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United States v. Mihalko

United States District Court, Second Circuit

September 5, 2013



H. KENNETH SCHROEDER, Jr., 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 September 20, 2012.


The defendant, Misty Mihalko ("Mihalko"), along with seven others, is charged in an eight-count, Indictment (Dkt. #1) with conspiracy to commit firearms offenses (Count 1) and transporting firearms purchased outside of New York State into New York State (Count 2). Presently pending is Mihalko's omnibus discovery motion. Dkt. #66. This Court's Report, Recommendation and Order on defendant Mihalko's motion to suppress will be filed separately. What follows is this Court's Decision and Order addressing defendant Mihalko's non-dispositive omnibus discovery motion.


Exclusion of Statements by Non-testifying Co-conspirators

Pursuant to Bruton v. United States, 391 U.S. 123 (1968) and the Sixth Amendment to the United States Constitution, the defendant requests that the Court preclude the admission into evidence of all post-arrest statements by non-testifying coconspirators/co-defendants which may implicate the defendant in any way. Dkt. #66, ¶¶11-14. In support of her request, defendant Mihalko claims that she "has received discovery of post-arrest statements by some coconspirators or co-defendants, however, she cannot know whether the government will seek to use such evidence against her, or even if other statements exist." Id. at ¶14.

In its response, the government states that "[t]he government may introduce statements of non-testifying co-conspirators as proof of the conspiracy." Dkt. #77, p.3. 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. Any request to exclude such statements at the trial, is a matter left to the discretion of the trial judge.

Bill of Particulars

The defendant seeks the following information with respect to Count 1 of the Indictment: the exact date defendant Mihalko joined the alleged conspiracy; the manner in which she joined the conspiracy; the identity of all known, but unnamed coconspirators; each individual with which defendant Mihalko had an agreement with respect to the conspiratorial goal and the nature of any such agreements; whether it is alleged that defendant Mihalko had knowledge of the purchasing and transportation of the firearms; exactly how she "knew" of the purchasing and/or transportation of the firearms; the specific locations in the Western District of New York in which defendant Mihalko engaged in the conspiracy; the other unnamed locations in which the conspiracy took place; the precise conduct of defendant Mihalko alleged to establish the conspiracy elements of combination and agreement; the overt acts of defendants intended to be proven at trial; the exact date, time and place these alleged offenses occurred; the identity of the alleged purchasers including any confidential informant and/or police officers or others acting on behalf of the government. Dkt. #66, ¶16(a)-(m).

In its response to defendant Mihalko's request for particularization of the conspiracy charge, the government asserts that what the defendant seeks is a bill of particulars regarding the development of and the defendant's involvement throughout the conspiracy. In addition, the government asserts that it should not be required to furnish particulars relating to the formation of a conspiracy, including when and how it was formed and when a particular defendant joined, because such details need not be proven at trial. Finally, the government states,

In the instant case, it must be noted the defendant fails to articulate any facts upon which the Court could conclude the defendant has met his [sic] burden of establishing need. As set forth in the Indictment, this is a straight-forward gun conspiracy. The defendant has been provided with all discovery in this matter. In light of this information, the discovery provided to the defense, and the straight-forward nature of case, there is no need for a bill of particulars.

Dkt. #77, p.7 (internal citations omitted).

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 straight-forward nature of 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. 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. ...

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