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. Text Order of Referral, May 21, 2012.
The defendant, Lorenzo Snow ("Snow"), along with his co-defendant, Angelina Evans, is charged in a ten-count Indictment (Dkt. #17) with conspiracy to possess with intent to distribute 28 grams or more of cocaine base (Count 1), maintaining a premises for the purpose of manufacturing, distributing and using cocaine base (Count 2) and possession with intent to distribute cocaine base (Counts 3-10). What follows is this Court's Decision and Order with respect to defendant Snow's nondispositive discovery motions. Dkt. #25.*fn1
Defendant Snow and co-defendant Angelina Evans were charged in a Criminal Complaint on March 5, 2012, with conspiracy to distribute a quantity of a mixture and substance containing cocaine base, in violation of Title 21, United States Code, Section 841(a)(1) and conspiracy to use and maintain a place for the purpose of distributing cocaine base, in violation of Title 21, United States Code, Section 856(a), all in violation of Title 21, United States Code, Section 846. Dkt. #1. The affidavit of United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms & ExplosivesSpecial Agent James M. Lewer filed in support of the Criminal Complaint describes that a number of independent witnesses and confidential informants provided information that Snow was a Rochester, New York drug dealer who had been selling cocaine base and heroin in Lockport, New York. In addition, the information revealed that Snow's unidentified sources of crack cocaine and heroin were located in Rochester and thereafter, he transported larger quantities of crack cocaine and smaller quantities of heroin from Rochester to Lockport several times per week, usually in a Ford Expedition, bearing NYS license plate FGH3117. Dkt. #1, p.4. Moreover, in or about the second week of December 2011, Snow arranged for Evans to reside at 129 Lock Street, Lockport, New York so that Evans could sell crack cocaine from that residence on a daily basis for Snow. Id. at p.5.
During the investigation, Evans and Snow were observed by law enforcement arriving/departing from the residence at 129 Lock Street at times in a Ford Expedition bearing NYS license plate FGH3117. Id. During the investigation, two confidential informants provided information based on personal observations and conversations with Snow and Evans, that Snow had arranged for Evans to reside at 129 Lock Street in order to sell crack cocaine on his behalf. Id. at p.6. In January 2012, a confidential informant made two controlled purchases from Evans at the residence. Id. Thereafter, on February 17, 2012, a search warrant was executed at 129 Lock Street and the following items were located in Evans' bedroom: approximately one ounce of cocaine; a small quantity of crack cocaine; a small quantity of marijuana; as well as multiple indicia of narcotics trafficking, such as an electronic scale and multiple new and unused baggies. Id. at p.7. The cocaine referenced above was hidden in a man's boot under Evans' bed. Id.
Also on February 17, 2012, co-defendant Evans agreed to a voluntary, custodial interview wherein she expressed a desire to assist in the investigation and provided multiple incriminating statements. Id. at p.8. Among other things, Evans stated that beginning in or about the second week of December 2011 until February 16, 2012, she had sold large amounts of crack cocaine in Lockport, New York on behalf of Snow. Id. On May 18, 2012, a Federal Grand Jury returned a ten-count Indictment charging Snow and Evans with conspiracy to possess with intent to distribute 28 grams or more of cocaine base, maintaining a premises for the purpose of manufacturing, distributing and using cocaine base and possession with intent to distribute cocaine base. Dkt. #17. On October 3, 2012, defendant Evans, pursuant to the terms of a written plea agreement, entered a plea of guilty to Count 1 of the Indictment. Dkt. #29. As provided in the plea agreement, defendant Evans has agreed to cooperate with the government and upon the condition that defendant Evans fully complies with all the terms and conditions of the plea agreement and the government determines that the defendant has provided substantial assistance in the investigation or prosecution of others, the government will move the Court at sentencing to depart downward at least two offense levels. Id. Sentencing is presently scheduled for February 8, 2013.
Motion to Suppress Statements
By this motion, defendant Snow, citing Bruton v. United States, 391 U.S. 123 (1968) and the Sixth Amendment, is seeking to preclude the admission into evidence of all post-arrest statements of co-defendant Evans. Dkt. #25, pp.3-5. Co-defendant Evans' statements to law enforcement following her February 17, 2012 arrest are detailed in Special Agent Lewer's affidavit in support of the Criminal Complaint and are summarized above. Since the filing of the instant motion, defendant Evans has plead guilty and has further agreed to cooperate with the government pursuant to the terms of her plea agreement. During oral argument, counsel for defendant Snow conceded that should co-defendant Evans testify at a trial of defendant Snow, the relief sought herein would be more appropriately presented as a motion in limine to the trial judge. Accordingly, for the foregoing reason, defendant Snow's motion is denied as premature.
