Opinion
No. 02 Cr. 897 (LTS)
November 7, 2002
MEMORANDUM OPINION AND ORDER
Defendant Gary Carrington seeks an order (i) compelling the United States of America (the "Government") to supplement the indictment in this case (the "Indictment") with a bill of particulars; (ii) directing the Government to supplement its Rule 16 discovery; (iii) directing the Government to identify' immediately all documents that it intends to rely on in its case-in-chief; (iv) requiring the immediate production of all materials subject to disclosure under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and/or 18 U.S.C. § 3500; (v) requiring early notice of the Government's intent to offer evidence of prior bad acts under Federal Rule of Evidence 404(b); and (vi) directing the production of various other information and material. For the reasons set forth below, Defendant's motion is denied.
Background
The Indictment charges Defendant with willfully and knowingly stealing postage stamps, valued at approximately $2,720, from the United States postal service, selling stamps without authorization, and receiving postage stamps that he knew to have been stolen with intent to convert them, all in violation of Title 18, United States Code, section 641. The facts as set forth in the Complaint allege that Defendant purchased postage stamps with convenience checks drawn on a credit card account in Defendant's name that had been previously closed because of unpaid bills.
The Complaint in the case was filed on June 5, 2002, and the Indictment on July 10, 2002. Defendant filed the instant motion on September 13, 2002. The Government responded on September 30, 2002; no reply papers were submitted.
Discussion
Defendant's Request For a Bill of Particulars
Under Rule 7(f) of the Federal Rules of Criminal Procedure, a defendant may seek a bill of particulars in order to permit the defendant 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). In his request for a bill of particulars, Defendant asks the Government (i) to describe any criminal acts of the Defendant known to the Government but not named in the Indictment, and (ii) to state how the Defendant actually performed the criminal acts alleged in the Indictment. Rule 7(f) does not require the level of detail sought by Defendant.
The decision whether to order the filing of a bill of particulars rests within the sound discretion of the district court. United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999) (citing United States v. Barnes, 158 F.3d 662, 665-66 (2d Cir. 1998)). "In exercising that discretion, the court must examine the totality of the information available to the defendant — through the indictment, affirmations, and general pre-trial discovery — and determine whether, in light of the charges that the defendant is required to answer, the filing of a bill of particulars is warranted." United States v. Bin Laden, 92 F. Supp.2d 225, 233 (S.D.N.Y. 2000).
"Generally, if the information sought by defendant is provided in the indictment or in some acceptable alternate form, no bill of particulars is required." Bortnovsky, 820 F.2d at 574. The prosecution generally need not particularize all of its evidence, so long as the defendant is adequately informed of the charges against him. Torres, 901 F.2d at 234; United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988). "The proper scope and function of a bill of particulars is not to obtain disclosure of evidence or witnesses to be offered by the Government at trial. . . ." United States v. Strawberry, 892 F. Supp. 519, 526 (S.D.N.Y. 1995) (citing United States v. Salazar, 485 F.2d 1272, 1278 (2d Cir. 1973)). Here, the Government has represented that it has already produced all Rule 16 discovery in its possession, including the Complaint, which provides dates, times, and places concerning Defendant's acts, and copies of the checks and credit card records discussed in the Complaint. Together with the Indictment, these materials adequately inform Defendant of the charges against him; his request for a bill of particulars is therefore denied.
Rule 16 Material
Defendant also requests an order requiring the immediate production of a variety of evidentiary material pursuant to Rule 16 of the Federal Rules of Criminal Procedure. The Government represents in its response to the motion that it has produced all Rule 16 material that is in its possession, and Defendant has not specified any Rule 16 material he contends has not been produced. Therefore, to the extent that Defendant requests material within the scope of Rule 16, that request is denied as moot at this time.
Request for Identification of Documents the Government Intends to Use in its Case-In-Chief
Defendant requests that the Government identify, pursuant to Rule 16(a), which documents produced in discovery that it intends to use at trial, including those documents that will be relied upon or referred to in its case-in-chief and to impeach any defense witnesses. Rule 16(a) provides, in pertinent part:
Upon request of the defendant the government shall permit the defendant to inspect and copy . . . documents . . . which are within the possession, custody or control of the government, and which are material to the preparation of the defendant's defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant.
Fed.R.Cr.P. 16(a)(1)(C). It is clear that Rule 16(a)(1)(C) does not require the Government to identify specifically which documents it intends to use as evidence or for impeachment. It merely requires that the Government produce documents falling into the three enumerated categories. United States v. Nachamie, 91 F. Supp.2d 565, 569 (S.D.N.Y. 2000). Defendant's request for identification of documents is therefore denied.
