United States District Court, W.D. New York
DECISION AND ORDER
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 on dispositive motions. Dkt. #2.
The defendant, Anthony McCutcheon ("the defendant"), is charged in a Second Superseding Indictment, along with eight co-defendants, with having violated Title 21, United States Code, Section 846 (conspiracy to possess with intent to distribute, and to distribute 28 grams or more of cocaine base) (Count 1), Title 21, United States Code, Section 856(a)(1) (maintaining a drug-involved premises) (Count 3), Title 18, United States Code, Section 924(c)(1)(A) (possession of a firearm in furtherance of a drug trafficking crime) and Title 18, United States Code, Sections 922(g)(1) and 924(a)(2) (felon in possession of a firearm and ammunition). Dkt. #33. Defendant McCutcheon filed an omnibus discovery motion (Dkt. #81), the government filed its opposition to the instant motion, as well as a cross motion for discovery (Dkt. #102) and oral argument on defendant McCutcheon's motion, as well as co-defendants' motions was held on December 18, 2014. Based on the discovery materials disclosed by the government, defendant McCutcheon agreed with the Court that with the exception of his request for a bill of particulars, requests for disclosure of Brady, Jencks and Giglio material and his request for the identity of informants, his omnibus discovery motion could be denied as moot. Shortly thereafter, the Court was advised of an issue concerning Mr. McCutcheon's retained counsel. After considerable delay and ample opportunity for Mr. McCutcheon to retain new counsel, new counsel was appointed to represent Mr. McCutcheon. Newly appointed counsel was given an opportunity to review the file and the motions filed by prior counsel. On June 22, 2015, counsel appeared before this Court and advised the Court that he adopted the motions filed by prior counsel. Accordingly, this Court took the defendant's pre-trial motions under advisement as of June 22, 2015. What follows is this Court's Decision and Order on defendant McCutcheon's request for a bill of particulars, requests for disclosure of Brady, Jencks and Giglio material and his request for the identity of informants and the government's cross-motion for discovery. The defendant's motion to suppress (Dkt. #83) remains pending and will be the subject of a separate Report, Recommendation and Order.
DISCUSSION AND ANALYSIS
Bill of Particulars
In response to defendant McCutcheon's request for a detailed bill of particulars, the government states that defendant's request for particularization should be denied because the defendant has failed to articulate any facts upon which the Court could conclude that the defendant has met his burden of establishing need. Dkt. #102, p.10. In addition, the government maintains that it "has also provided the defendant with copies of the intercepted wire communications, FBI 302s detailing seizures made during the investigation, wiretap applications and affidavits and search warrant affidavits. In light of this information, the other discovery provided to the defense, and the straight-forward nature of the case, there is no need for a bill of particulars." Id.
The defendant's request is 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).
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).
Request for Early Disclosure of Brady, Jencks and Giglio Material
By his requests, defendant McCutcheon seeks the early disclosure of Brady, Jencks and Giglio material. The government has stated that it is aware of its disclosure duties under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972) and subsequent cases. The government has further stated that it agrees to provide impeachment Brady material in accordance with the schedule set by the District Court prior to trial and no later than when the government produces and delivers Jencks Act material in this case. Dkt. #102, pp.13-14. As a result of these representations, the defendant's request for such materials, i.e., Brady and Giglio is denied, but the government is hereby directed to comply with the Second Circuit Court of Appeals' holding in United States v. Coppa, 267 F.3d 132 (2d Cir. 2001) and United States v. Rodriguez, 496 F.3d 221 (2d Cir. 2007) by making timely disclosure of those materials to the defendant.
"[A]s a general rule, Brady and its progeny do not require immediate disclosure of all exculpatory and impeachment material upon request by a defendant." Coppa, at 146. The prosecution is obligated to disclose and turn over Brady material to the defense "in time for its effective use." Coppa, at 144. With respect to impeachment material that does not rise to the level of being Brady material, such as Jencks statements, the prosecution is not required to disclose and turn over such statements until after the witness has completed his direct testimony. See 18 U.S.C. § 3500; Rule 26.2 Fed.R.Crim.P.; In Re United States, 834 F.2d 283 (2d Cir. 1987). However, if the government has adopted a policy of turning such materials over to the defendant prior to trial, the government shall comply with that policy; or in the alternative, produce such materials in accordance with the scheduling order issued by the trial judge.
The defendant also seeks the early disclosure of any reports and statements of government witnesses not less than six weeks prior to the start of trial. Dkt. #81, pp.27-28. In its response, the government consents to provide Jencks material one week prior to the commencement of trial. Dkt. #102, p.14. The defendant's motion is denied based on the representations of counsel for the government. With respect to those statements encompassed by this statute, the prosecution is not required to disclose and turn over Jencks statements until after the witness has completed his direct testimony. See 18 U.S.C. § 3500; Rule 26.2 Fed.R.Crim.P.; In Re United States, 834 F.2d 283 (2d Cir. 1987). However, if the government has adopted a policy of turning such materials ...