Motion for a Bill of Particulars
In twenty-five separately lettered requests, defendant Snow seeks the following particulars with respect to each count: (a) list of unindicted co-conspirators; (b) times, date and locations where Snow and other co-conspirators combined and agreed to possess with intent to distribute; (c) where "elsewhere" the co-conspirators allegedly conspired; (d) how Snow and the co-conspirators conspired to possess with intent to distribute; (e) a list of the overt acts taken by Snow and other co-conspirators; (f) the weight of all controlled substances Snow conspired to possess and the dates on which he conspired to possess each amount; (g) identify whether any individual present during the commission of any of the crimes was acting for the government; (h) the names of any persons present when the overt and substantive acts took place; (i) the date defendant Snow joined the conspiracy, the date the conspiracy ended, including when each defendant or unindicted co-conspirator left the conspiracy; (j) the quantity of controlled substances distributed by each defendant and each co-conspirator; (k) "state with particularity what knowledge the defendant had relative to the general contours of the conspiracy"; (l) state what the defendant knew and how he agreed to commit the charges in the indictment; (m) state what goals the defendant adopted in furthering or facilitating the criminal charges; (n) identify all the co-conspirators; (o) "state the date that the defendant entered into the conspiracy state with particularity all of the agreements the defendant made with respect to his participation in the conspiracy and state with particularity the date when the defendant's involvement with the conspiracy ended"; (p) state the specific acts the defendant committed relative to the conspiracy in October 2011; (q) state the specific acts the defendant committed relative to the conspiracy in November 2011; (r) state the specific acts the defendant committed relative to the conspiracy in December 2011; (s) state the specific acts the defendant committed relative to the conspiracy in January 2012; (t) state the specific acts the defendant committed relative to the conspiracy in February 2012; (u) state with particularity what criminal acts the defendant knew of by other individuals either charged or not charged; (v) state whether the defendant committed any overt act not charged in the indictment; (w) "state with particularity the other individual or individuals the defendant allegedly agreed with that [sic] the acts contained in counts 1 through 10"; (x) "state with particularity the dates, times and places where the defendant knowingly, willfully an unlawfully combined, conspired and agreed together with others to commit the offense as set forth in Courts [sic] 1 through 10 of the indictment; and (y) "state the date the conspiracy began, the date when it ended and with particularity all acts, omissions and agreements which the defendant committed relative to his involvement on Counts 1 through 10 of the indictment." Dkt. #25, pp.6-9.
In addition, defendant Snow asserts that the indictment is bare bones and that despite the fact that the indictment charges a conspiracy to distribute more than 28 grams of crack cocaine, the voluntary discovery provided only establishes evidence of an alleged sale of 4.37 grams of crack cocaine. During oral argument counsel for defendant Snow referred the Court to the Second Circuit's recent decision in United States v. Gonzalez, 686 F.3d 22 (2d Cir. 2012) with respect to their argument that the Indictment on its face does not support the charging of the 28 grams or more of crack cocaine which triggers a mandatory minimum penalty.*fn2
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 Indictment, along with 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.
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  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).
Motion for Revelation of Identity of Informants
By this request, defendant Snow seeks the disclosure of the identity of any and all informants who may possess information which may be material to defendant's alleged guilt or innocence and who were present at any of the events described in the indictment. Dkt. #25, p.10. Moreover, defendant Snow requests the disclosure of any and all government reports containing information received from any informant which may be material to the instant case. Id. In addition, defendant Snow requests the whereabouts of the informants and asks that they be made available to the defense. Id. at pp.11-14. Finally, defendant Snow requests that the government be required to disclose the identity of its witnesses, as well as all Giglio material.
Relying principally on Roviaro v. United States, the government states in its response that the law recognizes a privilege to withhold the identities and backgrounds of confidential informants because "it recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law enforcement officials and, by preserving their anonymity, encourages them to perform that obligation." Dkt. #26, p.9, citing Roviaro, 353 U.S. 53, 59 (1957). In order for disclosure to be warranted, the informant's testimony must be material to the defense presented and the defendant must make some evidentiary showing demonstrating why the informant's testimony is significant to determining the defendant's guilt or innocence. Here, the government maintains that defendant Snow has failed to demonstrate a particularized need for the disclosure of the informants' identities. Finally, with respect to defendant Snow's request for the government to disclose reports containing information derived from the informants, the government states that it has turned over all documents in this case and that it redacted the times and locations on certain documents pursuant to the protective order in effect to prevent the defendant from identifying the exact identity of the informants. Dkt. #26, pp.11-12.
