Opinion
03 Cr. 1211 (RWS).
May 27, 2005
HONORABLE DAVID N. KELLEY, United States Attorney for the Southern District of New York, NY, W.S. WILSON LEUNG, Assistant US Attorney of Counsel.
SAM A. SCHMIDT, ESQ., New York, NY, Attorney for Defendant.
OPINION
Defendant Max Arreaga ("Arreaga") has moved for a bill of particulars pursuant to Fed.R.Crim.P. 7(f) and the immediate disclosure of Giglio and Jencks Act material concerning non-testifying co-conspirators whose statements the government anticipates introducing at trial. The government has opposed Arreaga's motion, which is denied for the reasons set forth below.
Prior Proceedings
A grand jury returned an indictment in this action on October 9, 2003 charging Arreaga with one count of conspiring to distribute and to possess with intent to distribute fifty grams and more of cocaine base ("crack"), one kilogram and more of heroin, and five kilograms and more of cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. The indictment alleges that this conspiracy ran from April 2003 through September 2003. Eight co-defendants were indicted with Arreaga.
Arreaga's Motion For A Bill Of Particulars Is Denied
Arreaga has moved pursuant to Rule 7(f), Fed.R.Crim.P., for production of a bill of particulars by the government. Under Rule 7(f), a district court "may direct the filing of a bill of particulars." Fed.R.Crim.P. 7(f). As the Second Circuit has explained, Rule 7(f) "permits the defendant to seek a bill of particulars in order to identify with sufficient particularity the nature of the charge pending against him, thereby enabling [the] 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 Cir. 1987); see also United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990). The decision to grant or deny a defendant's request for a bill of particulars rests in the sound discretion of the trial court. See United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999); United States v. Barnes, 158 F.3d 662, 656-66 (2d Cir. 1998); United States v. Perez, 940 F. Supp. 540, 550 (S.D.N.Y. 1996).
To obtain a bill of particulars, the defendant must show that the charges of the indictment are so general that they do not advise him of the specific acts of which he is accused. See Torres, 901 F.2d at 234; United States v. Henry, 861 F. Supp. 1190, 1197 (S.D.N.Y. 1994). The standard applied to the information sought is not whether it is helpful to the defense but whether it is necessary. See Henry, 861 F. Supp. at 1197;United States v. Love, 859 F. Supp. 725, 738 (S.D.N.Y.),aff'd sub nom. United States v. Roberts, 41 F.3d 1501 (2d Cir. 1994). In accordance with this principle of necessity, a bill of particulars is not required where the information sought has been made available in alternative forms. See United States v. Kelly, 91 F. Supp. 2d 580, 583-84 (S.D.N.Y. 2000); United States v. Ahmad, 992 F. Supp. 682, 684 (S.D.N.Y. 1998); see also Bortnovsky, 820 F.2d at 574.
An order directing the filing of a bill of particulars will not be issued simply to "force the Government to particularize all of its evidence." Henry, 861 F. Supp. at 1197 (quoting United States v. Cephas, 937 F.2d 816, 823 (2d Cir. 1991)) (internal quotation marks omitted). Nor will a defendant be permitted to use a request for a bill of particulars to compel the government to disclose the manner in which it will prove the charges or preview the government's evidence or legal theory. See United States v. Ballesteros Gutierrez, 181 F. Supp. 2d 350, 356 (S.D.N.Y. 2002); Perez, 940 F. Supp. at 550; United States v. Facciolo, 753 F. Supp. 449, 451 (S.D.N.Y. 1990).
Arreaga argues that the indictment fails to set forth with sufficient particularity those allegations relating to his participation in a conspiracy to distribute crack and heroin. In the absence of such particularized allegations and in view of the "voluminous amount" of discovery produced (Def. Mem. at 2), Arreaga claims that it is all but impossible for his counsel to evaluate the government's case adequately and provide effective representation.
