Opinion
00 Cr. 069 (RWS)
September 20, 2000
Hon. Mary Jo White, United States Attorney for the Southern District of New York, Marc A. Weinstein, Esq., Assistant US Attorney, New York, NY, for United States of America.
Manmohan K. Bakshi, Esq., Manhasset, N.Y. for Defendant.
Defendant Anand Jailall ("Jailall") has brought an omnibus motion for an order granting him permission to inspect various grand jury materials and to dismiss the indictment, granting him leave to take depositions of alibi witnesses by written interrogatories pursuant to Federal Rule of Criminal Procedure 15, directing the Government to provide him with a complete bill of particulars pursuant to Federal Rule of Criminal Procedure 7(f), granting him certain discovery pursuant to Federal Rule of Criminal Procedure 16(a)(1)(c), suppressing his post-arrest statements, and granting him notice of the Government's intent to use evidence of other crimes, wrongs or bad acts, pursuant to Federal Rule of Evidence 404(b).
For the reasons set forth below, the motion is denied in its entirety.
Parties
Jailall was formerly a customer service representative at Republic National Bank. He has been charged with bank fraud, in violation of 18 U.S.C. § 1344, and fraud in connection with access devices, in violation of 18 U.S.C. § 1029.
Prior Proceedings
On October 6, 1999, the Honorable Douglas F. Eaton, United States Magistrate Judge, issued an arrest warrant for Jailall. On October 29, 1999, Jailall was arrested and presented before the Honorable Michael H. Dolinger, United States Magistrate Judge. Magistrate Judge Dolinger ordered that Jailall be released upon a $25,000 personal recognizance bond and set November 29, 1999 as the preliminary hearing date. On November 29, 1999, the Honorable James C. Francis IV, United States Magistrate Judge, issued an order of continuance, pursuant to 18 U.S.C. § 3161(h)(8)(A), upon consent of the Government and Manmohan Bakshi, Esq., counsel for Jailall, extending the preliminary hearing date to December 29, 1999. On December 29, 1999, the Honorable Ronald L. Ellis, United States Magistrate Judge, extended the order of continuance for an additional 30 days, also upon consent of the parties, to January 28, 2000.
On January 26, 2000, an indictment was returned against Jailall charging him with the above-mentioned violations. The charges arose out of Jailall's employment with Republic National Bank. Specifically, the Government charges that Jailall (1) from in or about January 1998 through in or about August 1999, caused Republic National Bank to issue unauthorized bank account access cards and caused in excess of approximately $232,000 to be withdrawn from these accounts, and (2) from in or about February 1999 through in or about August 1999, caused unauthorized credit cards to be issued in other individuals' names, and obtained or attempted to obtain in excess of $1,600 through the unauthorized use of such credit cards.
The instant motion was filed on June 28, 2000, and submissions were received through July 26, 2000, at which time the matter was deemed fully submitted.
The Government's response was filed on July 26, 2000. Jailall requested leave until August 16, 2000 to file a reply, which request was granted, however no additional materials were submitted.
Discussion I. Motions To Inspect Grand Jury Materials And To Dismiss The Indictment
Jailall seeks disclosure of a long list of grand jury materials, including records of the empanelment of the grand jurors, names of witnesses appearing before the grand jury, names of people present during grand jury proceedings and deliberations, and transcripts of any relevant grand jury proceedings.In order to be entitled to disclosure of grand jury proceedings a defendant must make a showing of "particularized need" that outweighs the government's strong interest in the secrecy of grand jury proceedings. See United States v. Sells Eng'g, 463 U.S. 418, 443 (1983); United States v. Moten, 582 F.2d 654, 663 (2d Cir. 1978). This rule of secrecy is embodied in Fed.R.Crim.P. 6(e)(3)(C)(i), which provides that a defendant may obtain access to grand jury materials only "upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury." This requirement extends to legal instructions given to the grand jury. See, e.g., United States v. Wallach, No. S 87 Cr. 985, 1988 WL 140832, at *1 (S.D.N.Y. Dec. 16, 1988). The standard applied to disclosure is "stringent." United States v. Trochelmann, No. 98 Cr. 1276, 1999 WL 294992, at *2 (S.D.N.Y. May 11, 1999). Grand jury proceedings are entitled to a "presumption of regularity." See United States v. Torres, 901 F.2d 205, 232 (2d Cir. 1990) (citations omitted); Trochelmann, 1999 WL 294992, at *3. Thus, "[s]peculation and surmise as to what occurred before the grand jury" are not sufficient to overcome this presumption. United States v. Wilson, 565 F. Supp. 1416, 1436-37 (S.D.N.Y. 1983). "A review of grand jury minutes is rarely permitted without specific factual allegations of government misconduct." Torres, 901 F.2d at 233; see also United States v. Kalevas, 622 F. Supp. 1523, 1525 (S.D.N.Y. 1985) (court would not inspect grand jury minutes absent factual support for allegations of government misconduct).
