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United States v. Currie

United States District Court, W.D. New York

March 24, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DAMAR CURRIE, Defendant.

          DECISION AND ORDER

          H. KENNETH SCHROEDER, JR. UNITED STATES MAGISTRATE JUDGE

         This 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.

         PRELIMINARY STATEMENT

         The 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.

         DISCUSSION AND ANALYSIS

         Request for a Bill of Particulars

         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); 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).

         The 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 DENIED.

         Identity of the Informant

         The 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 the defense.

         As the 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):

         The leading Supreme Court case on this question, Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, ...


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