In order to be entitled to the requested information, the defendant must sufficiently state a basis for requiring the disclosure of this information or that the testimony of the informant would be of even marginal value to the defendant's case. Moreover, the Court notes that the holding of the Court of Appeals for the Second Circuit in United States v. Saa, 859 F.2d 1067 (2d Cir. 1988), cert. denied, 489 U.S. 1089 (1989), is instructive:
The leading Supreme Court case on this question, Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), holds that [w]here the disclosure of an informant's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to the fair determination of a cause, the [informant's] privilege must give way. 353 U.S. at 60-61, 77 S.Ct. at 628. The Court explained that "no fixed rule with respect to disclosure is justifiable." Id. at 62, 77 S.Ct. at 628. What is required is "balancing the public interest in protecting the flow of information against the individual's right to prepare his defense." Id. Whether non-disclosure is erroneous "must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Id. See Rugendorf v. United States, 376 U.S. 528, 534-35, 84 S.Ct. 825, 829, 11 L.Ed.2d 887 (1964); United States v. Lilla, 699 F.2d 99, 105 (2d Cir. 1983); United States v. Ortega, 471 F.2d 1350, 1359 (2d Cir. 1972), cert. denied, 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973).
The defendant is generally able to establish a right to disclosure "where the informant is a key witness or participant in the crime charged, someone whose testimony would be significant in determining guilt or innocence." United States v. Russotti, 746 F.2d 945, 950 (2d Cir. 1984); United States v. Roberts, 388 F.2d 646, 648-49 (2d Cir. 1968); see United States v. Price, 783 F.2d 1132 (4th Cir. 1986); United States v. Barnes, 486 F.2d 776 (8th Cir. 1973). In Roberts, the informant introduced an undercover agent to the defendant and was present when the defendant and the agent negotiated and transacted two sales of heroin. The Court, noting that the informant was "present during all the significant events," 388 F.2d at 649, found that he was "obviously a crucial witness to the alleged narcotics transactions," id., and therefore, his whereabouts should have been revealed to the defense if properly requested. But disclosure of the identity or address of a confidential informant is not required unless the informant's testimony is shown to be material to the defense. See United States v. Valenzuela-Bernal, 458 U.S. 858, 870-81, 102 S.Ct. 3440, 3448, 73 L.Ed.2d 1193 (1982) (dictum); United States v. Lilla, 699 F.2d at 105. As this Court's recent opinion in United States v. Jiminez, 789 F.2d 167 (2d Cir. 1986) makes clear, it is not sufficient to show that the informant was a participant in and witness to the crime charged. In Jiminez, the informant was both participant and witness, but the district court's refusal to order disclosure of his identity was upheld on the ground that the defendant had failed to show that the testimony of the informant "would have been of even marginal value to the defendant's case. 789 F.2d at 170."
Id. at 1073; see also United States v. Fields, 113 F.3d 313, 324 (2d Cir.), cert. denied, 522 U.S. 976 (1997). Absent the defendant stating a basis for requiring the disclosure of this information or that the testimony of the informant would be of even marginal value to the defendant's case, the defendant's request is denied without prejudice. Without more, the Court finds that the defendant has failed to sufficiently state a basis for requiring the disclosure of this information or that the testimony of the informant would be of even marginal value to the defendant's case. Accordingly, defendant's request is denied without prejudice.
Motion for Discovery Pursuant to Rule 16 and Notice of Intention Pursuant to Rule 12
As a threshold matter, the defendant acknowledges that the government has provided some voluntary discovery including one digital recording and has provided defense counsel the ability to listen to the recordings of two alleged buys. Dkt. #25, p.17. Defendant Snow requests copies of all the recordings of all the alleged buys, including those by co-defendant Evans. Specifically, defendant Snow requests the disclosure of the following:
a) copies of any and all records, including reports and/or logs, relating to the alleged conspiracy and the arrest of all co-conspirators;
b) copies of all records, including reports and/or logs, regarding radio transmissions from the officers at any search warrant or ...