Jailall does not make a showing of any irregularity in the grand jury proceedings but, rather, asserts that he is entitled to inspect the grand jury materials on the theory that if anything improper took place during the grand jury proceedings then that would form a basis for dismissal of the indictment. Thus, in support of his motion to inspect the records of the empanelment of the grand jury, Jailall states that he is entitled to a grand jury consisting of a cross-section of the community. While it is correct that Jailall is entitled to such a grand jury, he has offered no factual allegations, let alone evidence, to indicate that this right was violated. Therefore, there is no basis upon which to grant the motion. See, e.g., United States v. DiLorenzo, No. S1 94 Cr. 303, 1995 WL 169003, at *5 (S.D.N.Y. April 10, 1995) (denying motion to inspect records pertaining to composition of grand jury and legal qualifications of grand jurors).
Similarly, Jailall states that he is entitled to obtain information regarding the names of unauthorized persons that appeared before the grand jury because "any non compliance with [Federal Rule of Criminal Procedure 6(d)] will provide sufficient grounds to support" a motion to dismiss. Again, Jailall's motion must be denied because he fails to offer any allegations that the Government failed to comply with Rule 6(d). See, e.g., DiLorenzo, 1995 WL 169003, at *5 n. 8 (denying request for disclosure of names of all persons other than grand jurors who were present during proceedings and whether such persons were authorized to be present). Finally, Jailall contends that he is entitled to inspect the grand jury minutes in order to determine whether the Government engaged in any of a long list of improper acts which would entitle him to dismissal.
Aside from an allegation regarding the presentation of circumstantial evidence, Jailall fails even to allege that there was misconduct by the Government, let alone offer any evidence to that effect. With respect to the issue of circumstantial evidence, Jailall offers only the conclusory statement of his attorney that the evidence was legally insufficient to support an indictment, and the speculation that the Government may not have properly instructed the grand jury as to the legal effect of such evidence. Thus, he falls far short of the stringent standards for disclosure of grand jury materials. See United States v. Bennett, No. 97 Cr. 289, 1997 WL 633458, at *2 (S.D.N.Y. Oct. 10, 1997) (speculation and conclusory statements insufficient to warrant disclosure of grand jury proceedings); Kalevas, 622 F. Supp. at 1525 ("If an inspection of grand jury minutes were to be granted based on the paucity of `information and belief' allegations here submitted, in effect it would mandate the granting of such applications in almost every case — a result contrary to the long established policy in this circuit and upheld by the Supreme Court.") (citations omitted).
Finally, one of Jailall's motions to inspect grand jury materials is entitled "motion to inspect and dismiss." However, Jailall does not explicitly request the dismissal of his indictment on any grounds. Moreover, since Jailall seeks to inspect the grand jury materials in order to determine whether a basis for dismissal exists, any such motion would be premature at this point.
Jailall does include an allegation that "[a]lthough, the defendant was arraigned upon a felony complaint on or about October 26, 1999, no preliminary hearings was held in that Court and the defendant was not arraigned on the Indictment until February 3, 2000." There is no explanation offered, however, as to why this allegation is made. Assuming that the implication is that Jailall seeks a dismissal on speedy trial grounds, there is no basis to grant such a motion. The time for the preliminary hearing in this action was extended on two different occasions by Magistrate Judges in this District, upon consent of the defendant and pursuant to 18 U.S.C. § 3161(h)(8)(A), resulting in a preliminary hearing date of January 28, 2000. The Government obtained an indictment on January 26, 2000, prior to the preliminary hearing date. Thus, there was no violation of the Speedy Trial Act. See 18 U.S.C. § 3161(b) and 3161(h)(8)(A).
II. Motion For Leave To Take Deposition Of Alibi Witnesses
Jailall seeks an order pursuant to Federal Rule of Criminal Procedure Rule 15(a) to authorize the taking of the depositions by written interrogatories of three alibi witnesses for use at trial. Rule 15(a) permits a court to order the taking of depositions prior to trial "whenever due to exceptional circumstances it is in the interest of justice that the testimony . . . be taken and preserved for use at trial."
