Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Kimmons

United States District Court, W.D. New York

January 10, 2018

UNITED STATES OF AMERICA,
v.
OLIVER KIMMONS, 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.

         PRELIMINARY STATEMENT

         The defendant, Oliver Kimmons (“the defendant”), is charged with having violated Title 21 U.S.C. §§ 846, 841(a)(1) and 856(a)(1). He is also charged with having violated Title 18 U.S.C. §§ 1591(a) and 1591(b)(1). Dkt. #37. He has filed an omnibus motion wherein he seeks: (1) disclosure of grand jury minutes and exhibits; (2) identity of informants; (3) preservation of rough notes of law enforcement; (4) Rule 16 Fed. R. Crim. P. discovery; (5) Brady, Giglio and Jencks materials; (6) notice of the government's intent to offer evidence pursuant to Rules 404(b), 608 and 609 of the F.R.E.; (7) a bill of particulars; and (8) permission to file additional motions. The defendant also moves to dismiss the superseding indictment “for outrageous government conduct” and suppression of evidence. Dkt. #s 25, 26 and 41.

         The government has filed its opposition to the requests of the defendant. Dkt. #s 27 and 26, 46.

         DISCUSSION AND ANALYSIS

         1. The Defendant's Request for Disclosure of Grand Jury Minutes

         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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.