Opinion
04 Cr. 1224 (RWS).
August 8, 2007
MEMORANDUM OPINION AND ORDER
Defendant Thomas Ware (the "Defendant" or "Ware") has filed a motion seeking the following: (1) Dismissal of the indictment for lack of proper venue in the Southern District of New York; (2) Production of exculpatory material; (3) Notice of other act evidence the Government intends to introduce at trial under Fed.R.Evid. 404(b); (4) A bill of particulars; (5) Disclosure of ex parte communications between Judge Leonard B. Sand and the plaintiffs in the civil contract action underlying the pending criminal contempt charges, Alpha Capital, et al. v. Group Management, at al., No. 02 Civ. 2219 (LBS) (the "Civil Action"); (6) Disclosure of the name and contact information of the Government official who certified certain affidavits in the Civil Action; (7) Disclosure of the criminal history and plea agreement of "Edward M. Grushko"; (8) Disclosure of the indictments of "Thomas Badian" and "Andres Badian"; and (9) Disclosure of the identity of the Assistant United States Attorney who presented the Indictment to the Grand Jury. For the reasons stated below, the motion will be granted in part and denied in part.
Venue is Proper
When a defendant is charged with criminal contempt for violating a court order, "[t]he district in which the court order was issued is . . . said to have sufficient contact with the criminal contempt to be the site of prosecution." United States v. Reed, 773 F.2d 477, 481-82 (2d Cir. 1985). All charges in the indictment allege that Ware violated court orders entered in this district by Judge Sand in the Civil Action. Accordingly, venue is proper.
The Government Shall Produce All Brady Material Prior to Trial
The Government Shall Provide Notice of Other Act Evidence
Brady v. Maryland373 U.S. 83 404in limine in limine in limine
Defendant is Not Entitled to a Bill of Particulars
Ware seeks a bill of particulars from the Government apparently requesting: (1) the specific acts upon which venue is based in the Southern District of New York; (2) how he violated the Civil Action court orders at the heart of the case; (3) the identity of the attorney who mailed Judge Sand's November 25, 2000 order to him and how he acknowledged receipt of said order; and (4) a list of all exhibits to be introduced at trial by the Government.
The purpose of a bill of particulars in a criminal case is to permit the defendant "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." United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987).
In the instant case, the Indictment provides all the information necessary by specifically identifying each court order with which Ware failed to comply and what act or omission violated the orders. To wit, the Indictment alleges that each order required Ware to honor the conversion notes issued to the plaintiffs in the Civil Action, which Ware and his corporation were contractually obligated to do. See Indictment at 4-6. For each of the three orders discussed in the Indictment, it is alleged that the notes were not honored (or, in one case, the notes were honored after the court-imposed deadline). See id. at 5-8. Furthermore, the Government has advised the Court that it has already produced to Ware copies of all the relevant orders and other documents from the Civil Action (to which Ware was a party). "The Government should not be compelled to disclose additional details of its case if the defendant has received adequate notice of the charges against him and can prepare fully for trial through the exercise of reasonable diligence." United States v. Martinez-Martinez, 2001 WL 1287040, at *6 (S.D.N.Y. Oct. 24, 2001). Such is the case here.
Furthermore, the Government is not required to identify any of its witness absent "a specific showing that the disclosure [is] both material to the preparation of [defendant's] defense and reasonable in light of the circumstances surrounding his case."United States v. Cannone, 528 F.2d 296, 301 (2d Cir. 1975). Here, Defendant has not even attempted to make such a showing.
Finally, a criminal defendant is not entitled to a list of the Government's trial exhibits at this stage. See United States v. Nachamie, 91 F. Supp. 2d 565, 568 (S.D.N.Y. 2000).
Accordingly, Defendant's motion for a bill of particulars will be denied.
The Government Shall Produce Any Exculpatory Ex Parte Communications Between Judge Sand and the Plaintiffs in the Civil Action in its Possession
The Government is not Obligated to Disclose the Name and Contact Information of the Official who Certified Certain Affidavits in the Civil Action
See Cannone528 F.2d at 301
The Government Is Not Required to Disclose Information about Unrelated Criminal Defendants
The Government Is Not Required to Disclose the Identity of the Attorney Who Presented the Indictment to the Grand Jury
6
Conclusion
For the reasons stated above, Defendant's motion will be granted to the following extent: the Government shall produce all exculpatory and impeachment evidence prior to trial and all Rule 404(b) evidence no later than the deadline for filing in limine motions. Defendant's motion is denied in all other respects.
It is so ordered.