Opinion
03 Cr. 289 (DAB)
March 30, 2004
MEMORANDUM ORDER
Before the Court is Defendant Muhammad Khalil's ("Khalil" or "Defendant") Pretrial Motions, seeking: (1) a Bill of Particulars; (2) early disclosure of Brady and Giglio material; and (3) a motion in limine precluding use by the Government of certain statements by allegedly made by Defendant.
In his Notice of Motion, Defendant Khalil also sought to join any other Defendant's motions for relief; however, no other motions were filed.
On February 6, 2003, pursuant to a warrant, Khalil and other individuals were arrested on a two-count Complaint (03 Mag. 0025), which charged Khalil with participating in a conspiracy to commit visa fraud and to submit false information to the Social Security Administration to obtain fraudulent Social Security cards. (Compl. at 1-3.) On March 10, 2003, Khalil and his co-defendants were indicted on a five-count Indictment. Counts Two and Five charged Khalil with Visa Fraud and Furnishing False Information to the Commissioner of Social Security. (Ind. at ¶¶ 5, 10.)
The charges contained in Counts One, Three and Four of the original Indictment were Conspiracy to Commit Visa Fraud, False Statement to a Federal Agent, and Conspiracy to Furnish Information to the Commissioner of Social Security respectively. (Ind. at ¶¶ 1-4, 6, 7-9.)
Defendant filed these pre-trial Motions, and the
Government replied. After reviewing the papers, the Court issued an Order on January 16, 2004, in which it requested additional information regarding Defendant's in limine motion. Defendant promptly responded to the Order. Finally, additional submissions from the Government and Defendant were received by the Court, resulting from a February 4, 2004 telephone conference between the Court and the parties.
In its latest submission to the Court, the Government indicated that it would supercede the original Indictment to correct some of the issues that had arisen in response to this Motion. The Superceding Indictment was obtained on March 3, 2004 and contained eight counts. The substantive visa fraud charge was split into four separate charges for four false visa applications. The remaining charges are the same as in the Original Indictment. Also, in the letter accompanying the Superceding Indictment, the Government explicitly apprised Defendant of the names of each of the Applicants whose visa applications allegedly contain false information, supplied in part by Defendant.
The only substantive change that the Court sees in comparing the two Indictments is that the time period for Count One of the Superceding Indictment, the Conspiracy to Commit Visa Fraud, now encompasses 1997 to January 2003 whereas the time period in the original Indictment went from 2000 to January 2003.
DISCUSSION
I. Bill of Particulars
Pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure, Khalil moves for a bill of particulars. "Rule 7(f) permits a 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 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. . . . Generally, if the information sought by defendant is provided in the indictment or in some acceptable alternate form, no bill of particulars is required." United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987); see also United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988) (stating same standard and noting that "[t]he principles governing requests for a bill of particulars are well settled").
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) (quoting United States v. Feola, 651 F. Supp. 1068, 1132 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (2d Cir. 1989)); see also United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999) (citing Torres). "Acquisition of evidentiary detail is not the function of a bill of particulars."Torres, 901 F.2d at 234.
In deciding a motion for a bill of particulars, "[t]he important question is whether the information sought is necessary, not whether it is helpful." United States v. Facciolo, 753 F. Supp. 449, 451 (S.D.N.Y. 1990). Finally, the granting of "a bill of particulars rests within the sound discretion of the district court." United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984).
Defendant argues that "acquisition of official documents based upon false information, the defense must be apprised of the specific documents involved and the information alleged to be false." Def. Memo, of Law at 3. Khalil analogizes the instant case to perjury, where courts have required the government to specify the actual statements deemed to be false. In short, "what the information is, and which documents contain it." Id. (emphasis in original).
The Government contends that no Bill of Particulars should issue here because the Indictment sufficiently apprises Defendant of the necessary information that he needs to defend himself. Additionally, the Government pointed to the Complaint already filed in the case as well as the discovery produced, half of which were Defendant's own files.
For the Court, the Superceding Indictment has cured the issue of the Bill of Particulars, by referencing four specific applicants and sets of documents the Government alleges as false. The Court believes that no further information is necessary for Khalil to mount his defense. Moreover, any concerns about double jeopardy have been dispelled because the Superceding Indictment sufficiently apprises Defendant of the offenses with which he is charged and would bar the Government from retrying him for these same offenses.
However, the Court does note that double jeopardy would not protect Defendant from subsequent prosecutions of other false visa applications or false statements. The Second Circuit in United States v. McGowan, 58 F.3d 8 (2d Cir. 1995), held that the "attachment of jeopardy does not bar subsequent trial of a substantive offense that was an objective of the conspicracy." Id. at 13 (rejecting defendant's double jeopardy argument that the Fifth Amendment barred his prosecution for substantive acts that had been part of the conspiratorial objectives in a previous trial during which defendant was acquitted of conspiracy).
What troubles the Court, however, is that the Government's desired course of action here deprives Defendant of the protections of the higher common law standard of reasonable doubt. The Government has indicated to the Court that it would, assuming conviction, introduce at a post-conviction hearing evidence of false documents not presented during trial to seek the appropriate sentencing enhancement based on § 2L2.1(b)(2) of the Sentencing Guidelines ("Section 2L2"). Section 2L2 provides for a three-tiered enhancement depending on the number of false documents involved in the offense. U.S.S.G. § 2L2.1(b)(2) (providing a 3 point increase in offense level if 6-24 documents are involved, 6 points for 25-99 documents, and 9 points for 100 or more documents). The Government could essentially hold the bulk of evidence, already known to it, in abeyance to be determined at a Factico hearing, where the standard of proof is decidedly diminished from a jury trial's reasonable doubt to aFatico's preponderance of the evidence. United States v. Leung, 2004 WL 369874 at *3 (2d Cir. 2004) ("The factors underlying a sentence [enhancement at a Fatico hearing] need only be proved by a preponderance of the evidence. . . .").