"[E]xceptional circumstances required to justify the deposition of a prospective witness are present if the witness' testimony is material to the case and if the witness is unavailable to appear at trial." United States v. Johnpoll, 739 F.2d 702, 709 (2d Cir. 1984). Unavailability is defined "according to the practical standard of whether under the circumstances the [proponent of depositions] has made a good-faith effort to produce the person to testify at trial." See id. at 709 (citations omitted). The moving party bears the burden of demonstrating that exceptional circumstances are present. See United States v. Whiting, 308 F.2d 537, 541 (2d Cir. 1962). The decision whether to grant such a motion lies within the sound discretion of the trial court. See id.
Jailall has not met the foregoing standards. First, Jailall fails to articulate the relevance or materiality of the witnesses other than to state conclusorily that their testimony is "material." Second, Jailall has failed to establish the unavailability of these witnesses, but states merely that "said Witnesses may be unable to attend, or may be prevented from attending the trial." As no evidence has been presented as to whether these witnesses are willing to appear on Jailall's behalf, why they might be prevented from appearing, or even whether Jailall has made any efforts to contact them, the motion is denied. See, e.g., United States v. Figueroa, No. 95 Cr. 0823, 1996 WL 68529, at *1 (S.D.N.Y. Feb. 1, 1996); United States v. Merritt, No. 90 Cr. 767, 1991 WL 79235, at *4 (S.D.N.Y. May 7, 1991).
III. Motion For Discovery
Jailall seeks to compel the Government to comply with certain discovery requests. As an initial matter it is noted that Jailall has apparently failed to comply with Local Criminal Rule 16.1, which requires that the parties attempt to resolve discovery matters before raising them with the Court. That alone would warrant denial of the motion. In any case, the motion is not meritorious.
Requests 2, 41-50
These requests pertain to the Grand Jury proceedings. As previously explained, Jailall has failed to establish a particularized need for such materials.
Requests 3-8, 11, 20
These requests encompass materials to be produced pursuant to Federal Rule of Criminal Procedure 16(a)(1)(A)-(D). The Government represents without contradiction that it has complied with its Rule 16 obligations. To the extent that these requests encompass material not subject to Rule 16(a)(1)(A)-(D), Jailall has provided no justification as to why he is entitled to additional discovery.
Jailall's requests for Brady and Giglio material are discussed below.
Requests 10, 12-15, 25
These requests pertain to materials based upon certain investigative techniques. The Government represents that those techniques, including photo identifications, items recovered pursuant to a search warrant, and confidential informants, were not used in this case. Therefore, these requests are moot.
Requests 16, 18, 19, 22, 34, 39, and 56
Jailall seeks disclosure of exculpatory evidence or material pursuant to Brady v. Maryland, 373 U.S. 83 (1963). The Government responds that it is aware of its obligations to provide exculpatory material sufficiently in advance of trial to permit the defense to use it effectively.
Courts in this Circuit have repeatedly denied pretrial requests for discovery orders pursuant to Brady where the Government has made a good-faith representation to the Court and defense counsel that it recognizes and will comply with its disclosure obligations under Brady. See, e.g., Perez, 940 F. Supp. at 553; United States v. Schwimmer, 649 F. Supp. 544, 549 (E.D.N.Y. 1986). The Court has been given no reason to believe that the Government will not comply with those obligations.
Jailall also seeks discovery under Giglio v. United States, 405 U.S. 150 (1972), that is, of Brady material of an impeachment nature, prior to trial. In addition, Jailall seeks any statements of potential witnesses, pursuant to the Jencks Act, 18 U.S.C. § 3500, prior to trial.
Brady establishes no general right of pretrial discovery and gives rise to no pretrial remedies. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977); United States v. Evanchik, 413 F.2d 950, 953 (2d Cir. 1969); Perez, 940 F. Supp. at 553. "Neither Brady nor any other case . . . requires that disclosures under Brady must be made before trial." United States ex rel. Lucas v. Regan, 503 F.2d 1, 3 n. 1 (2d Cir. 1974); United States v. Matos-Peralta, 691 F. Supp. 780, 790-91 (S.D.N.Y. 1988).
