Opinion
No. 04 Cr. 424 (RWS).
January 3, 2005
HONORABLE DAVID N. KELLEY, One St. Andrew's Plaza, New York, NY, United States Attorney for the Southern District of New York, JACOB W. BUCHDAHL, Assistant US Attorney Of Counsel.
STEWART ORDEN, ESQ., New York, NY, Attorney for Defendant.
OPINION
Defendant Brandon Green ("Green") has moved for a bill of particulars pursuant to Rule 7(f), Fed.R.Crim.P., the immediate disclosure of Brady, Giglio and Jencks Act material, the identification of any and all unindicted alleged co-conspirators, a list of all witnesses the government intends to call for its case-in-chief, and a severance of trial pursuant to Rules 12(b)(5), 8(b), and 14, Fed.R.Crim.P. Green also seeks to join in all other discovery requests made by co-defendants. The government has opposed Green's motion, which is denied for the reasons set forth below.
Following amendments to Rule 12 effective December 1, 2002, subsection (b)(5) of Rule 12, Fed.R.Crim.P., no longer exists. Rule 12(b)(3)(D) now addresses motions to sever charges or defendants under Rule 14.
Prior Proceedings
A grand jury returned the indictment in this action on May 6, 2004, charging Green and nineteen co-defendants with conspiring to distribute and to possess with intent to distribute at least one kilogram of heroin from 1999 up to and including May 2004, in violation of 21 U.S.C. § 846.
Green, along with his co-defendants and others, is alleged to have been a member of a criminal organization in the Bronx that controlled a three-block strip of Daly Avenue between East 179th Street and Bronx Park South (the "Daly Avenue Organization" or the "Organization") from at least 1999 through May 2004. According to the indictment, the Organization sold heroin all day and late into the night during the period identified in the indictment, conducting tens of thousands of hand-to-hand heroin transactions. The Organization is alleged to have sold individual "glassine" bags of heroin, typically stamped with so-called brand names such as "Sean John" and "J. Lo."
According to the indictment, some members of the Daly Avenue Organization acted as "managers," who both sold heroin directly to retail customers and also provided heroin on consignment to "workers" or "pitchers" in the Organization. Workers and pitchers would then sell the heroin to customers, paying the managers for the heroin as they were able to sell it. Workers and pitchers in the Organization also acted as "steerers" according to the indictment, directing customers on Daly Avenue to other workers or to managers to complete sales of heroin.
Green and his co-defendants are alleged to have committed a number of overt acts in furtherance of the conspiracy, including the sale by Green of heroin stamped "J. Lo" in the vicinity of Daly Avenue in the Bronx on January 22, 2003.
Many of Green's co-defendants were arrested on May 11, 2004. Green was arrested and arraigned on the underlying indictment on or about June 2, 2004. He filed the instant motion on October 21, 2004. Following further briefing, the motion was initially set for oral argument on November 17, 2004. After an adjournment, the motion was taken on submission on December 1, 2004.
Discussion Green Is Not Entitled To A Bill Of Particulars
Green 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). Rule 7(f), as the Court of Appeals for our Circuit has explained, "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. Simply put, a defendant may not employ a bill of particulars as a general investigative tool. See Ballesteros Gutierrez, 181 F. Supp. 2d at 356. The purpose of a bill of particulars is "to inform the defendant as to the crime for which he must stand trial, not to compel disclosure of how much the government can prove and how much it cannot nor to foreclose the government from using proof it may develop as the trial approaches." United States v. Malinsky, 19 F.R.D. 426, 428 (S.D.N.Y. 1956).
Green argues that the indictment merely states that Green is alleged to have sold heroin identical in name to the brand that the Organization was allegedly selling. According to Green, the government has provided a large quantity of audiotapes, documentary evidence and physical evidence, but Green does not appear on any of the videotapes or in any of the recorded telephone calls. In view of the "voluminous amount" of discovery produced (Def. Mem. at 3), and in the absence of the government's response to particularized demands relating solely to Green's role in the conspiracy, Green claims that it is all but impossible for his counsel to evaluate the government's case adequately and provide effective representation for Green.
To the extent that Green seeks a bill of particulars in order to ascertain or preview the specific evidence possessed by the government that relates to Green's "limited role in the conspiracy" (Def. Mem. at 3), a bill of particulars is not warranted. See, e.g., Ballesteros Gutierrez, 181 F. Supp. 2d at 356; Henry, 861 F. Supp. at 1197. A bill of particulars is likewise inappropriate, as it has not been shown that the charges of the indictment are so general that they fail to advise Green of the specific acts of which he is accused. To the contrary, the indictment in this action sets forth the nature of the charge against Green, namely a conspiracy to distribute and to possess with intent to distribute at least one kilogram of heroin from 1999 up to and including May 2004. It also identifies a number of Green's alleged co-conspirators, describes the alleged conspiracy and the manner in which the conspiracy functioned, and sets forth more than twenty overt acts purportedly committed by Green and his co-defendants in furtherance of the conspiracy, including the names of the defendant involved in the overt act, the date, the location, and, in many instances, the approximate amount of heroin involved. In view of these specific details, it is concluded that the indictment sufficiently informs Green of the nature of the charge against him, and Green's motion for a bill of particulars is denied. The Disclosure of Brady, Giglio and Jencks Act Material Is Unwarranted At This Time
Green'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 Green's counsel has submitted a declaration in conjunction with the filing of the moving papers, the declaration does not contain the requisite certification under Local Criminal Rule 16.1, or any mention of 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 Green'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.