Brady Material
Defendant requests that the Government produce (presumably, immediately) all exculpatory materials within the meaning of Brady v. Maryland, 373 U.S. 83 (1963). Under Brady, the Government is obligated to provide favorable evidence to the defense where the evidence is material to guilt or punishment. Brady, 373 U.S. at 87; In re United States v. Coppa, 267 F.3d 132, 139 (2d Cir. 2001). "Favorable evidence includes not only evidence that tends to exculpate the accused, but also evidence that is useful to impeach the credibility of a government witness." Coppa, 267 F.3d at 139 (citing Giglio v. United States, 405 U.S. 150, 154 (1972)). Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different. "A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682 (1985). Only evidence that is material, as defined by the reasonable probability test set forth in Bagley, must be disclosed under Brady. See Coppa, 267 F.3d at 141 ("the current Brady law . . . imposes a disclosure obligation narrower in scope than the obligation to disclose all evidence favorable to the defendant") (citing Kyles v. Whitely, 514 U.S. 419 (1995)) (internal quotation marks omitted).
As a general rule, Brady does not require immediate disclosure of exculpatory evidence and impeachment material upon defendant's request. Coppa, 267 F.3d at 146. "There is no Brady violation unless there is a reasonable probability that earlier disclosure of the evidence would have produced a different result at trial." Coppa, 267 F.3d at 144. In Coppa, the Second Circuit set the timing of Brady disclosures as follows: "[T]he prosecutor must disclose `material' (in the Agurs/Bagley sense) exculpatory and impeachment information no later than the point at which a reasonable probability will exist that the outcome would have been different if an earlier disclosure had been made." Coppa, 267 F.3d at 142. Accordingly, "as long as a defendant possesses Brady evidence in time for its effective use, the government has not deprived the defendant of due process of law simply because it did not produce the evidence sooner." Coppa, 267 F.3d at 144. Moreover, it is the Government's responsibility to determine what evidence is material and when such evidence should be disclosed in time for its effective use. See Coppa, 267 F.3d at 143 ("The prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of `reasonable probability' is reached.") (citing Kyles v. Whitely, 514 U.S. at 437).
The trial of this matter has not yet been scheduled. Defendant has not shown that general Brady disclosure so far in advance of the trial is necessary to ensure due process of law and Court sees no reason to so conclude. Moreover, the Government has represented in its response to the motion that it is not aware of any Brady material pertaining to Defendant, but that it will produce such material if it becomes known, in a timely fashion. The Government's ultimate production of material exculpatory and impeachment evidence must be timed so as to enable Defendant to use the material effectively at trial.
Giglio Material
Defendant also requests that the Court direct the Government to provide (again, presumably immediately) any material useful to impeach the credibility of Government witnesses, including prior statements of the witnesses. In Coppa,, the Court of Appeals for the Second Circuit made clear that the timing requirement for disclosure of such Giglio material is the same as that for exculpatory materials required to be disclosed under Brady. See Coppa,, 267 F.3d at 139. In other words, Giglio material must be disclosed in time to permit its effective use at trial. Id. at 146. Thus, just as the Government has no obligation to provide Brady-type exculpatory evidence immediately upon Defendant's demand, the Government has no obligation to provide Giglio-type impeachment material immediately upon Defendant's demand. As is the general rule with Brady material, it is the Government's responsibility to determine what Giglio evidence is material and when such evidence must be disclosed to permit its effective use. Furthermore, with respect to non- Giglio prior statements of Government witnesses, the Court has no power to accelerate the statutory timetable established by Title 18, United States Code, section 3500, which provides, in relevant part, that "no statement or report in the possession of the United States which was made by a Government witness . . . shall be the subject of subpena (sic), discovery, or inspection until said witness has testified on direct examination in the trial of the case." 18 U.S.C.A. § 3500(a) (West 2000).
Defendant's request for an order requiring immediate production of Brady and Giglio materials is therefore denied.
Motion for Notice of 404(b) Evidence
Defendant requests that the Court direct the Government to disclose (again, presumably immediately) evidence that may be proffered at trial pursuant to Rule 404(b) of the Federal Rules of Evidence. Rule 404(b) provides, in pertinent part:
[e]vidence of other crimes, wrongs, or acts . . . may . . . be admissible . . . provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial . . . of the general nature of any such evidence it intends to introduce at trial.
What constitutes reasonable notice depends upon the circumstances of the particular case. See United States v. Kevin, No. 97 Cr. 763, 1999 WL 194749, at *13 (S.D.N.Y. April 7, 1999) (collecting cases). The purpose of the notice provision is "to reduce surprise and promote early resolution" of any challenge to admissibility of the proffered evidence. To ensure adequate time for the efficient pretrial consideration of any disputes concerning Rule 404(b) material, the Government is hereby directed to make its 404(b) disclosures and any related motions in limine no fewer than three weeks before trial. Any such motion practice by the defense shall be commenced as promptly as possible and in no event fewer than ten days prior to trial.
Miscellaneous Requests
Defendant also includes in his motion various requests that fall outside the scope of Rule 16, and that are therefore not properly made. Specifically, paragraphs 10, 126-28, 30, and 33-35 contain requests not authorized by Rule 16. No alternative ground for requiring production of the requested materials having been offered, those requests are denied.
The first paragraph 10. Paragraphs 12 and 13 of the request are misnumbered 10 and 11, but paragraph references in this opinion refer to the paragraph numbers as they appear in the motion unless otherwise indicated.
Conclusion
For the foregoing reasons, Defendant's discovery requests are denied in their entirety.