The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is defendant's omnibus motion for various discovery and other relief (Docket No. 17). In particular, defendant seeks discovery; Bill of Particulars; FRE 404(b), 608, 609 disclosure; Brady; Jencks Act; search agents' personnel files; preservation of evidence; suppression of evidence from a vehicle stop and from execution of a search warrant of his apartment, 539 Plymouth Street, Buffalo, New York (id.). Some of the relief, such as the suppression motions, will be considered in a separate Report & Recommendation.
Responses were due initially on April 27, 2012, then reset to June 1, 2012 (Docket Nos. 7, 14). The Government filed a timely response (Docket No. 18) and sought therein reciprocal discovery (id. ¶¶ 27-32), and defendant filed his reply (Docket No. 19). The motion was argued on June 18, 2012 (text minute entry, June 18, 2012; cf. text minute entry June 12, 2012 (attempted argument of motion)). The Government then produced the search warrant application and recording of the issuing magistrate's proceeding for in camera inspection. Defendant, on July 10, 2012, submitted his affidavit regarding standing to challenge the searches at issue in his motions (Docket No. 25; see also Docket Nos. 26, 27 (additional affidavit and affirmation from defense)). The motion was deemed submitted as of July 10, 2012 (Docket No. 23).
Defendant was charged with two counts of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and use of premises to manufacture, use and distribute cocaine base, in violation 21 U.S.C. § 856(a)(1), on December 7, 2011.
Defendant concedes that the Government has furnished him with voluntary discovery but he still makes motion for discovery under Rule 16 (Docket No. 17, Def. Atty. Affirm. ¶ 13) and notice of the evidence the Government intends to use against him pursuant to Rule 12 (id. ¶¶ 14-17). The Government argues that it fully complied (in the process of complying, or intends to comply) with its discovery obligations in voluntary discovery (Docket No. 18, Gov't Response ¶¶ 6, 11-15, 7-10).
Although there is no general constitutional right to pretrial discovery in a federal criminal case, a defendant does have a pretrial discovery right with respect to certain matters. For example, under the Fifth Amendment's due process clause, a defendant is entitled to specific exculpatory evidence which is material either to guilt or punishment. In addition, the government has certain disclosure obligations under Rule 16 of the Federal Rules of Criminal Procedure and the Jencks Act, 18 U.S.C. § 3500.
Defendant next seeks a Bill of Particulars as to the exact location where the alleged crack cocaine was located, the substance of defendant's conduct and how he possessed crack cocaine, whether he had actual possession or exercised dominion and control over the crack cocaine, and, if he exercised dominion and control, how his conduct amounted to possession by dominion and control (Docket No. 17, Def. Atty. Affirm. ¶ 19).
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, 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). 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. 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).
Upon review of the Indictment and the extent of discovery produced in this case to defendant, this Court finds that defendant is not entitled to a Bill of Particulars from the Government here inasmuch as he is sufficiently advised of the charges against him to allow for the proper preparation of a defense, ...