United States District Court, W.D. New York
DECISION AND ORDER
KENNETH SCHROEDER, JR. UNITED STATES MAGISTRATE JUDGE
case was referred to the undersigned by the Hon. Lawrence J.
Vilardo, in accordance with 28 U.S.C. § 636(b)(1), for
all pretrial matters and to hear and report on dispositive
motions. Dkt. #4.
defendant, Damar Currie (“the defendant”), is
charged in a four-count Indictment with possession with
intent to distribute and distribution of cocaine and cocaine
base in violation of Title 21 U.S.C. Sections 841(a)(1) and
841(b)(1)(C). Dkt. #1. On January 6, 2017, the defendant
filed an omnibus discovery motion wherein he sought
production and disclosure of various items. Dkt. #8. The
government filed a response to these demands. Dkt. #9. At a
proceeding on January 25, 2017, this Court denied nearly all
of defendant's omnibus discovery demands, reserving
decision on his request for a bill of particulars and for the
identity of the informant.
for a Bill of Particulars
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); 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, U.S., 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
Bortnovsky, 820 F.2d at 574. “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), abrogated on other grounds by United States v.
Marcus, 628 F.3d 36, 41 (2d Cir. 2010); see also
United States v. Chen, 378 F.3d 151, 163 (2d Cir. 2004).
charges in the Indictment, along with the discovery materials
provided or to be provided by the government, clearly inform
the defendant of the essential facts of the crimes charged
which involve a discrete number of drug transactions. The
defendant is not entitled to, nor is he in need of, the
“particulars” of his alleged crimes. Accordingly,
the defendant's request for a bill of particulars is
of the Informant
defendant requests that the government be ordered to identify
the confidential informant involved in the controlled
purchases underlying the Indictment. It is the defendant who
bears the burden of showing that the disclosure of an
informant's identity is necessary and that, absent
disclosure, the defendant will be deprived of his right to a
fair trial. United States v. Fields, 113 F.3d 313,
324 (2d Cir. 1997). The defendant argues that the
confidential informant participated in the alleged drug
transactions and therefore, has material information.
However, the informant's participation in the
transactions does not compel disclosure of his identity
absent some showing that his testimony would be material to
Second Circuit Court of Appeals held in United States v.
Saa, 859 F.2d 1067 (2d Cir. 1988), cert.
denied, 489 U.S. 1089 (1989):
leading Supreme Court case on this question, Roviaro v.
United States, 353 U.S. 53, 77 S.Ct. 623, ...