United States District Court, W.D. New York
HUGH B. SCOTT, Magistrate Judge.
This matter is referred to the undersigned to hear and determine pretrial matters pursuant to 28 U.S.C. § 636 (b)(1)(A) and, pursuant to 28 U.S.C. § 636(b)(1)(B), to submit proposed findings of fact and recommendations for the disposition of any motion excepted by 28 U.S.C. § 636(b)(1)(A) (Docket No. 7).
The instant matter before the Court is the defendant's omnibus motion (Docket No. 16) which seeks the following relief: filing of a Bill of Particulars; identify informants; produce discovery; produce Federal Rules of Evidence 404(b), 608, and 609 materials and disclosures; produce Brady materials; produce Jencks Act materials; and preservation of agents' rough notes. Defendant also moved to suppress evidence and statements because there was an absence of probable cause for the search warrant issued to search defendant's alleged residence on Grand Island (Docket No. 36), arguing that he wants an evidentiary hearing as to the motion to suppress (Docket No. 36, Def. Atty. Affirm. at 10; see Docket No. 38). The hearing would consider the reliability of the confidential source used to support issuance of the search warrant (Docket No. 36, Def. Atty. Affirm. at 10).
The Government has filed responding papers (Docket Nos. 19, 37) also seeking reciprocal discovery (Docket No. 19, Gov't Response at 19-20), and oral argument was heard on August 5, 2014 (Docket No. 38).
Defendant is charged with possession of cocaine with intent to distribute on or about April 16, 2013 (Docket No. 6, Indict.), as well as a criminal forfeiture allegation of $11, 144 seized on that date (id.).
On April 16, 2013, the Buffalo DEA Task Force and the Niagara Falls Police Department Narcotics Division used a confidential source to arrange the purchase of cocaine from defendant. The Government contends that this confidential source was corroborated by police officers. (Docket No. 37, Gov't Response at 2.) The confidential source indicated that he made weekly purchases of contraband from defendant (id.). On April 16, 2013, law enforcement agents directed the confidential source to text defendant to meet him in Niagara Falls, New York, for a purchase by the source (id.). Members of the Task Force set up surveillance in the area of C Street, Niagara Falls, the site of the meeting (id.). At approximately 5:50 pm, agents observed defendant park the vehicle on 19 C Street. The confidential source entered defendant's vehicle and observed cocaine in the center console of that vehicle. (Id.) The confidential source exited the vehicle to get money, and reported to law enforcement that the source saw approximately nine ounces of cocaine in the center console (id. at 3). At 6 pm, law enforcement apprehended defendant and found 322 gross grams of cocaine in the vehicle (id.). Agents also found a cell phone which purportedly was used to text messages to arrange that meeting (Docket No. 36, Def. Atty. Affirm. at 2, Ex. A, DEA Report of Apr. 17, 2013, at ¶ 4). Defendant's vehicle was impounded and searched, with agents finding documents listing defendant's address to be 2153 Bedell Road, Apt. B9, Grand Island, New York ("Bedell Road premises") (Docket No. 37, Gov't Response at 3). Agents then applied to Grand Island Town Justice Mark Frantzel for a warrant to search the Bedell Road premises (id.), and obtained that warrant. Later that evening, agents executed this warrant, recovering over $11, 000, a black digital scale, paperwork, defendant's state identification card, and a date book (id.); no drugs were found there (Docket No. 36, Def. Atty. Affirm. at 3).
I. Bill of Particulars
Defendant moves for filing of a Bill of Particulars, arguing that the Indictment lacked specificity and that one police report underlying this prosecution contained inconsistent statements (Docket No. 16, Def. Atty. Affirm. at 2-4). 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 and 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).
Upon review of the Indictment, the Court finds that defendant is not entitled to a Bill of Particulars inasmuch as the defendant is sufficiently advised of the charges against him to allow for the proper preparation of a defense, to avoid surprise at trial, and to protect the defendant from double jeopardy.
II. Identity of Informants
Defendant seeks the pre-trial disclosure of the identity of any informants in this case (Docket No. 16, Def. Atty. Affirm. at 4-7). The Government argues that defendant has not satisfied his burden of showing particularized need for the identity of informants (Docket No. 19, Gov't Response at 9).
The Government is not required to furnish the identities of informants unless it is essential to the defense, Roviaro v. United States , 353 U.S. 52, 60-61 (1957); United States v. Saa , 859 F.2d 1067, 1073 (2d Cir.), cert. denied, 489 U.S. 1089 (1988). Nor does Rule 16 require the Government to disclose the names of witnesses prior to trial, United States v. Bejasa , 904 F.2d 137, 139 (2d Cir.), cert. denied, 498 U.S. 921 (1990). Moreover, the Government has stated that it believes that disclosure of the informant's identification would subject the informant to personal danger from retribution by the defendant (Docket No. 19, Gov't Response at 10).
Defendant has not established that the pre-trial disclosure of the identities of informants is essential to his ...