The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is the defendant's omnibus motion seeking various pretrial relief (Docket No. 11).
In an indictment dated June 9, 2011, a Grand Jury for the Western District of New York issued an indictment charging defendant, Dion Garrett ("Garrett") with two counts of illegal possession and intent to distribute a substance containing cocaine base in violation of 21 U.S.C. §841(a)(1) and 841(b)(1)(C). (Docket No. 1).
The defendant's motion papers list various items of pretrial discovery sought under Rule 16 of the Federal Rules of Criminal Procedure, as well as various provisions of the Federal Rules of Evidence. (Docket No. 11 at pages 4-13). The government has represented that it has complied with its discovery obligations. (Docket No. 15 at page 1). During oral argument, the parties identified a dispute regarding the production of un-redacted audio tapes of various conversations between the defendant and a confidential source. It is undisputed that the government has produced an un-redacted version of the audio tape for defendant's counsel to review. The government has also produced a redacted audio tape of the conversation (taking out the voice of the confidential source), and an un-redacted transcript of the conversation. In this regard, the defendant can listen to the redacted audio tape and follow along with the transcript so that the defendant can read what the confidential informant is saying, but cannot hear the confidential informant's voice. The government asserts that this method is necessary to protect the identity of the confidential informant from disclosure. The defendant argues that this method is insufficient, but has not articulated how this combination of audio and written transcript is insufficient in allowing the defendant an opportunity to be aware of the substance and context of the taped conversation. The defendant has also failed to present any legal authority requiring the unredacted version of the audio tape which would allow the defendant to identify the confidential informant. Because the combination of the audio tape and written transcript provide the defendant with the entirety of the taped conversation, this method of production is sufficient under Rule 16.
No other discovery issues have been identified by the parties as outstanding at this time.
The defendant seeks the pre-trial disclosure of the identity of any informants in this case.
The government is not required to furnish the identities of informants unless it is essential to the defense. Roviaro v. United States, 353 U.S. 52, 60-61 (1957); United States v. Saa, 859 F.2d 1067, 1073 (2d Cir.) cert. denied 489 U.S. 1089 (1988). Nor does Rule 16 require the government to disclose the names of witnesses prior to trial. United States v. Bejasa, 904 F.2d 137, 139 (2d. Cir.) cert. denied 498 U.S. 921 (1990).
The defendant has not established that the pre-trial disclosure of the identities of any informants is essential to his defense. This request is denied.
The defendant seeks a bill of particulars in this case. Rule 7(f) of the Federal Rules of Criminal Procedure provides that the Court may direct the filing of a Bill of Particulars. Bills of Particulars are to be used only to protect a defendant from double jeopardy and to enable adequate preparation of a defense and to avoid surprise at trial. U.S. v. Torres, 901 F.2d 205 (2d Cir. 1990). The government is not obligated to "preview its case or expose its legal theory" U.S. v. LaMorte, 744 F.Supp 573 (S.D.N.Y. 1990); U.S. 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" U.S. v. Andrews, 381 F.2d 377 (2d Cir. 1967). Notwithstanding the above, there is a special concern for particularization in conspiracy cases. U.S. v. Davidoff, 845 F.2d 1151 (2d Cir. 1988).
In the instant case, during an appearance before the Court, the defendant expressed confusion, directly to the Court, not through counsel, that he was under the impression that a criminal complaint had been filed in this case and that he had never been provided with a copy of the criminal complaint. At that time, the government represented that no criminal complaint had been filed in this case. Notwithstanding that representation, the government's response to the defendant's instant request for a bill of particulars, states that a criminal complaint was filed in this case. (Docket No. 15 at page 5). In light of the inconsistent representations by the government, and the confusion resulting therefrom, the Court finds that a bill of particulars is warranted in this case. The Court ...