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, Tyrone Pennick ("Pennick"), along with nineteen others, is charged in a multi-count Superseding Indictment (Dkt. #296) with alleged cocaine trafficking through a continuing criminal enterprise and with conspiracy to possess with intent to distribute cocaine and cocaine base. Presently pending are Pennick's nondispositive motions directed to the Superseding Indictment. Dkt. ##368, 431 and 477. This Court's Report, Recommendation and Order with respect to Pennick's motion to suppress GPS evidence, motion to suppress wiretap evidence, motion to dismiss Count 2 of the Superseding Indictment and motion to dismiss by reason of outrageous government conduct will be filed separately. What follows is this Court's Decision and Order with respect to defendant Pennick's non-dispositive discovery motions (Dkt. ##368, 431 and 477).
Defendant Pennick 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 Pennick was among the ten defendants indicted by a Federal Grand Jury on June 29, 2010. Thereafter, on May 3, 2011, a Federal Grand Jury returned a sealed Superseding Indictment. Dkt. #296. Defendant Pennick filed pretrial motions on November 29, 2011 (Dkt. #368) and the government filed its opposition to Pennick's pretrial motions on December 9, 2011 (Dkt. #380). Oral argument on defendant Pennick's motions was held on December 14, 2011. On or about February 29, 2012, Angelo Musitano, Esq. filed a Notice of Appearance on behalf of defendant Pennick. Dkt. #405. Counsel for the parties appeared before this Court on March 8, 2012 and newly retained counsel for defendant Pennick requested additional time to file supplemental pretrial motions. The Court directed that any supplemental pretrial motions be filed no later than March 23, 2012. Supplemental motions were filed on behalf of defendant Pennick on March 23, 2012. Dkt. #431. The government filed its response to the supplemental motions on April 6, 2012. Dkt. #460. Oral argument on defendant Pennick's supplemental motions was held on April 10, 2012. Further supplemental pretrial motions have been filed, including another motion seeking the disclosure of Grand Jury transcripts. Dkt. #477. The government filed a further response on April 25, 2012. Dkt. #484.
Motion to Exclude Testimony of Non-Testifying Co-Conspirators
Relying on Bruton v. United States, 391 U.S. 123 (1968) and the Sixth Amendment to the United States Constitution, defendant Pennick requests that this Court preclude the admission into evidence of all post-arrest statements by non-testifying co-conspirators/co-defendants which may implicate the defendant in any way. Dkt. #368, pp.3-4. In its response, the government states, [t]here are no known written or oral statements made by co-conspirator [sic] which would implicate Bruton v. Untied States, 391 U.S. 123 (1968).Accordingly, the Court need not bar any post-arrest statements made by non-testifying co-defendants and the defendant's motion is moot. Nonetheless, if the government later learns that post-arrest statements of the defendant's co-conspirator [sic] may implicate the defendant, the government will accordingly redact the co-conspirator's testimony to remove references to the defendant by name.
Dkt. #380, p.2 (internal citations omitted). Based on the representations made by counsel for the government and based on the fact that such a determination is best left to the trial judge during the course of the trial, the defendant's request is denied as moot. "Responsibility for determining whether declarations of an alleged conspirator should be admitted against another rests on the shoulders of the trial judge." United States v. Mastropieri, 685 F.2d 776, 787-88 (2d Cir. 1982).
In his first-filed non-dispositive motion, defendant Pennick, in eleven separately lettered requests directed to Counts 2 and 3 of the Superseding Indictment, seeks the following: (a) a list of unindicted co-conspirators regardless of whether the government intends to call any as a witness at the trial; (b) the specific times, dates and locations when and where Pennick and the other co-conspirators combined and agreed to possess with intent to distribute; (c) where "elsewhere" the co-conspirators allegedly conspired; (d) how the co-conspirators, including Pennick, knowingly, willfully and unlawfully combined, conspired and agreed to possess with intent to distribute; (e) a list of all uncharged overt acts taken by the co-conspirators; (f) the exact weight of all controlled substances Pennick allegedly conspired with co-conspirators to possess with intent to distribute and the dates; (g) describe the significance of January 2000 as the alleged date of the commencement of the conspiracy, if the exact date is not known to the grand jury; (h) whether or not any individual present during the commission of any alleged overt acts was acting for the government; (i) the names of any persons present when the overt and substantive acts allegedly took place; (j) the dates when each defendant joined the conspiracy, and the date when the conspiracy ended; and (k) the quantity of controlled substance distributed and possessed by each defendant and each co-conspirator during the course of the alleged conspiracy. Dkt. #368, pp.6-7.
In its response to defendant Pennick's requests for particularization, the government asserts that what the defendant seeks is a bill of particulars regarding the development of the conspiracy and the defendant's role at each stage. Dkt. #380, p.5. 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. #380, p.6. 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.
In his second-filed non-dispositive motion (Dkt. #431), defendant Pennick seeks a bill of particulars with respect to Count 2 of the Superseding Indictment, the continuing criminal enterprise charge against Pennick. Count 2 charges:
Between in or about January 2007, the exact date being unknown, and on or about December 16, 2009, in the Western District of New York, and elsewhere, the defendant, Tyrone Pennick a/k/a Stuff, did knowingly, willfully, intentionally and unlawfully engage in a Continuing Criminal Enterprise in that he did violate Title 21, United States Code, Sections 841(a)(1), 843(b) and 826, which violations were part of a continuing series of violations of said statutes undertaken by the defendant, Tyrone Pennick a/k/a Stuff, in concert with five or more other persons, known and unknown, with respect to whom the defendant, Tyrone Pennick a/k/a Stuff, occupied a position of organizer, supervisor and manager, and from which continuing series of violations the defendant, Tyrone Pennick a/k/a Stuff, obtained substantial income and resources. All in violation of Title 21, United States Code, Section 848(a).
In support of his second request for a bill of particulars, defendant Pennick argues that the discovery provided by the government is "bereft of any meaningful information regarding any of these CCE elements." Dkt. #431, p.10. Indeed, in twelve separately lettered requests, defendant Pennick seeks the following:
a. State with specificity and particularity of [sic] date, time and place, the 'continuing series' of Title 21 drug violations;
b. When each part of the continuing series commenced;
c. Where each part of the continuing series took place;
d. Who was present when each part of the continuing series occurred;
e. What particular Title 21 drug violation was involved in each component part of the continuing series;
f. State with specificity and particularity the five or more persons with whom Mr. Pennick allegedly undertook the continuing series of Title 21 drug violations;
g. How Mr. Pennick acted in concert with these five or more persons;
h. State with specificity how Mr. Pennick occupied a position of organizer;
i. How Mr. Pennick occupied a supervisory position;
j. How Mr. Pennick occupied a position of management;
k. State with specificity and particularity how Mr. Pennick obtained substantial income from his part of the continuing ...