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. 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. Text Order of Referral dated August 12, 2010. Presently pending is defendant Felix Vasquez's omnibus discovery motion. Dkt. #188. The government filed opposition to defendant Vasquez's motion (Dkt. #204) and oral argument was held on February 2, 2012; the transcript of oral argument was filed on March 26, 2012 (Dkt. #225).
On August 12, 2010, a Federal Grand Jury empaneled in the Western District of New York returned a six-count Indictment charging defendants, Jose Martinez, a/k/a "Noelle", Angel Luis Marcial, a/k/a "Bate", Juan DeJesus Santiago, a/k/a "Javi", Felix J. Vasquez, a/k/a "Lolo" and Carlos A. Jorge Canales, a/k/a "Nito" with the following crimes: conspiracy to possess and distribute cocaine and cocaine base (Count 1) in violation of Title 21, United States Code, Section 846*fn1 ; conspiracy to kill Quincy Turner, a government witness, (Count 2) in violation of Title 18, United States Code, Section 1512(k); the killing and the conspiracy to kill Quincy Turner to prevent his communication with law enforcement (Count 3) in violation of Title 18, United States Code, Sections 1512(a)(1)(C), 1512(a)(3)(A) and 2; conspiracy to retaliate against Quincy Turner for providing information to a law enforcement officer (Count 4) in violation of Title 18, United States Code, Sections 1513(f) and 1513(a)(2)(A); retaliation against Quincy Turner for providing information to a law enforcement officer (Count 5) in violation of Title 18, United States Code, Sections 1513(a)(1)(B) and 1513(a)(2)(A) and 2; and the possession, use, and discharge of a firearm in connection with the killing of Quincy Turner (Count 6) in violation of Title 18, United States Code, Sections 924(c)(1)(A)(iii), 924(j)(1) and 2. Dkt. #1. As against each named defendant, the Indictment sets forth a Notice of Special Findings with respect to Counts 2 - 6 pursuant to Title 18, United States Code, Sections 3591 and 3592 indicating, inter alia, that the crimes charged in Counts 2 through 6 are crimes for which the government may seek a sentence of death.
In his motion, defendant Vasquez seeks: a bill of particulars; discovery pursuant to Rules 12 and 16 of the Federal Rules of Criminal Procedure; a bill of particulars; pretrial disclosure of evidence pursuant to Rules 404(b), 608 and 609 of the Federal Rules of Evidence; the immediate release of Brady, Giglio and Jencks Act material; and an audibility hearing. See Dkt. #188.
By his motion, defendant Vasquez seeks particularization with respect to Counts 2, 4 and 6 of the instant Indictment. With respect to Counts 2 and 4, defendant Vasquez requests that the government state with specificity the "others" with whom Vasquez is alleged to have conspired to kill Quincy Turner. Dkt. #188, p.3. Finally, with respect to Count 6, defendant Vasquez requests that the government state: the date, time and place each defendant, including defendant Vasquez, is alleged to have "used" firearms; the date, time and place each defendant, including defendant Vasquez, is alleged to have "carried" firearms; the date, time and place each defendant, including defendant Vasquez, is alleged to have "discharged" firearms; the make, model and serial number of the firearms alleged to have been "used," "carried," and "discharged" by the defendants, including defendant Vasquez, and if the government alleges that defendant Vasquez had constructive possession of the firearms, state with specificity the facts upon which the government will rely in attempting to prove constructive possession. Id. at pp.3-4.
Although the government did not individually respond to each of defendant Vasquez's requests for a bill of particulars, in its general response the government states, in part, Defendant, despite the volume of discovery provided, has requested that the government file a Bill of Particulars enumerating and specifying, in great detail, aspects of the case. The government maintains that the Indictment is sufficient and that the demand for a Bill of Particulars is unwarranted as to the defendant. The volume of discovery provided thus far provides an overall picture of the defendant's culpability and actions relative to the superceding [sic] indictment constituting all material presently within its possession that is within the purview of Rule 16 and in compliance with Rule 12(b)(4)(B). . . .
Many of the particulars sought by the defendant relate to specific details of the conspiracies charged in the Indictment. Additionally, the government does not have to prove overt acts to support such charges. 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. Nor is the government obligated to disclose the means by which it is charged that the bad and overt act was performed in furtherance of the conspiracy, which is most certainly true in a case of a prosecution under Title 21, United States Code, Section 846, in that it does not require the allegation or specification of overt acts.
