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United States of America v. Victor Monge

May 24, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
VICTOR MONGE, DEFENDANTS.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

This case was referred to the Hon. Hugh B. Scott by the Hon. William M. Skretny, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #10. Thereafter, Magistrate Judge Scott issued an Order of Recusal in the case as to Victor Monge only (Dkt. #58) and Chief Judge Skretny referred the case against Victor Monge to the undersigned, in accordance with 29 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #61.

PRELIMINARY STATEMENT

The defendant, Victor Monge ("Monge"), along with seven others, is charged in a one-count Indictment (Dkt. #9) with conspiracy to possess with intent to distribute and to distribute one kilogram or more of heroin. In addition, the defendants face a forfeiture count seeking the forfeiture of money and personal property. Presently pending is defendant Monge's non-dispositive discovery motions with respect to the Indictment. Dkt. #53.

FACTS*fn1

Defendant Monge and seven others were charged in a Criminal Complaint on March 18, 2011 with conspiracy to possess with intent to distribute and to distribute one kilogram or more of heroin, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A) all in violation of Title 21, United States Code, Section 846. The Affidavit of Chautauqua County Sheriff's Department Detective and Drug Enforcement Administration Task Force Agent S.R. Cory Higgins submitted in support of the Criminal Complaint authorized by Magistrate Judge Scott detailed the investigation which included Orders issued by Chief Judge Skretny authorizing the interception of wire communications and targeting the organization headed by co-defendant Victor Anguiera. Specifically, the affidavit refers to a March 15, 2011 intercepted conversation wherein it was indicated that the Anguiera organization would be receiving a shipment of heroin on March 17, 2011. Dkt. #1, ¶ 5. The affidavit thereafter detailed the intercepted conversations and surveillance that took place between March 16-17, 2011, as well as a vehicle stop in the early evening on March 17, 2011. Finally, the affidavit describes search warrants that were obtained from Chautauqua County Court Judge John T. Ward, and what evidence was seized following the execution of those search warrants.

On March 30, 2011, a Federal Grand Jury returned a one-count Indictment charging Monge and seven others with conspiracy to possess with intent to distribute and to distribute one kilogram or more of heroin during the period in or about April 2009 to March 17, 2011. Dkt. #9. In his pretrial motions filed March 10, 2012, defendant Monge seeks a bill of particulars, discovery pursuant to Rule 16 of the Federal Rules of Criminal Procedure, the disclosure of Brady, Giglio and Jencks Act material, the disclosure of the identity of informants, permission to join in the motions of his co-defendants and leave to file additional motions. Dkt. #53. The government filed its response to the instant motion on March 12, 2012 (Dkt. #55) and Magistrate Judge Scott heard oral argument on March 16, 2012. Thereafter, on March 30, 2012, Magistrate Judge Scott issued an Order of Recusal and this Court held a status conference and took defendant Monge's motions under advisement. Dkt. #58.

DISCUSSION AND ANALYSIS

Bill of Particulars

That portion of defendant Monge's omnibus pretrial motion seeking a bill of particulars with respect to Count 1 states in its entirety:

CONSPIRACY TO DISTRIBUTE COCAINE

(Count 1)

a) Identify the name of all individuals from whom the Government alleges Defendant distributed cocaine;

b) The exact quantity of cocaine based [sic] alleged to be in possession of Defendant MONGE during the alleged conspiracy;

c) State the exact number of times Defendant

distributed cocaine during the alleged conspiracy;

d) State the exact amount and/or weight of cocaine.

Dkt. #53, p.4. The government filed a single response to the requests for a bill of particulars sought by defendants Monge, Cruz-Hernandez, Ortiz-Rosa and Areizaga-Rosa. Dkt. #55, ¶¶ 23-29. The government does not specifically address defendant Monge's request for a bill of particulars. As a threshold matter, the Court notes that the defendant seeks particularization with respect to Count 1 of the Indictment, an alleged conspiracy to possess and distribute heroin, and defendant Monge's requests all related to cocaine. Notwithstanding the foregoing, the Court will address defendant Monge's request for a bill of particulars concerning the drug conspiracy. In its response, the government asserts,

The government maintains that the Indictment is sufficient and that the demand for a Bill of Particulars is unwarranted as to each defendant. The volume of discovery provided thus far in this action provides an overall picture of each defendant's culpability and actions relative to the conspiracy and the combination of the containing [sic] the wiretap applications, affidavits, warrants, sealing orders, search warrants and inventories and affidavits thereto, laboratory reports, multiple CDs containing all pertinent conversations, transcripts thereof, line sheets, minimization instructions, recordings and information concerning controlled buys, and post arrest statements, constituting all material presently within its possession that is within the purview of Rule 16 and in compliance with Rule 12(b)(4)(B).

Dkt. #55, ¶ 23. In addition to the foregoing, the government maintains that it should not be required "to preview its case or expose its legal theory" nor should it be required to disclose the manner in which it will attempt to prove the charges or the precise manner in which the crimes were committed. Id. at ¶ 23. Finally, the government states, [m]any of the particulars sought by defendants relate to specific details of the conspiracy charged in the Indictment. Additionally, the government does not have to prove overt acts to support such charge. However, the government is not required to prove exactly when or how a conspiracy was formed or when or how a particular defendant joined the scheme, and as the circumstantial proof from which the government usually relies to prove the existence of a scheme often does not reveal such details, the courts have consistently rejected demands for particulars as to the formation of a conspiracy or the entry into a conspiracy of a particular defendant or confederate.

Id. at ¶ 29.

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 281 page affidavit filed in support of the Criminal Complaint, and 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).

Discovery

As a threshold matter, defendant Monge notes that the government has already provided "many discoverable items" and that the instant request "encompasses those items not previously disclosed." Dkt. #53, ¶ 9.

Defendant's Statements

The defendant requests copies of any written, recorded, oral or observed statements made by him or made by any "uncharged co-defendants or co-conspirators", including any notes, summaries or memoranda concerning such statements. Id. at ¶ 9. In its response, the government states in pertinent part,

[t]he government contends that it had [sic] provided, pursuant to voluntary discovery and requests made by defendants, the wiretap applications, affidavits, warrants, sealing orders, search warrants and inventories and affidavits thereto, laboratory reports, multiple CDs containing all pertinent conversations, transcripts thereof, line sheets, minimization instructions, recordings and information concerning controlled buys, and post arrest statements, constituting all material presently within its possession that is within the purview of Rule 16 and in compliance with Rule 12(b)(4)(B) and believes that discovery is thereby complete. The government further does not concede that any of the materials requested by the defendant to the extent not previously disclosed falls within the purview of Rule 16. All written and recorded statements of defendants have been provided or will be provided, as well as the substance of any oral statements made by each defendant before and after arrest in response to interrogation by any person known to the defendant to be a government agent.

Dkt. #55, ΒΆ 4. Based on the representations made by counsel for the government, the defendant's ...


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