The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is defendants' motions for various discovery and other forms of pretrial relief (Docket Nos. 34, Cruz-Hernandez, 50, Ortiz-Rosa, 51, Areizaga-Rose)*fn1 . Four other defendants*fn2 in this case did not file omnibus motions. All three moving defendants seek (or join in seeking) the following relief: filing of Bills of Particulars; discovery; production of Brady material; Jencks Act materials; disclosure of the identity of informants. Some of the defendants (either individually or jointly, where indicated) also seek production of the witnesses' testimony before the Grand Jury; production of Federal Rules of Evidence 404(b), 608, and 609 materials; disclosure of informants' notes, nicknames, and photographs; the Government's expert disclosure; production of medical records; preservation of Government agents' notes and evidence; and exclusion of statements of non-testifying co-conspirators. Where relief is sought by all three movants, it will apply to each movant. Areizaga-Rosa also individually seeks an audibility hearing, production of Government summaries, voir dire of Government experts outside the presence of the jury, exclusion of hearsay under Crawford v. Washington, 541 U.S. 36 (2004), and production or notice of defendant's statements that might be subject to a suppression motion, requesting a suppression hearing if necessary (Docket No. 51). Some of the relief sought for excluding non-testifying co-conspirators statements, for an audibility hearing, production of Government summaries, conducting expert voir dire, and exclusion of hearsay under Crawford are better considered by the District Judge prior to trial and are deferred for that consideration.
Defendants separately have also moved for forms of dispositive relief (Docket No. 34, Cruz-Hernandez motion to dismiss the Indictment, motion for severance) that will be addressed in separate Report and Recommendations (Docket No. 59).
The Government submitted a consolidated response to these motions (Docket No. 55), and cross-moved for reciprocal discovery (id. ¶¶ 39-41). These motions and cross-motions were argued on March 16, 2012, where defense counsel objected to the manner of production by the Government, stating their inability to link specific discovery produced to a given defendant, problems in accessing the material by the format provided, the lack of an index of the materials produced, and the potential for spill over prejudice (text minute entry, Mar. 16, 2012). These motions were deemed submitted following argument (id.).
The Indictment in this case charged eight*fn3 defendants with conspiracy to possess with the intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), prior to April 2009 to March 17, 2011, and alleged a forfeiture allegation (Docket No. 1, Indict.).
All defendants seeks separate Bills of Particulars (Docket Nos. 34, Cruz-Hernandez Atty. Affirm. ¶¶ 21-24; No. 50, Ortiz-Rosa Atty. Aff. ¶ 4, at I. E., Ex. A (detention hearing transcript, Apr. 26, 2011, stating Ortiz-Rosa's limited role in this case)); No. 51, Areizaga-Rosa Motion, Sec. XVI (1-11)). Rule 7(f) of the Federal Rules of Criminal Procedure provides that the Court may direct the filing of a Bill of Particulars. During oral argument, Areizaga-Rosa contends that he had come into Buffalo on the date the search warrant was executed, that he had no connection with the other defendants, and thus needed a Bill of Particulars aside from the bare bones allegation of violation of the statute contained in the Indictment. Cruz-Hernandez seeks a Bill to particularize the date, time, and places of the alleged conspiracy.
The Government responds that the Indictment was sufficient and a demand for a Bill of Particulars should be denied (Docket No. 55, Gov't Atty. Aff. ¶¶ 23, 24-29). Also, the Government points to the volume of discovery provided to each defendant that makes a Bill of Particulars unnecessary (id. ¶ 23).
Bills of Particulars are to be used only to protect a defendant from double jeopardy, 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), but the Government need not prove overt acts in furtherance of the conspiracy, United States v. Knuckles, 581 F.2d 305, 311 (2d Cir.), cert. denied, 439 U.S. 986 (1978), or particularize on the facts surrounding the formation of the conspiracy or when a given defendant joins it, United States v. Iannelli, 53 F.R.D. 482 (S.D.N.Y. 1971) (id. ¶ 29). While it is within this Court's sound discretion to order the filing of a Bill of Particulars, Wong Tai v. United States, 273 U.S. 77, 82 (1927), the burden is upon defendants to show that non-disclosure of the requested particulars would lead to prejudicial surprise at trial or would adversely affect defendants' rights, id. (Docket No. 55, Gov't Atty. Aff. ¶ 24). Any particularization confines the Government's proof to the particulars furnished, United States v. Glaze, 313 F.2d 757, 759 (2d Cir. 1963); United States v. Murray, 297 F.2d 812, 819 (2d Cir.), cert. denied, 369 U.S. 828 (1962) (id. ¶ 27).
Count I of the Indictment alleges that "beginning sometime prior to in or about April 2009, the exact date being unknown, and continuing up to on or about March 17, 2011, in the Western District of New York, and elsewhere, the defendants," knowingly, willfully, and unlawfully conspired to agree to possess one kilogram or more of heroin with the intent to distribute and to distribute the same (Docket No. 1, Indict.). Upon review of the Indictment and the extent of discovery produced in this case to defendants, this Court finds that each defendant is not entitled to a Bill of Particulars from the Government here inasmuch as each defendant is sufficiently advised of the charges against him to allow for the proper preparation of a defense, to avoid surprise at trial, and to protect the defendant from double jeopardy.
Defendants next seek various items of pretrial discovery. The Government contends that it has and will provide voluntary discovery, but declines to produce anything else beyond the scope of Rule 16 (Docket No. 55, Gov't Atty. Aff. ¶ 4, Exs. A, B). Test results and reports have been made available to defendants (id. ...