Dkt. #204, pp.2-7 (internal citations omitted). During oral argument, counsel for the government stated that it has previously placed on the record its "view or vision" of the evidence as it relates to each defendant's role in the murder of Quincy Turner and further that the government should not be required to put into writing information that the defendants already know. Dkt. #225, p.17.
The defendant's requests are denied. 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). With respect to Counts 2 and 4, defendant Vasquez asks that the government, among other things, identify the "others" that participated in the conspiracy to kill Quincy Turner, and state the dates each co-conspirator entered and left the conspiracy. Where, as here, the charges involve violence, courts have declined to grant a request for a bill of particulars seeking the identity of unindicted co-conspirators. See United States v. Santiago, 174 F.Supp.2d 16, 36 (S.D.N.Y. 2001); United States v. Columbo, No. 04-CR-273, 2006 WL 2012511, at *6 n.18 (S.D.N.Y. July 18, 2006). With respect to defendant Vasquez's requests concerning the firearms and the date, time and place each defendant used, carried and/or discharged the firearms, the government is not obligated to preview its case or expose its legal theory, nor is the government required to disclose the manner in which it will attempt to prove the charges or the precise manner in which the crimes charged in the Indictment were committed. Finally, based on the representations made by counsel for the government concerning the discovery provided, the balance of the defendant's requests for particularization seek information already known by defendant Vasquez by reason of the discovery provided.
"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, ____ U.S. ____, 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 Bortnovsky, 820 F.2d at 574. "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. 2004); United States v. Porter, 2007 WL 4103679 (2d Cir. 2007).
A & B. Defendant's Statements
The defendant requests copies of any written or recorded statements made by him, as well as the substance of any oral statements he made. Dkt. #188, pp.4-7. Moreover, the defendant seeks the name, address and phone number of each person present when any such statement was made by the defendant. Id. In its response, the government states in pertinent part, [a]ll written and recorded statements of defendant have been provided or will be provided, as well as the substance of any oral statements made by defendant before and after arrest in response to interrogation by any person known to the defendant to be a government agent.
Dkt. #204, p.7. Based on the representations made by counsel for the government, the defendant's request is denied as moot.
C. Co-Conspirators' Statements
By this request, defendant Vasquez seeks the disclosure of all written, recorded, or oral statements made by a co-defendant/co-conspirator, indicted or unindicted, which the government alleges are admissible under Federal Rule of Evidence 801(d)(2)(E). Dkt. #188. In its response, the government declines to provide statements and the identities of all persons or co-conspirators interviewed and not intended to be called by the government as outside the requirement of Title 18, United States Code, Section 3500 and Rule 16 of the Federal Rules of Criminal Procedure. Dkt. #204, p.8.
Although the government did not specifically respond to this expanded request, Rule 16(a)(1)(A) of the Federal Rules of Criminal Procedure only authorizes discovery by a defendant of his own statement and not those of a co-defendant, except as may be otherwise provided for in Title 18, United States Code, Section 3500. Even though statements of co-defendants are not discoverable under Rule 16(a)(1)(A), it is possible to find that they are discoverable under Rule 16(a)(1)(E). However, based on the record presently before this Court, a determination of whether such statements, to the extent they exist, are discoverable under the Jencks Act (Title 18, United States Code, Section 3500) or under Rule 16(a)(1)(E) would be premature at this time. Accordingly, for the foregoing reasons, defendant Vasquez's request is denied without prejudice.
With respect to defendant Vasquez's request for the disclosure of co-conspirators' statements, the government declines to provide statements and the identities of all persons or co-conspirators interviewed and not intended to be called by the government as outside the requirement of Title 18, United States Code, Section 3500 and Rule 16 of the Federal Rules of Criminal Procedure. Dkt. #204, p.8. Because Rule 801(d)(2)(E) of the Federal Rules of Evidence does not contain a required pretrial notice, there is no requirement on the part of the government to make any such disclosure of this type of evidence at this time. As a result, defendant's request in this regard is denied.
D. Defendant's Prior Criminal Record
By this request, defendant Vasquez requests a copy of his prior criminal record. Dkt. #188, p.8. Although the government does not specifically respond to this request, Rule 16(a)(1)(D) of the Federal Rules of Criminal Procedure mandates such disclosure. Accordingly, to the extent the government has not already ...