United States District Court, S.D. New York
OPINION AND ORDER
G. Schofield United States District Judge
Victor Oswaldo Lopez Flores, Carlos Jose Zavala Velasquez,
Juan Manuel Avila Meza, Mario Guillermo Mejia Vargas and
Ludwig Criss Zelaya Romero (collectively,
“Defendants”) move for bills of particulars and
the production of discovery pursuant to Federal Rule of
Criminal Procedure 16 (“Rule 16”) and
Brady. The Government moves to compel the production of
reciprocal discovery. The Court has considered all of the
parties' submissions, including their letter dated March
20, 2017. For the reasons below, Defendants' motions are
denied and the Government's motion is granted.
Bill of Particulars
seek bills of particulars that specify, among other things,
(1) the dates each Defendant joined and last participated in
the alleged conspiracy, (2) details regarding each overt act
committed in furtherance of the conspiracy, including the
dates and locations of each act, and (3) the identities of
the alleged co-conspirators, both indicted and un-indicted.
Their requests are denied.
Federal Rule of Criminal Procedure 7(f), a court “may
direct the government to file a bill of particulars.”
“A bill of particulars enables a defendant to prepare
for trial, to prevent surprise, and to interpose a plea of
double jeopardy should he be prosecuted a second time for the
same offense.” United States v. Ramirez, 609
F.3d 495, 503 (2d Cir. 2010) (internal quotation marks
omitted). Thus, a bill “is 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. Chen, 378 F.3d 151,
163 (2d Cir. 2004) (internal quotation marks omitted).
“Moreover, a bill of particulars is not necessary where
the government has made sufficient disclosures concerning its
evidence and witnesses by other means.” Id.
(internal quotation marks omitted). “Whether to grant a
bill of particulars is generally a decision entrusted to the
sound discretion of the district court.”
Ramirez, 609 F.3d at 502.
of evidentiary detail is not the function of the bill of
particulars.” United States v. Torres, 901
F.2d 205, 234 (2d Cir. 1990) (internal quotation marks
omitted); accord United States v. Bonventre, 646 F.
App'x 73, 79 (2d Cir. 2016) (summary order) (citing
Torres, 901 F.2d at 234). “[A] bill of
particulars is not a general investigative tool, a discovery
device or a means to compel the government to disclose
evidence or witnesses to be offered at trial.”
United States v. Abakporo, 959 F.Supp.2d 382, 389
(S.D.N.Y. 2013) (internal quotation marks omitted).
“Accordingly, Courts in this District have routinely
denied requests for bills of particulars concerning the
‘wheres, whens, and with whoms' of the
crime.” United States v. Wey, No. 15 Cr. 611,
2017 WL 237651, at *19 (S.D.N.Y. Jan. 18, 2017) (internal
quotation marks omitted).
Superseding Indictment and the Government's other
disclosures apprise Defendants of the specific acts of which
they are accused. The Superseding Indictment alleges that, in
or around June 2014, Co-Defendant Fabio Porfirio Lobo
introduced Defendants, who were members of the Honduran
National Police, to “two purported Mexican drug
traffickers, who were in fact confidential sources . . .
acting at the direction of the” DEA. At the meeting,
which was videotaped, Defendants allegedly displayed a map of
Honduras and “illustrated law enforcement checkpoints
and a planned route for the cocaine.” The Superseding
Indictment further alleges that Defendants each “agreed
to accept a bribe in the amount of approximately $100, 000,
and to pay their subordinates” additional bribes
“in order to provide armed security for the cocaine as
it transited Honduras before being imported into the United
Superseding Indictment is supplemented by discovery related
to the June 2014 meeting, such as videos obtained by the
confidential sources and draft translations of transcripts of
the meeting. The Government also provided search warrant
affidavits that describe its investigation and evidence. The
Government avers that its disclosures enabled Defendants to
identify the two confidential sources who were present at the
June 2014 meeting -- Jose Santos-Pena and his son, Jose
Santos-Hernandez -- and 10 other potential witnesses.
Moreover, the Government's opposition brief to the
instant motions contains further allegations as to each
Defendants' involvement in the charged conspiracy,
including alleged conduct dating back to approximately 2004
for Defendants Zalaya Romero and Mejia Vargas.
the Superseding Indictment and the Government's
disclosures, Defendants have not justified the need for the
broad-ranging demands in their respective motions. See,
e.g., Torres, 901 F.2d at 233-34 (affirming
denial of bill of particulars that sought information
regarding when the defendant was “alleged to have
joined” narcotics conspiracy, the identities of
co-conspirators and the “precise dates and
locations” of overt acts); see also United States
v. Parris, No. 13 Cr. 17, 2014 WL 2745332, at *5
(S.D.N.Y. June 17, 2014) (“It is well settled that
defendants need not know the means by which it is claimed
they performed acts in furtherance of the conspiracy nor the
evidence which the Government intends to adduce to prove
their criminal acts. Details as to how and when the
conspiracy was formed, or when each participant entered it,
need not be revealed before trial.” (internal quotation
marks omitted)). Each Defendant's motion for a bill of
particulars is denied.
Rule 16 Discovery
also seek further discovery under Rule 16. Their requests are
16(a)(1)(E) requires the Government in part “to permit
the defendant to inspect and to copy . . . documents”
that are (1) “within the government's possession,
custody, or control” and (2) “material to
preparing the defense.” Evidence is material under Rule
16 “if it could be used to counter the government's
case or to bolster a defense; information not meeting either
of those criteria is not to be deemed material within the
meaning of the Rule.” United States v.
Stevens, 985 F.2d 1175, 1180 (2d Cir. 1993); accord
United States v. Wallace, No. 15 Cr. 794, 2016 WL
4367961, at *12 (S.D.N.Y. Aug. 11, 2016). “The
defendant must make a prima facie showing of
materiality and must offer more than the conclusory
allegation that the requested evidence is material.”
United States v. Urena, 989 F.Supp.2d 253, 261
(S.D.N.Y. 2013) (internal quotation marks and citations
omitted); see also United States v. Maniktala, 934
F.2d 25, 28 (2d Cir. 1991) (holding that the defendant must
make a prima facie showing of materiality).
the requirement that the documents must be within the
Government's possession, custody or control, the
prosecutor need not have “direct control” of the
requested documents. United States v. Giffen, 379
F.Supp.2d 337, 343 (S.D.N.Y. 2004). Rather, “the
prosecution must disclose documents material to the defense
(1) that it has actually reviewed, or (2) that are in the
possession, custody, or control of a government agency so
closely aligned with the prosecution so as to be considered
part of the ‘prosecution team.'” United
States v. Chalmers, 410 F.Supp.2d 278, 289-90 (S.D.N.Y.
2006) (Chin, J.). However, “[t]he prosecutor ...