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United States v. Newbern

United States District Court, W.D. New York

November 16, 2017

UNITED STATES OF AMERICA,
v.
ANTHONY NEWBERN, 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, 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.

         The 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.

         DISCUSSION AND ANALYSIS

         1. Defendant's Demand for Grand Jury Transcripts

         The 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).

Furthermore,
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).

         Therefore, defendant's request for disclosure of the grand ...


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