There does not appear to be any reason for the Government to proceed in this manner since it already knows now all that it would present to the Court at a Fatico hearing. Thus, Defendant could very likely face a mandated lengthier prison term under the Guidelines without a jury ever scrutinizing the evidence used to increase his sentence. As Justice Thomas, joined by three colleagues, noted in a recent dissent:
It is true that Apprendi concerned a fact that increased the penalty for a crime beyond the prescribed statutory maximum, but the principles upon which it relied apply with equal force to those facts that expose the defendant to a higher mandatory minimum. When a fact exposes a defendant to greater punishment than what is otherwise legally prescribed, that fact is "by definition [an] `element' of a separate legal offense." . . . Whether one raises the floor or raises the ceiling it is impossible to dispute that the defendant is exposed to greater punishment than is otherwise prescribed.Harris v. United States, 536 U.S. 545, 577 (2002)(Thomas, J., dissenting) (citation omitted).
It is imperative, he later added, "that the Court maintain absolute fidelity to the protections of the individual afforded by the notice, trial by jury, and beyond-a-reasonable-doubt requirements." Id. at 581-82.
This Court shares Justice Thomas' concern. Indeed, the Court is predisposed to forbid presentation of any additional allegedly false documents at a Fatico hearing that "could have, should have" been presented to the jury at trial.
II. Brady and Giglio Material
It is well-established that "[t]he prosecution has a constitutional duty to disclose evidence favorable to an accused when such evidence is material to guilt or punishment." United States v. Coppa, 267 F.3d 132, 135 (2d Cir. 2001) (citing Brady v. Maryland, 373 U.S. 83, 87 (1972)). Such evidence "includes not only evidence that is exculpatory, i.e., going to the heart of the defendant's guilt or innocence, but also evidence that is useful for impeachment, i.e., having the potential to alter the jury's assessment of the credibility of a significant prosecution witness." United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998) (citing Giglio v. United States, 405 U.S. 150, 154-55 (1972) andNapue v. Illinois, 360 U.S. 264, 269 (1959)). Courts often refer to exculpatory and impeachment evidence as Brady and Giglio material respectively.
The prosecution need not provide Brady and Giglio materials immediately; instead, "as long as a defendant possess 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 provide the evidence sooner." Coppa, 267 F.3d at 144. There are nevertheless some instances "where disclosure of exculpatory evidence for the first time at trial would be too late to enable the defendant to use it effectively in his own defense. . . ." Leka v. Portuondo, 257 F.3d 89, 101 (2d Cir. 2001) (quoting United States v. Cobb, 271 F. Supp. 159, 163 (S.D.N.Y. 1967)).
Defendant seeks disclosure of Government's Brady and Giglio material one month in advance of trial because disclosure on the eve of trial effectively forecloses "all potential investigative avenues" for Defendant. Def.'s Motion at 6. Khalil suggests that this early disclosure is the only way he can effectively mount a defense.
The Government responds that, as to Brady, it has "followed, and will continue to follow, its customary practice of producing any information favorable to the defense upon its discovery by the Government." Gov't Letter, Dec. 15, 2003 at 10. "As for Giglio material, consistent with its longstanding practice, the Government will provide such material . . . no later than the Friday before the testimony of any witness." Id. The Government ends by conceding that where such Giglio materials prove voluminous concerning a particular witness, the Government will furnish Defendant with such materials even earlier than its established "Friday before" practice. Id. at 11.
The Court finds the one-month disclosure requirement unnecessary and not mandated by case law nor the specific facts of this case. However, given the number of visas potentially at issue and the voluminous evidence already produced to Defendant in this case, the Court orders that the Government shall provide Defendant with Giglio material five business days before the testimony of any witness.
III. Motion in Limine
Rule 403 of the Federal Rules of Evidence reads in pertinent part: "Although relevant, evidence maybe be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . ." In the "context of Rule 403, unfair prejudice `means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'" United States v. Brady, 26 F.3d 282, 287 (2d Cir. 1994) (citing Fed.R.Evid. 403, Advisory Comm. Notes). A trial court has substantial discretion in making a determination under Rule 403. United States v. Thai, 29 F.3d 785, 813 (2d Cir. 1994) (citations omitted).
Defendant moves to preclude the Government from utilizing at trial any of Defendant's statements relating to Osama Bin Laden. Khalil claims that the statements could not possibly be relevant and are per se unfairly prejudicial given the current situation in America.
The Government argues that it does not intend at this time to introduce this evidence in its case-in-chief against Defendant and that such a motion is more properly reserved "after such time as the Government has pared down its evidence in anticipation of trial." Gov't Letter of Dec. 15, 2003. Moreover, the Government expressly reserves the right to introduce such evidence in event that evidence, testimony, or arguments made at trial open the door for the statements' introduction during cross-examination.
Because of the nature of the crimes charged in the Indictment, particularly the religious visa fraud charge, and because of the large number of people allegedly brought into this country fraudulently, it is not clear to the Court at this time that the statements may not prove to be relevant. Accordingly, a blanket exclusion is denied at this time. SO ORDERED.