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United States v. Morales

United States District Court, Second Circuit

December 5, 2013



H. KENNETH SCHROEDER, Jr., Magistrate Judge.

This case was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. ยง 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #24.


The defendant, Theresa Morales ("Morales"), along with her husband, Timothy McCabe, is charged in a nine-count, Superseding Indictment (Dkt. #45) with bank fraud and conspiracy to commit bank fraud. Presently pending is Morales' omnibus discovery motion. Dkt. #50. Also pending is Morales' motion to sever counts and to sever from co-defendant McCabe.[1] Dkt. #58. What follows is this Court's Decision and Order addressing defendant Morales' non-dispositive omnibus discovery motion.


Bill of Particulars

With respect to Counts 1 through 7 alleging fraud against various financial institutions, defendant Morales seeks the following particularization: identify the name of all individuals and corporations from whom the government alleges the defendant committed fraud; specify the exact false statements upon which the government relies; and, specify the exact theory of fraud upon which the government relies. Dkt. #50, p.4. With respect to the conspiracy to commit bank fraud charge (Count 8), defendant Morales requests that the government describe each overt act in furtherance of the conspiracy. Id.

In its response, the government states,

The government maintains that the Indictment is sufficient and that the demand for a Bill of Particulars is unwarranted. The discovery provided thus far in this action provides a comprehensive picture of the defendant's culpability with respect to the charges under the indictment. The indictment sets forth clearly, in chart form, each of the victim lenders. Furthermore, the indictment sets forth in detail the false and fraudulent information contained in the loan applications Furthermore, each of the loan applications have been provided to the defendant as part of the discovery process.

Dkt. #52, p.4.

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 or she 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 Superseding Indictment, along with the discovery materials the government advises have previously been provided or will be provided forthwith by reason of this Decision and Order, clearly inform the defendant of the essential facts of the crimes charged. As a result, the defendant is not entitled to, nor is she 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 [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. Nov. 19, 2007), cert. denied, 128 S.Ct. 1690 (2008).

Based on the foregoing, this Court concludes that the allegations in the Superseding Indictment, together with the representations made by counsel for the government concerning the discovery previously provided to the defendant and those materials ordered to be disclosed herein, are more than sufficient and the demand for a bill of particulars is unwarranted. Accordingly, the defendant's request for a bill of particulars is denied.


As a threshold matter, defendant Morales prefaces her Rule 16 discovery requests with the following statement, "[t]he government has already provided the defense with many discoverable items, and this request therefore encompasses those items not previously disclosed." Dkt. #50, p.5. In its response the government states, "[t]he government has previously provided the defendant with all discoverable items in its possession. The government contends that through the voluntary discovery process, it has provided all material presently within its possession that is within the purview of Rule 16 and in compliance with Rule 12(b)(4)(B) and believes that discovery is thereby complete." Dkt. #52, p.7.

Defendant's Statements

The defendant requests copies of any written, recorded, oral or observed statements made by her and not already disclosed. Dkt. #50, p.5. In addition, defendant Morales seeks the disclosure of statements of uncharged co-defendants or co-conspirators or attributed to any uncharged co-defendant or co-conspirator, including notes, summaries or memoranda concerning such statements. Id. In its response, the government states that all written and recorded statements of the defendant and codefendant have been provided, as well as the substance of any oral statements made by the defendant before and after arrest in response to law enforcement interrogation. Rule 16(a)(1)(A) and (B) of the Federal Rules of Criminal Procedure mandates, upon a defendant's request, the disclosure of the substance of a defendant's relevant oral statements, as well as any relevant written or recorded statements made by the defendant. Accordingly, based on the government's representations that the defendant's and the co-defendant's statements have been disclosed, defendant Morales' request is denied as moot.

As noted above, by this request, defendant Morales also seeks the disclosure of all written, recorded, or oral statements made by a co-defendant/coconspirator, indicted or unindicted. Dkt. #50, p.5. Although the government did not specifically respond to this request, Rule 16(a)(1)(A) of the Federal Rules of Criminal Procedure only authorizes discovery by a defendant of his or her 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). As noted above, the government has stated that the codefendant's statements have been disclosed. Accordingly, for the foregoing reasons, defendant Morales' request is denied as moot.

With respect to defendant Morales' request for the disclosure of coconspirators' statements, the government does not specifically respond to this request. 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 for disclosure is denied.

Citing Federal Rule of Evidence 807, defendant Morales requests advance notice of any out of court statements sought to be introduced at trial against the defendant in order to avoid confusion, waste of time and unfairness at trial. Dkt. #50, pp.5-6. Rule 807 of the Federal Rules of Evidence requires that in order for a statement to be admissible, provided the requirements of 807(a) are satisfied, the proponent give the adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant's name and address. Based on the notice requirements set forth in Federal Rule of Evidence 807, the defendant's request is granted.

Discovery with Respect to FRE 702, 703 and 705

By the requests under the heading "Scientific, " defendant Morales is seeking the disclosure of any report concerning any physical or mental examination or scientific test or experiment relating to this case. Dkt. #50, p.6. Defendant Morales subsequently requests that she be provided with a list of the government's expert witnesses and the substance of any reports from those witnesses. Dkt. #50, p.6. As required by Rule 16(a)(1)(G), at the defendant's request, the government must provide to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence. Rule 16(a)(1)(G) further provides that the summary must describe the witness's opinions, the bases and reasons for those opinions and the witness's qualifications. Subject to the requirements and limitations set forth in Federal Rule of Criminal Procedure 16(a)(1)(G), defendant Morales' requests are granted.

Federal Documents and Law Enforcement Documents

By these requests, the defendant is seeking all records routinely kept by the United States government relating to any person or conduct charged in the Superseding Indictment. In addition, these requests seek all investigative reports, complaints, evidence logs, memos and other documents maintained by any federal, state or local police or law ...

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