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United States v. Lobo

United States District Court, S.D. New York

March 22, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
FABIO PORFIRIO LOBO, et al., Defendants.

          OPINION AND ORDER

          Lorna G. Schofield United States District Judge

         Defendants 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.

         I. DISCUSSION

         A. Bill of Particulars

         Defendants 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.

         Under 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.

         “Acquisition 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).

         The 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 States.”

         The 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.

         Given 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.

         B. Rule 16 Discovery

         Defendants also seek further discovery under Rule 16. Their requests are denied.

         Rule 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).

         As to 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 ...


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