Green seeks the immediate disclosure of exculpatory evidence or material pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and of impeachment evidence or material pursuant to Giglio v. United States, 405 U.S. 150 (1972). Green also seeks the accelerated production of material under the Jencks Act, 18 U.S.C. § 3500.
Brady and its progeny do not require the immediate disclosure of all exculpatory material upon a defendant's request. Rather, as the Court of Appeals for this Circuit has recently stated, the government's obligation is to disclose Brady material in sufficient time for the defense to make effective use of it at trial. See United States v. Coppa, 267 F.3d 132, 144 (2d Cir. 2001). As a trial date has not yet been set in this action, Green's request for the immediate disclosure of Brady material is premature.
Moreover, in response to Green's request for Brady material, the government has made a good faith representation to the Court and to defense counsel that it recognizes and has complied with its disclosure obligations under Brady, and will continue to comply with those obligations. The courts of this Circuit have repeatedly denied pretrial requests for discovery orders pursuant to Brady where the government has made such representations.See, e.g., United States v. Rueb, No. 00 Cr. 91 (RWS), 2001 WL 96177, at *6 (S.D.N.Y. Feb. 5, 2001); Perez, 940 F. Supp. at 553; United States v. Schwimmer, 649 F. Supp. 544, 549 (E.D.N.Y. 1986). Green has suggested no reason to believe that the government will not comply with its obligations under Brady and Coppa; accordingly, the Court accepts the government's representation and Green's request for the immediate disclosure of Brady material is denied.
Green has also sought the immediate disclosure of Giglio material, i.e., Brady material of an impeachment nature. See generally United States v. Bagley, 473 U.S. 667, 676 (1985) (noting that impeachment evidence "falls within the Brady rule"). "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 Coppa, 267 F.3d at 142); 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 18 U.S.C. § 3500, that is, the Friday before the trial is scheduled to begin, or further in advance of a witness's testimony if additional time is reasonably required to review the material. 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") (citing United States v. Santiago, 174 F. Supp. 2d 16, 40-41 (S.D.N.Y. 2001); Perez, 940 F. Supp. at 553). As Green has offered no reason to conclude that the schedule proposed by the government is unreasonable, Green's request for the immediate disclosure of Giglio material is denied and the government is directed to produce such material to Green's counsel no later than 5:00 p.m. on the Friday prior to trial in this action, or sufficiently in advance of a witness's testimony if additional time is reasonably required to review the material.
In view of the representations of the government with regard to Jencks Act materials, and in the absence of any objection to the government's representations by Green, Green's request for the accelerated production of Jencks Act materials is denied and the government is directed to produce such materials no later than 5:00 p.m. on the Friday prior to the testimony of any witness, or, with regard to voluminous Jencks Act materials concerning any particular witness, further in advance of that witness's testimony.
The Identification of Unindicted Alleged Co-Conspirators Is Not Necessary At This Time
Green seeks disclosure of the names and identities of any and all unindicted alleged co-conspirators. In view of the government's representation that it does not intend at this time to present evidence regarding any unindicted co-conspirators, no relief is granted as to Green's request.
The Government Need Not Produce a Witness List At This Time
Green requests that the government provide a list of the names and addresses of all individuals it intends to call as witnesses in its case-in-chief prior to trial. A defendant is not automatically entitled to such a list prior to trial. See Fed.R.Crim.P. 16; see also United States v. Bejasa, 904 F.2d 137, 139 (2d Cir. 1990). A district court may compel the government to provide such a pretrial disclosure of the identity of the government's witnesses, however, in the exercise of the court's discretion.See Bejasa, 904 F.2d at 139; United States v. Cannone, 528 F.2d 296, 300-01 (2d Cir. 1975). A request for pretrial disclosure of the identity of the government's witnesses should not be granted unless the defendant makes "a specific showing that disclosure [is] both material to the preparation of his defense and reasonable in light of the circumstances surrounding his case." Id.; see also Bejasa 904 F.2d at 139-40. An "abstract, conclusory claim that such disclosure [is] necessary to [the] proper preparation for trial" is not sufficient to warrant a pretrial disclosure by the government. Cannone, 528 F.2d at 301-02.
Green has argued that "Green is specifically identified in only one overt act of a one count indictment" and that "[t]herefore" the government should be directed to provide the requested witness information. (Def. Mem. at 8.) This conclusory argument offers no basis to conclude that the disclosure required would be both material to the preparation of Green's defense and reasonable in light of the circumstances of this case. Moreover, the government has represented that it has not yet determined all of the witnesses that would testify against Green and that the eventual witness list is likely to include both cooperating defendants and undercover police officers, the disclosure of whose identities is not practical or appropriate at this time. Accordingly, Green's request for disclosure of the identities of the government's witnesses is denied at this time, with leave to renew if the government has not provided a list of the witnesses it intends to call in its case-in-chief ten business days prior to the start of trial.
