.4. 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. Id. The government also states,
[i]t should also be noted that the Indictment and Superseding Indictment were preceded by 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.
Dkt. #371, p.5. 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 will not be surprised by the evidence against him or be subject to future jeopardy in a way he might otherwise justify ordering any of the particulars that he requests.
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 Superseding Indictment, 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.
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  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).
Disclosure of Informant Information
The defendant requests the disclosure of the names, addresses and criminal records of all informants utilized by the government in its investigation of this case. Dkt. #263, pp.7-8. In its response, the government states that such disclosure is unwarranted at this time. Dkt. #371, p.6. Relying principally on Roviaro v. United States, the government states in its response that the disclosure of the names, addresses and other information pertaining to government informants is unwarranted. In order for disclosure to be warranted, the informant's testimony must be material to the defense presented and the defendant must make some evidentiary showing demonstrating why the informant's testimony is significant to determining the defendant's guilt or innocence. Id.
In order to be entitled to the requested information, the defendant must sufficiently state a basis for requiring the disclosure of this information or that the testimony of the informant would be of even marginal value to the defendant's case. Moreover, the Court notes that the holding of the Court of Appeals for the Second Circuit in United States v. Saa, 859 F.2d 1067 (2d Cir. 1988), cert. denied, 489 U.S. 1089 (1989), is instructive:
The leading Supreme Court case on this question, Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), holds that [w]here the disclosure of an informant's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to the fair determination of a cause, the [informant's] privilege must give way. 353 U.S. at 60-61, 77 S.Ct. at 628. The Court explained that "no fixed rule with respect to disclosure is justifiable." Id. at 62, 77 S.Ct. at 628. What is required is "balancing the public interest in protecting the flow of information against the individual's right to prepare his defense." Id. Whether non-disclosure is erroneous "must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Id. See Rugendorf v. United States, 376 U.S. 528, 534-35, 84 S.Ct. 825, 829, 11 L.Ed.2d 887 (1964); United States v. Lilla, 699 F.2d 99, 105 (2d Cir. 1983); United States v. Ortega, 471 F.2d 1350, 1359 (2d Cir. 1972), cert. denied, 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973).
The defendant is generally able to establish a right to disclosure "where the informant is a key witness or participant in the crime charged, someone whose testimony would be significant in determining guilt or innocence." United States v. Russotti, 746 F.2d 945, 950 (2d Cir. 1984); United States v. Roberts, 388 F.2d 646, 648-49 (2d Cir. 1968); see United States v. Price, 783 F.2d 1132 (4th Cir. 1986); United States v. Barnes, 486 F.2d 776 (8th Cir. 1973). In Roberts, the informant introduced an undercover agent to the defendant and was present when the defendant and the agent negotiated and transacted two sales of heroin. The Court, noting that the informant was "present during all the significant events," 388 F.2d at 649, found that he was "obviously a crucial witness to the alleged narcotics transactions," id., and therefore, his whereabouts should have been revealed to the defense if properly requested. But disclosure of the identity or address of a confidential informant is not required unless the informant's testimony is shown to be material to the defense. See United States v. Valenzuela-Bernal, 458 U.S. 858, 870-81, 102 S.Ct. 3440, 3448, 73 L.Ed.2d 1193 (1982) (dictum); United States v. Lilla, 699 F.2d at 105. As this Court's recent opinion in United States v. Jiminez, 789 F.2d 167 (2d Cir. 1986) makes clear, it is not sufficient to show that the informant was a participant in and witness to the crime charged. In Jiminez, the informant was both participant and witness, but the district court's refusal to order disclosure of his identity was upheld on the ground that the defendant had failed to show that the testimony of the informant "would have been of even marginal value to the defendant's case. 789 F.2d at 170."
Id. at 1073; see also United States v. Fields, 113 F.3d 313, 324 (2d Cir.), cert. denied, 522 U.S. 976 (1997). Absent the defendant stating a basis for requiring the disclosure of this information or that the testimony of the informant would be of even marginal value to the defendant's case, the defendant's request is denied without prejudice.
Without more, the Court finds that the defendant has failed to sufficiently state a basis for requiring the disclosure of this information or that the testimony of the informant would be of even marginal value to the defendant's case. Accordingly, defendant's request is denied without prejudice.
As a threshold matter, the defendant acknowledges that the government has provided some voluntary discovery. Dkt. #263, pp.9-10. By this request, however, the defendant "moves to compel discovery of all items or information to which the Defendant is entitled." Id. Moreover, the defendant specifies the following nine separately lettered requests: (a) records, including reports and/or logs regarding radio transmissions from the officers at any "crime scene" regarding the investigation; (b) reports relating to the booking process; (c) reports and/or test results relating to forensic tests run, including DNA and/or fingerprint analysis and laboratory analysis of controlled substances; (d) photographs taken relating to investigation; (e) documents and photographs seized on the day of any search; (f) inspection of all items seized from the defendant on the day of his arrest; (g) names and identities of expert witnesses, their qualifications, such of testimony, reports, results of tests, examinations or experiments; (h) any other search warrant, arrest warrant, wiretap order and/or surveillance order applied for and/or issued or denied during investigation; and (I) written notification pursuant to Rule 12(d) of the Federal Rules of Criminal Procedure of any evidence on which the government intends to rely that may be the subject of a motion to suppress and to which the defendant is entitled to discovery pursuant to Rule 16. Id.
In its response, the government states that since the return of the Indictment, the government has complied and intends to continue to comply with the requirements of Rule 16 of the Federal Rules of Criminal Procedure. Dkt. #236, p.13. Specifically, the government states,
[t]o that end, the United States provided comprehensive voluntary discovery in both the Indictment and Superseding Indictment portions of this case. On July 26, 2011, in accordance with the Court's scheduling order, the Government provided a complete set of digitized CDs to each defendant's attorney, which included all evidence in the Government's possession to which the defendant's [sic] were entitled under Rule 12 and Rule 16. Additionally, all physical evidence recovered in connection with this investigation is, and has been, available for inspection by the defendant's attorney. From a review of defendant's motion, it appears to be in large part a boilerplate recitation of discoverable items without regard to what has already been provided. If, upon careful review of said discovery, counsel finds any discrepancies in what the Government has stated it provided, counsel is invited to bring it to the prosecutor's attention and such items will be provided immediately.
As the government identifies any other evidence which falls within the scope of Rule 16, it will provide such evidence to defendants and their counsel. The government will continue to comply with its continuing duties to disclose set forth in Rule 16(c). The government herein notifies the defendant that it may introduce all of this evidence at trial. Expert disclosures and expert ...