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. No. 55.
Rashawn Crule is charged in the Second Superseding Indictment
with conspiring to possess with intent to distribute heroin,
fentanyl, and cocaine in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A), and 846; possessing with intent to
distribute and distribution of heroin in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(C); possessing
heroin and fentanyl and cocaine base and cocaine with intent
to distribute in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(B) and 841(b)(1)(C); maintaining a drug
involved premises in violation of 21 U.S.C. § 856(a)(1)
and 18 U.S.C. § 2; possession of a firearm in
furtherance of drug trafficking crimes in violation of 18
U.S.C. §924(c)(1)(A)(i); and being a felon in possession
of a firearm in violation of 18 U.S.C. §§
922(g)(1), 924(a)(2), and 2. Dkt. No. 217. Mr. Crule filed an
omnibus motion seeking production and disclosure of
information including a bill of particulars (Dkt. No. 191),
which the government opposed (Dkt. Nos. 287). I heard oral
argument on November 1, 2017, at which time I denied as moot
Mr. Crule's omnibus demands but reserved on his request
for a bill of particulars. Minute Entry for 11/1/2017.
Demand for a Bill of Particulars
Crule moves pursuant to Rule 7(f) of the Federal Rules of
Criminal Procedure for a bill of particulars. Dkt. No. 191,
p. 2. Under Rule 7(f), a defendant may request a bill of
particulars “to identify with sufficient particularity
the nature of the charge pending against him, thereby
enabling 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. Bortnovsky, 820 F.2d 572, 574 (2d
of particulars “should not function to disclose
evidence, witnesses, and legal theories to be offered by the
Government at trial or as a general investigative tool for
the defense.” United States v. Henry, 861
F.Supp. 1190, 1197 (S.D.N.Y. 1994). Rather, “[a] bill
of particulars 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. Walsh, 194 F.3d 37, 47 (2d Cir.
bears the burden to show that “non-disclosure of the
requested particulars would lead to prejudicial surprise at
trial or would adversely affect defendant's
rights.” United States v. Duarte, No.
13-CR-204A, 2014 WL 29366, at *1 (W.D.N.Y. Jan. 3, 2014)
(Scott, M.J.); United States v. Jones, No.
13-CR-193A, 2014 WL 2800780, at *3 (W.D.N.Y. June 19, 2014)
(McCarthy, M.J.). “In deciding a motion for a bill of
particulars, the important question is whether the
information sought is necessary, not whether it is
helpful.” United States v. Conley, No.
00-CR-816 DAB, 2002 WL 252766, at *4 (S.D.N.Y. Feb. 21,
2002). The court has largely unfettered discretion to deny a
bill of particulars, United States v. Panza, 750
F.2d 1141, 1148 (2d Cir. 1984), especially where the
information sought by the defendant is disclosed in the the
indictment, pretrial discovery, or in some other form.
United States v. Barnes, 158 F.3d 662, 665 (2d Cir.
1998); see also United States v. Messina, No.
11-CR-31(KAM), 2012 WL 463973, at *10 (E.D.N.Y. Feb. 13,
2012) (stating that “[i]n determining whether a
defendant has shown such necessity, the trial court must
examine the totality of the information available to the
defendant, including the indictment and general pre-trial
Crule argues generally that this Court should exercise its
discretion to direct the government to file a bill of
particulars. Dkt. No. 191, p. 2. He offers no reasons why
further particularization is necessary in his case. The
government contends that the indictment is sufficiently clear
to allow Mr. Crule to identify the nature of the charges
against him, that it has disclosed all of the relevant,
required discovery, and therefore, that a bill of particulars
is not necessary. Dkt. No. 287, pp. 4-5. It contends that the
indictment and the “plethora of evidence” already
disclosed provide “a virtual roadmap” for
navigating his case. Dkt. No. 287, p. 5. In this matter, I
agree with the government. “A bill of particulars is
not necessary where the government has made sufficient
disclosures concerning its evidence and witnesses by other
means.” United States v. Calvente, No. S3
12-CR-732, 2013 WL 4038952, at *2 (S.D.N.Y. July 26, 2013).
I find that some information that Mr. Crule seeks is not the
proper subject of a bill of particulars. For example,
regarding the charged conspiracy, Mr. Crule seeks details
such as “the precise date . . . . [on] which it is
alleged that Mr. Crule became a member of the conspiracy,
” “the location for the alleged cocaine that was
located, ” “the names of the alleged purchasers
from the premises, ” and “the exact date, time,
and place Mr. Crule allegedly possessed a firearm.”
Dkt. No. 191, pp. 2-5. However, “[a] bill of
particulars is not properly ordered to advise a defendant of
the ‘whens, ' ‘wheres, ' and ‘with
whoms' of the charged conspiracy.”
Calvente, 2013 WL 4038952 at *1; Jones,
2014 WL 2800780, at *4. Nor is a bill of particulars meant to
identify the government's evidence and witnesses for the
defense. Henry, 861 F.Supp. at 1197. For these
reasons, Mr. Crule's request for a bill of particulars
(Dkt. No. 191) is denied.
hereby ORDERED pursuant to 28 U.S.C §
Decision and Order be filed with the Clerk of the Court.
OBJECTIONS to this Decision and Order must be filed
with the Clerk of this Court within fourteen (14) days after
receipt of a copy of this Decision and Order in accordance
with Federal Rule of Criminal Procedure 59 and Local Rule of
Criminal Procedure 59.
parties are reminded that, pursuant to Rule 59 of the Local
Rules of Criminal Procedure for the Western District of New
York, “written objections . . . shall specifically
identify the portions of the proposed findings and
recommendations to which objection is made and the basis for
such objection, and shall be supported by legal
authority.” Failure to comply with ...