Due process requires only that a defendant receive such information before it is too late for him to make beneficial use of it at trial. United States v. Olson, 697 F.2d 273, 275 (8th Cir. 1983); United States v. Shoher, 555 F. Supp. 346, 352 (S.D.N.Y. 1983) (accused to receive Brady material in time "to permit effective `evaluation, preparation, and presentation at trial'") (citation omitted). Accordingly, Brady "impeachment" information is properly disclosed when the witness is called to testify at trial. See Kelly, 91 F. Supp.2d at 585 (citations omitted).
Following the usual practice in this District, the Government has agreed to make impeachment information available to the defense at the same time as Jencks Act material, that is, at least one day before the Government witness is called to testify. See Kelly, 91 F. Supp.2d at 585; United States v. Guastella, No. 98 Cr. 1325, 2000 WL 307358, at *7 (S.D.N.Y. March 23, 2000). This practice will allow defense counsel adequate time to prepare for cross-examination of government witnesses as they testify at trial.
The Court accepts the Government's representation that it will provide timely disclosure if any Brady material comes to light. For these reasons, the motion to compel disclosure of Brady material is denied.
Requests 17, 35-37, 55
These requests are intended to elicit the identities of potential Government witnesses. This Circuit has previously declared that in determining whether disclosure of a witness list is appropriate the defendant's specific need for the information "should be balanced against the `possible dangers accompanying disclosure (i.e. subornation of perjury, witness intimidation, and injury to witnesses).'" United States v. Cafaro, 480 F. Supp. 511, 520 (S.D.N.Y. 1979) (quoting United States v. Cannone, 528 F.2d 296, 302 (2d Cir. 1975)). The burden is on the defendant to make "some particularized showing of need" for a list of Government witnesses. United States v. Wilson, 565 F. Supp. 1416, 1438 (S.D.N.Y. 1983) (quoting United States v. Pastor, 419 F. Supp. 1318, 1330 (S.D.N.Y. 1975), aff'd, 557 F.2d 930 (2d Cir. 1977)). Jailall has made no more than "an abstract, conclusory claim that such disclosure [is] necessary," which is simply not sufficient to make the requisite showing. Cannone, 528 F.2d at 301-02.
Requests 23, 24, 26-29
Jailall requests the name of the person to whom the alleged incidents were first reported, whether the arresting officer or other officer received a tip and the source of that information, information on the use of an informant, if any, whether and for how long the defendant was under observation prior to the arrest, the names of any FBI agents who had the defendant under observation, the exact conduct preceding or leading to Jailall's arrest, and the reasons for stopping Jailall and asking him questions. These requests fall outside of the scope of Rule 16. To the extent these requests encompass Giglio or Section 3500 material, the Government has proposed that it will disclose that information as set forth above, which proposal is fair and reasonable.
Request No. 51
Jailall requests information regarding whether defense counsel has also represented potential witnesses for the Government. The Government represents that it is not aware of any such conflict of interest for defense counsel. The Court accepts this representation.
Request No. 53
This request pertains to Rule 404(b) evidence. Elsewhere in his moving papers Jailall also requests disclosure of "any instances of prior uncharged criminal, vicious or immoral acts which the People have knowledge of and intend to use at trial to impeach the credibility of the Defendant."
Rule 404(b) requires that the Government provide "reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial." Fed.R.Evid. 404(b). The Government responds that it will provide 404(b) material two weeks prior to commencement of trial, reserving the right to provide notice during trial in the event new 404(b) material arises and the Court excuses pretrial notice on good cause shown. This proposal is fair and reasonable. See Kelly, 91 F. Supp.2d at 584.
Request No. 54
This request pertains to expert witnesses. The Government maintains that it has not yet determined whether it intends to call any expert witnesses. If it does so, it has indicated that it will comply with its obligations under Rule 16(a)(1)(E) and, in the event that it decides to present expert testimony will prepare the required summaries and disclose them no later than two weeks prior to trial. This proposal is fair and reasonable.
Requests 1, 9, 21, 30-33, 38, and 40
Some of these requests are not pertinent to this case, such as OLBS worksheets, sprint reports, and 911 tapes, which the Government represents are not relevant in a case such as this one which did not involve an on-the-scene police arrest. To the extent that these requests encompass materials to which Jailall is entitled under Rule 16 or other applicable law, e.g. Brady, the Government represents that it has complied with, and will continue to comply with, its obligations under such law. Nothing has been presented to cast doubt on this representation. Therefore, those requests are moot. To the extent that these requests encompass materials to which Jailall is not entitled under Rule 16 or other applicable law, the requests are denied.