The Severance Of Trial Is Not Appropriate
Green seeks to have his case severed from that of his co-defendants pursuant to Rules 8 and 14, Fed.R.Crim.P., on the grounds that substantial prejudice would result from proceeding to trial with his co-defendants due to the so-called spillover effect.
Rule 8(b), Fed.R.Crim.P., provides that defendants alleged to have participated in related criminal conduct may properly be charged in the same indictment. See Fed.R.Crim.P. 8(b). Indeed, "`there is a preference in the federal system for joint trials of defendants who are indicted together.'" United States v. Salameh, 152 F.3d 88, 115 (2d Cir. 1998) (quoting Zafiro v. United States, 506 U.S. 534, 537 (1993)); see also United States v. Miller, 116 F.3d 641, 679 (2d Cir. 1997). This preference "is particularly strong where, as here, the defendants are alleged to have participated in a common plan or scheme."Salameh, 152 F.3d at 115; see also United States v. Cardascia, 951 F.2d 474, 482 (2d Cir. 1991); United States v. Turoff, 853 F.2d 1037, 1042 (2d Cir. 1988). As the Court of Appeals for our Circuit has explained,
It would impair both the efficiency and the fairness of the criminal justice system to require . . . that prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying, and randomly favoring the last-tried defendants who have the advantage of knowing the prosecution's case beforehand.Salameh, 152 F.3d at 115 (quoting Richardson v. Marsh, 481 U.S. 200, 210 (1987)).
A defendant urging severance shoulders the "`extremely difficult burden'" of showing that he would be so prejudiced by joinder that he would be denied a constitutionally fair trial.United States v. Casamento, 887 F.2d 1141, 1149 (2d Cir. 1989) (quoting United States v. Carpentier, 689 F.2d 21, 27 (2d Cir. 1982)); see also United States v. Rosa, 11 F.3d 315, 341 (2d Cir. 1993); Torres, 901 F.2d at 230. A court "should grant a motion for severance `only if there is a serious risk that a joint trial would compromise a specific trial right of the moving defendant or prevent the jury from making a reliable judgment about guilt or innocence.'" Miller, 116 F.3d at 679 (quotingRosa, 11 F.3d at 341); see also Zafiro, 506 U.S. at 539;United States v. Aulicino, 44 F.3d 1102, 1116 (2d Cir. 1995). The decision to sever multi-defendant trials is committed to the sound discretion of the trial court. See Opper v. United States, 348 U.S. 84, 95 (1954); Salameh, 152 F.3d at 115.
A showing by a defendant that he may suffer some prejudice, or may have a better chance for acquittal at a separate trial, is insufficient to warrant severance. See Torres, 901 F.2d at 230 (citing United States v. Burke, 700 F.2d 70, 83 (2d Cir. 1983)). "Differing levels of culpability and proof are inevitable in any multi-defendant trial and, standing alone, are insufficient grounds for separate trials." United States v. Chang An-Lo, 851 F.2d 547, 557 (2d Cir. 1988) (quoting United States v. Carson, 702 F.2d 351, 366 (2d Cir. 1983)); see also United States v. Zackson, 6 F.3d 911, 922 (2d Cir. 1993); United States v. Birkett, No. 99 Cr. 338 (RWS), 1999 WL 689992, at *9 (S.D.N.Y. Sept. 2, 1999) ("[T]he mere fact that one or more defendants in a narcotics conspiracy played a comparatively minor role is not a basis for severance."). Moreover, prejudicial spillover warranting severance is generally "an unlikely occurrence when all the defendants are charged under the same conspiracy count." Salameh, 152 F.3d at 115 (citingUnited States v. DiNome, 954 F.2d 839, 843-44 (2d Cir. 1992));see also United States v. Vega, 458 F.2d 1234, 1236 (2d Cir. 1972) ("Evidence at the joint trial of alleged co-conspirators that, because of the alleged conspiratorial nature of the illegal activity, would have been admissible at a separate trial of the moving defendant is neither spillover nor prejudicial."); accord Rosa, 11 F.3d at 341.
Green has failed to establish an adequate basis to justify severance here. The entire case revolves around the hand-to-hand sales of heroin in a small area of the Bronx, New York, and Green's role in the offense is not significantly more minor than that of any other defendant. Green has not established sufficient prejudice that would result from a joint trial, whether from a spillover effect or otherwise, his motion for severance is denied.
Green's Request To Join Other Discovery Requests Is Denied As Moot
Green seeks to join in all other discovery requests made by co-defendants. As no such discovery requests are presently before this Court, the request is denied as moot, with leave granted to renew.
Conclusion
For the reasons set forth above and upon the conditions stated, Green's motion and his various requests are denied.
It is so ordered.