Opinion
02 Crim. 0596 (LAK)
August 22, 2002
ORDER
Defendant moves for a bill of particulars, other discovery, and to suppress a photo identification.
Defendant has not complied with Local Crim. R. 16.1. Accordingly, insofar as the defendant seeks a bill of particulars and other discovery, his motion is denied. See, e.g., United States v. Roberts, No. 01 Crim. 0410 (RWS), 2001 WL 1602213, at *12 (S.D.N.Y. Dec. 14, 2001); United States v. Jailall, No. 01 Crim. 0069 (RWS), 2000 WL 1368055, at *4 (S.D.N.Y. Sept. 20, 2000); United States v. Guevara, No. 99 Crim. 445 (AGS), 1999 WL 639720, at *2 (S.D.N.Y. Aug. 23, 1999); United States v. Ahmad, 992 F. Supp. 682, 684-85 (S.D.N.Y. 1998).
Defendant's motion to suppress the photo identification rests on the fact that the sheets containing the photographs shown to the witness each contained the name, biographical information and criminal history of the person depicted. He argues that "[t]here is no way of knowing . . . whether the witness identified the photograph of the defendant or identified him by use of the printed material." (Def. Mem. 30) He further suggests that the identification be suppressed because he lacks information concerning the circumstances, such as the content of any statements by the agents, in which it was made and that this warrants a hearing.
At oral argument, defendant tacitly abandoned reliance on the presence of biographical and criminal history information.
The Court has reviewed the photographs used in the array and concludes that there was nothing suggestive about the images themselves or the array as a whole. While the inclusion of the names might have been problematic in different circumstances, it is most unlikely that this was so here. The evidence before the Court suggests that the witness to whom the array was shown does not speak English and, even if he did, knew the defendant by a name other than that printed on the sheet containing defendant's photograph. Further, the witness knew the defendant from prior encounters and identified him to the government by one of his aliases prior to the identification procedure, thus raising substantial doubt as to whether any suggestiveness of the procedure was undue. Accordingly, the motion is denied. However, as the government candidly acknowledges that its papers do not utterly exclude the possibility that the witness knew sufficient English to make out the defendant's name or that he knew the defendant also by the name printed in the sheet containing his photograph, the denial will be without prejudice to renewal at trial, either upon a voir dire or on cross-examination of the witness, should he testify, as the Court subsequently may determine.
All but three of the 26 photographs in the array, including defendant's, were printouts from an INS mug shot profile data base and shared an identical format. The other three were printouts from a different data base, and the format, while somewhat similar to the others, differed in a number of respects such as type fonts and, to a minor degree, layout. Nevertheless, there is no evidence at all to suggest that the difference in format between the two groups of images could have "cued" the witness that a person of interest to the government was in one group as opposed to the other. In any case, the group containing defendant's photograph was so large that the point is immaterial.
Motion denied as above.
SO ORDERED.