IV. Motion For A Bill Of Particulars
Jailall moves pursuant to Federal Rule of Criminal Procedure 7(f) for production of a bill of particulars by the Government. "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 defendant [sic] 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). In order 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 United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990); 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 United States v. Love, 859 F. Supp. 725, 738 (S.D.N.Y. 1994); Henry, 861 F. Supp. at 1197. A bill of particulars is not required where the information sought has been made available in alternative forms. See Kelly, 91 F. Supp.2d at 583-84 (citations omitted). A bill of particulars will not be issued if it would "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)). Nor will a defendant be permitted to use such a request to compel the Government to disclose the manner in which it will prove the charges or preview its evidence or legal theory. See United States v. Perez, 940 F. Supp. 540, 550 (S.D.N.Y. 1996) (citations omitted); United States v. Facciolo, 753 F. Supp. 449, 451 (S.D.N.Y. 1990), aff'd, 968 F.2d 242 (2d Cir. 1992). Finally, the decision to grant or deny a defendant's request for a bill of particulars is within the sound discretion of the trial court. See Perez, 940 F. Supp. at 550 (citations omitted).
Jailall's request for a bill of particulars lacks merit. The Government has provided Jailall with notice of the specific acts of which he is accused: that in or about January 1998 through in or about August 1999, he caused Republic National Bank to issue unauthorized bank account access cards and caused in access of approximately $232,000 to be withdrawn from those accounts, and that from in or about February 1999 through in or about August 1999, he caused unauthorized credit cards to be issued in other individuals' names, and obtained and attempted to obtain in excess of $1,600 through the unauthorized use of such credit cards. This information is set forth in the indictment. The charges are also set forth in fuller detail in the Complaint, which the Government represents has been provided to Jailall. Finally, the Government maintains that in the discovery materials it provided to the defense are charts demonstrating each instance in which money was withdrawn from an ATM machine with an unauthorized ATM card, including the dates, times, and locations of such withdrawals, and bank statements detailing which the bank accounts affected. Therefore, the requirements of Fed.R.Crim.P. 7(f) have been satisfied.
It is also noted that Jailall requests particulars as if he has been charged with a conspiracy, which he has not.
V. Motion To Suppress Post-Arrest Statements
Jailall has moved to suppress any post-arrest statements, or for a suppression hearing regarding these statements, on the ground that they were obtained without Miranda warnings, in violation of Miranda v. Arizona, 384 U.S. 435 (1966). He also asserts that his statements were involuntary.
A defendant is not automatically entitled to a suppression hearing. The defendant must show that disputed issues of material fact exist that require an evidentiary hearing. See, e.g., United States v. Belin, No. 99 Cr. 214, 2000 WL 679138, at *5 (S.D.N.Y. May 24, 2000) (denying motion to suppress evidence or for suppression hearing where defendant failed to submit affidavit containing factual allegations); United States v. Restrepo, No. 95 Cr. 225, 1995 WL 494012, at *1 (S.D.N.Y. Aug. 17, 1995) (same). The required showing must be made by an affidavit of someone with personal knowledge of the underlying facts. See, e.g., Belin, 2000 WL 679138, at *5; United States v. Rivera, No. 89 Civ. 346, 1990 WL 52198, at *6 (S.D.N Y April 19, 1990); see also United States v. Gillette, 383 F.2d 843, 848 (2d Cir. 1967) (attorney affidavit absent personal knowledge insufficient to justify suppression hearing). "A hearing is not required if the defendant's statements are general, conclusory or based on conjecture." United States v. Viscioso, 711 F. Supp. 740, 745 (S.D.N.Y. 1989).
Jailall's contention is not supported by an affidavit based on personal knowledge. Instead, only the unsworn statement of his attorney is offered. Therefore, there is no basis for granting his suppression motion and no disputed issue of fact necessitating a hearing. In addition, the allegations made by his attorney are general and conclusory in nature.
Jailall also contends that he was arrested without probable cause and, therefore, that his statements must be suppressed as fruit of the initial illegal arrest pursuant to Wong Sun v. United States, 371 U.S. 471 (1963), Brown v. Illinois, 420 U.S. 590 (1975), and Dunaway v. New York, 442 U.S. 200 (1979). Jailall offers no basis for this conclusory assertion. Therefore, this alternative basis for his motion to suppress is rejected.
Conclusion
For the reasons set forth above, Jailall's omnibus motion is denied in its entirety.
It is so ordered.