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. Frank P.
Geraci, Jr., in accordance with 28 U.S.C. § 636(b)(1),
for all pretrial matters and to hear and report on
defendant, Anthony Newbern (“the defendant”), is
charged, along with a number of co-defendants, with having
violated Title 21 U.S.C. § 846 (Count 1). Dkt. #1. He
has filed an omnibus discovery motion wherein he seeks (1)
production of grand jury transcripts; (2) production of all
Rule 16, Fed. R. Crim. P. materials and information to which
he is entitled; (3) exclusion of statements by non-testifying
co-conspirators; (4) a bill of particulars; (5) revelation of
identity of informants; (6) production of Brady,
Giglio and Jencks material; (7) disclosure of
evidence pursuant to Rules 404(b), 608 and 609 of the F.R.E.;
(8) an audibility hearing; (9) joinder in motions filed by
the co-defendants in this case. The defendant also seeks
permission to conduct voir dire of government
experts outside the presence of the jury. Dkt. #150.
government has filed its opposition to the defendant's
requests and has made a reciprocal request for discovery
pursuant to Rule 16(b) of the Fed. R. Crim. P. Dkt. #160.
Defendant's Demand for Grand Jury Transcripts
defendant has moved, pursuant to Rule 6(e)(3)(C)(I) of the
Federal Rules of Criminal Procedure “for the disclosure
of transcripts of all testimony before and all exhibits
considered by the grand jury that indicted” the
defendant. In support of this request, the defendant merely
asserts that he “has a particularized need for the
transcripts” because the defendant “is the
subject of a bare bones Indictment which does not state any
particular acts or overt acts that he allegedly committed in
the course of the alleged criminal activity. The
particularized need justifying disclosure is so that [the
defendant] is informed of what evidence actually exists
against him, and so he can intelligently make a decision as
to his course of action.”
It is a
long-established rule that “[t]he burden. . . is on the
defense to show that ‘a particularized need' exists
for the minutes [of the grand jury] which outweighs the
policy of secrecy.” Pittsburgh Plate Glass Co v.
United States, 360 U.S. 395, 400 (1959). The assertion
of the defendant as to her “particularized need”
is legally insufficient to require disclosure of the grand
jury proceedings as requested by her. It is pointed out that
transcripts of grand jury testimony of witnesses called by
the government to testify at trial must be made available to
the defendant pursuant to and in accordance with the
provision of 18 U.S.C. § 3500.
It is also pointed out that:
[A]n indictment valid on its face is not subject to challenge
on the ground that the grand jury acted on the basis of
inadequate or incompetent evidence.
United States v. Calandra, 414 U.S. 338, 345 (1978).
An indictment returned by a legally constituted and unbiased
grand jury, like an information drawn by the prosecutor, if
valid on its face, is enough to call for trial of the charge
on the merits. The Fifth Amendment requires nothing more.
Costello v. United States, 350 U.S. 359, 363 (1956).
defendant's request for disclosure of the grand ...