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United States v. Neal

United States District Court, W.D. New York

March 28, 2017

UNITED STATES OF AMERICA,
v.
JAY NEAL, Defendant.

          DECISION AND ORDER

          H. KENNETH SCHROEDER, JR. United States Magistrate Judge

         This case was referred to the undersigned by the Hon. Frank. P. Geraci, Jr. in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report on dispositive motions.

         PRELIMINARY STATEMENT

         The defendant, Jay Neal (“the defendant”) is charged in a multiple count indictment with having violated Title 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(C), 856(a)(1) and Title 18 U.S.C. §§ 924(c)(1)(A)(i), 922(g)(1), 924(a)(2), 922(k) and 924(a)(1). Dkt. #10. He has filed an omnibus discovery motion wherein he seeks the following:

(A) A Bill of Particulars;
(B) Revelation of Identity of Informants;
(C) Discovery Pursuant to Rule 16 and Notice of Intention Pursuant to Rule 12 of the F. R. Crim. P.;
(D) Production of Brady, Giglio and Jencks materials;
(E) Grand Jury Transcripts;
(F) Disclosure of Evidence Pursuant to Rules 404(b), 608 and 609 of the Federal Rules of Evidence;
(G) Permission to Voir Dire Government Experts Outside the Presence of the Jury;
(H) An Audibility Hearing;
(I) Preservation of Rough Notes and Other Evidence;
(J) Permission to Join in the Co-Defendant's Motions; and
(K) Permission to File Other Motions.

Dkt. #12.

         The government has filed its response to these requests. Dkt. #13.

         A. Defendant's Request for a Bill of Particulars

         The defendant argues that he has not been provided with “any information or evidence linking [him] to a conspiracy to possess with intent to distribute cocaine or marijuana in any amounts” and therefore, his request for a bill of particulars is “necessary because the charges in the indictment are so general they do not advise the defendant of the specific acts of which he is accused.” Dkt. #12, pp. 4-5, ¶ 15.

         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). The charge in Count 1 of the Indictment, along with the discovery materials provided or to be provided by the government, clearly inform the defendant of the essential facts of ...


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