A bill of particulars is inappropriate as it has not been shown that the charges of the indictment are so general that they fail to advise Arreaga of the specific acts of which he is accused. The indictment in this action sets forth the nature of the charge against Arreaga, namely a conspiracy to distribute and to possess with intent to distribute at least fifty grams of crack, at least one kilogram of heroin, and at least five kilograms of cocaine, from April through September of 2003. It also identifies Arreaga's co-conspirators and sets forth the overt acts committed by Arreaga and his co-defendants in furtherance of the conspiracy. In view of these specific details, the indictment sufficiently informs Arreaga of the nature of the charge against him, and Arreaga's motion for a bill of particulars is denied.
Arreaga's motion is also properly denied in light of his failure to comply with Local Criminal Rule 16.1. The Rule provides, in pertinent part, that:
No motion addressed to a bill of particulars or answers or to discovery and inspection shall be heard unless counsel for the moving party files with the court simultaneously with the filing of the moving papers an affidavit certifying that said counsel has conferred with counsel for the opposing party in an effort in good faith to resolve by agreement the issues raised by the motion without the intervention of the court and has been unable to reach such an agreement.
Local Crim. R. 16.1.
Although Arreaga's counsel has submitted a declaration in conjunction with the filing of the moving papers, the declaration does not mention counsel's efforts to confer with the government prior to filing the motion. The failure to comply with the requirements of Local Criminal Rule 16.1 provides a sufficient basis to deny Arreaga's motion for a bill of particulars. See United States v. Ojeikere, 299 F. Supp. 2d 254, 260 (S.D.N.Y. 2004); United States v. Morales, 280 F. Supp. 2d 262, 273 (S.D.N.Y. 2003); Ahmad, 992 F. Supp. at 684-85.
Arreaga's Request For Immediate Disclosure of Giglio and Jencks Act Material Is Denied
With respect to non-testifying co-conspirators, Arreaga seeks the immediate disclosure of impeachment evidence or material pursuant to Giglio v. United States, 405 U.S. 150 (1972). Arreaga also seeks the accelerated production of such material under the Jencks Act. See 18 U.S.C. § 3500.
The Jencks Act governs disclosure to the accused of prior statements made by the government's trial witnesses. See 18 U.S.C. § 3500.
Giglio material is "evidence that the defense might [use] to impeach the Government's witnesses by showing bias or interest."United States v. Bagley, 473 U.S. 667, 676 (1985). "In the Second Circuit, Giglio materials, like Brady materials, must be disclosed `in time for [their] effective use at trial.'" United States v. Giffen, No. 03 Cr. 404 (WHP), 2004 WL 1475499, at *8 (S.D.N.Y. July 2, 2004) (quoting United States v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001)); see also United States v. Canter, 338 F. Supp. 2d 460, 462 (S.D.N.Y. 2004).
The immediate disclosure of Giglio materials merely upon a defendant's request is not required. See Coppa, 267 F.3d at 140. The government has represented to the Court and to defense counsel that it intends to follow the widely accepted practice in this district of producing impeachment material when it provides prior statements of a witness pursuant to the Jencks Act (i.e., such materials shall be provided one business day prior to the day that the trial is scheduled to begin). See, e.g., Canter, 338 F. Supp. 2d at 462 (noting that "[i]t has been the practice of this Court and of other courts in this district to require that the Government produce [impeachment] materials a few days before the start of trial, usually on the Friday before a trial scheduled to start on a Monday"). However, this Court has recently required production of such materials no later than 5:00 p.m. two business prior to the commencement of trial. See U.S. v. Underwood, No. 04 CR. 424 (RWS), 2005 WL 927012, at *3 (Apr. 21, 2005).
Arreaga's request for the immediate disclosure of Giglio material is denied, and the government is directed to produce such material to Arreaga's counsel no later than 5:00 p.m. two business days prior to trial in this action, or sufficiently in advance of the introduction of a co-conspirator's statement if additional time is reasonably required to review the material.
Arreaga's request for the accelerated production of Jencks Act materials is also denied. The government is directed to produce such materials no later than 5:00 p.m. two business days prior to the anticipated introduction of statements by nontestifying co-conspirators, or, with regard to voluminous Jencks Act materials concerning any particular non-testifying co-conspirator, further in advance of the introduction of that co-conspirator's statement.
Conclusion
Based on the foregoing, Arreaga's motion for a bill of particulars and for immediate disclosure of Giglio and Jencks Act material is denied.
It is so ordered.