Opinion
No. 09 Cr. 525 (JFK).
January 15, 2010
Memorandum Opinion Order
This nine-defendant case involves an alleged conspiracy to distribute heroin and launder narcotics proceeds. Defendant Harold Lopez ("Lopez" or "Defendant") is charged only with conspiring to distribute heroin. Before the Court are motions filed by Lopez requesting (1) severance of his trial from that of his co-defendants, and (2) a bill of particulars and additional discovery to which he claims he is entitled under various legal theories. The motions are denied.
I. Motion to Sever
There is no dispute that defendants are properly joined under Rule 8 of the Federal Rules of Criminal Procedure. Defendant seeks to sever his case under Rule 14, which provides the Court discretion to order a separate trial or grant a severance if it appears that the defendant will be substantially prejudiced by joinder. Fed.R.Crim.P. 14(a); see also United States v. Werner, 620 F.2d 922, 928 (2d Cir. 1980) (holding that defendant "must show not simply some prejudice but substantial prejudice")." [T]here is a preference, in the federal system, for the joint trial of defendants indicted together. . . ."United States v. Rosa, 11 F.3d 315, 341 (2d Cir. 1993). "This preference is particularly strong where, as here, the defendants are alleged to have participated in a common plan or scheme."United States v. Salameh, 152 F.3d 88, 115 (2d Cir. 1998). The Court should grant severance "only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent a jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 506 U.S. 534, 539 (1993).
Lopez contends that the evidence produced by the Government of the alleged conspiracy is "damning" to his co-defendants, but is "unconnected" to him. According to Lopez, the only evidence connecting him to the alleged conspiracy is (1) one "innocuous" intercepted phone call between Lopez and a co-defendant, and (2) several intercepted phone calls between other co-defendants in which the parties to the call reference Lopez. Lopez claims that this evidence is insufficient for a jury finding of guilt, and therefore "it would be a severe miscarriage of justice not to sever the indictment into pre-informant and post-informant trials." (Def. Br. at 6 — 7.)
Defendant's brief argument fails to articulate how the circumstances of this case require severance. As an initial matter, Defendant "has made no showing that there will be evidence at trial introduced against his co-defendants that would not be admissible if he were to be tried separately." United States v. Harris, No. 00 Cr. 105, 2000 WL 1229263, at *2 (S.D.N.Y. Aug. 29, 2000); see also United States v. Spinelli, 352 F.3d 48, 55 (2d Cir. 2003) (observing that evidence regarding a co-defendant's actions would still be admissible at a separate trial since it is "relevant to proving the nature and scope of the conspiracy in which both were, to differing degrees, involved").
Also, to the extent that Lopez contends that he faces "spillover" prejudice from what he considers to be more damaging evidence against his co-defendants, the Court of Appeals "has repeatedly recognized that joint trials involving defendants who are only marginally involved alongside those heavily involved are constitutionally permissible." United States v. Locascio, 6 F.3d 924, 947 (2d Cir. 1993). The Government acknowledges that only a few of the intercepted calls relate directly to Lopez, but nonetheless, with the record presently before the Court, it cannot be said that this is a case in which "the sheer volume and magnitude of the evidence against one defendant so dwarfs the proof presented against his co-defendant that a severance is required to prevent unacceptable spillover prejudice." Spinelli, 352 F.3d at 55.
Defendant has not established that he would suffer substantial prejudice from a single trial, and thus his motion is denied.
II. Motion for Bill of Particulars and Additional Discovery
Lopez moves for a bill of particulars and also filed a separate discovery motion which details 51 categories of additional material to which he claims he is entitled. As a procedural matter, the motions are barred for failure to comply with Local Criminal Rule 16.1. See United States v. Armstrong, 99 Cr. 997, 2006 WL 2280462, at *1 (S.D.N.Y. Aug. 7, 2006) (denying similar motions for failure to comply with Rule 16.1); United States v. Ahmad, 992 F. Supp. 682, 684-85 (S.D.N.Y. 1998) (same). Rule 16.1 provides that "no motion addressed to a bill of particulars . . . or to discovery shall be heard unless" the movant files a simultaneous affidavit certifying that counsel "has conferred with [opposing counsel] in an effort in good faith to resolve by agreement the issues raised by the motion." The affidavit filed by Lopez's counsel relating to the instant motions contains no mention of any good faith effort to confer with the Government.
Moreover, even if Lopez's counsel satisfied this procedural requirement, the motions would have been denied on their merits. "A bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused." United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990) (quotation omitted). "Acquisition of evidentiary detail is not the function of a bill of particulars." Id. (quotation omitted). "So long as an indictment and discovery sufficiently enable a defendant to avoid surprise and prepare for trial, a bill of particulars in not warranted." United States v. Bennett, 96 Cr. 126, 2007 WL 2388897, at *5 (S.D.N.Y. Aug. 21, 2007) (quotation omitted). Here, the Indictment details the dates of the alleged conspiracy, enumerates an overt act committed by each defendant, including Lopez, and specifies the day and location where such act occurred. The Government represents that it has produced voluminous discovery in the matter, which includes phone records, wire intercepts, search warrant materials, and Drug Enforcement Agency summaries of seizures of narcotics and narcotics proceeds. Lopez's motion lacks merit as it is clear that he has been supplied with sufficient information to prepare for trial and prevent unfair surprise.
There is no reason to compel discovery as Government maintains that save Defendant's request for grand jury materials, it already has produced, or will produce prior to trial, all material responsive to Defendant's discovery demands. Lopez is not entitled to the grand jury materials. Federal Rule of Criminal Procedure 6(e)(2) provides that grand jury proceedings are to be held in secret, and Lopez has not shown a "particularized need that outweighs the need for secrecy." United States v. Moten, 582 F.2d 654, 662 (1978).
Seemingly forgotten by Defendant within his own sundry list of discovery demands is his request for a hearing pursuant to United States v. Wade, 388 U.S. 218 (1967), to address the admissibility of the identification evidence. Defendant did not raise this request in his memorandum of law and nowhere has he explained why a hearing is necessary. To the extent Defendant's request stands, Defendant has made no showing that identification evidence was unduly suggestive, and thus any concerns by defense counsel regarding this evidence can be explored at trial through cross-examination. See United States v. Kassir, 04 Cr. 356, 2008 WL 2653952, at *2 (S.D.N.Y. July 3, 2008). To the extent this Order does not specifically address any of Defendant's other discovery demands that were not addressed in his memorandum of law, those requests are also denied as Defendant has not articulated why he is entitled to the material.
Whereas the Government consented in its response to Defendant's motion that:
• it will provide notice of any evidence that it will offer at trial pursuant to Rule 404(b) of the Federal Rules of Evidence two weeks prior to trial,
• it will produce Giglio and Jencks Act material at least one business day before the witness to which the evidence relates is scheduled to testify,
• it will produce transcripts of the audio and/or video tapes that it intends to introduce in its case-in-chief "shortly before trial,"
the Government is directed to abide by this schedule. The transcripts should be produced to defense counsel at least ten days before trial.
CONCLUSION
For the foregoing reasons, Defendant's motions are denied.