United States v. Lovecchio

• Decision Date: 29 March 1983
• Docket Number: Crim. No. 82-0151.
• Citation: 561 F. Supp. 221
• Parties: UNITED STATES of America v. Samuel LOVECCHIO.
• Court: U.S. District Court — Middle District of Pennsylvania

561 F. Supp. 221

UNITED STATES of America v. Samuel LOVECCHIO.

Crim. No. 82-0151.

United States District Court, M.D. Pennsylvania.

March 29, 1983.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Eric Holder, Jr., and Richard Green, U.S. Dept. of Justice, Washington, D.C., for plaintiff.

Philip T. Medico, Jr., West Pittston, Pa., Anthony B. Panaway, Anthony J. Lupas, Wilkes Barre, Pa., for defendant.

MEMORANDUM

CALDWELL, District Judge.

I. Introduction

Before us for disposition are the following motions filed on behalf of defendant: motion for a bill of particulars, motion for discovery and inspection, motion to inspect grand jury minutes, motion to dismiss indictment for prosecutorial misconduct, and motion to dismiss indictment (for other reasons). The government has filed timely opposing briefs and upon examination of the positions of the parties and the applicable law, we have concluded that these motions must be denied.

II. Background

In an indictment filed on October 19, 1982, a grand jury charged defendant with two counts of perjury in violation of 18 U.S.C. § 1623, which provides in relevant part that an individual who, while under oath in a proceeding before a grand jury, "knowingly makes any false material declaration ... shall be fined not more than $10,000 or imprisoned not more than five years, or both." Specifically, defendant is charged with giving false testimony on two areas of inquiry when he appeared before a grand jury that was investigating alleged jury tampering in a federal criminal trial.

III. The Bill of Particulars Motion

On November 29, 1982, defendant filed a motion for a bill of particulars pursuant to Federal Rule of Criminal Procedure 7(f). Rule 7(f) provides that "the court may direct the filing of a bill of particulars." Language from United States v. Addonizio, 451 F.2d 49 (3d Cir.), cert. denied, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812, reh. denied, 405 U.S. 1048, 92 S.Ct. 1309, 31 L.Ed.2d 591 (1972), a case referred to in the briefs of both parties, has provided useful insight into proper disposition of the present matter. In Addonizio the United States Court of Appeals for the Third Circuit upheld the propriety of the district court's denial of a bill of particulars motion and stated,

The 1966 amendment to Rule 7(f), Fed. R.Crim.P., eliminating the requirement that cause be shown before a bill of particulars may be ordered, is "designed to encourage a more liberal attitude by the courts towards bills of particulars without taking away the discretion which courts must have in dealing with such motions in individual cases." Notes of Advisory Committee on Rules, 18 U.S.C. Rule 7(f). The net result of the change seems to have been to increase the instances in which particulars are granted, thus contributing to a desirable decline in the "sporting theory" of criminal justice footnote omitted. United States v. Jaskiewicz, 278 F.Supp. 525 (E.D.Pa. 1968). This liberalization has, out of practical necessity, been limited in some important respects, however. It is still firmly established, for example, that a defendant is entitled neither to a wholesale discovery of the Government's evidence, United States v. Birrell, 263 F.Supp. 113, (S.D.N.Y.1967), nor to a list of the Government's prospective witnesses, United States v. Jaskiewicz, supra; United States v. Palmisano, 273 F.Supp. 750 (E.D.Pa.1967) footnote omitted. In the final analysis then, the granting of a bill of particulars remains a discretionary matter with the trial court, and it is still "obviously a matter of degree how far an accused must be advised in advance of the details of the evidence that will be produced against him, and no definite rules are possible." United States v. Russo, 260 F.2d 849, 850 (2nd Cir.1958). The denial of a motion for a bill of particulars does not amount to an abuse of discretion unless the deprivation of the information sought leads to the defendant's inability to adequately prepare his case, to avoid surprise at trial, or to avoid the later risk of double jeopardy.

451 F.2d at 64 (emphasis supplied). More recently, the court in United States v. Oxford Royal Mushroom Products, 487 F.Supp. 852 (E.D.Pa.1980) reiterated these principles, again disapproving the use of a bill of particulars as a "vehicle for discovery." Id. at 857.

In accordance with the foregoing, we have scrutinized the indictment in the present matter and have found no reason to grant defendant's motion. The indictment specifies that the perjured testimony before the grand jury occurred on or about June 18, 1982. Moreover, the questions asked and defendant's allegedly false responses thereto are quoted and the latter are underscored. See n. 5 infra. Defendant has, therefore, been fully apprised of the charges against him.

Furthermore, the government's brief indicates that defendant has been given access to a tape or tapes that contradict his grand jury testimony. Defendant should be able to prepare a defense to the perjury charges against him and we cannot perceive a possibility of surprise at trial or a future risk of double jeopardy arising from the current charges. The motion for a bill of particulars, therefore, is denied.

IV. The Discovery and Inspection Motion

Defendant's motion for discovery and inspection contains thirty-four (34) numbered paragraphs requesting various information from the government. Our task in considering the motion has been simplified by the government's reference to materials which either have already been provided or will be provided without opposition.

Defendant's first request is simply an echo of the materials requested in the bill of particulars motion, which we have denied in its entirety. We are troubled that defendant has made this request in an effort to cover himself "if this Court should determine that said information should more appropriately be disclosed pursuant to a `Motion for Discovery and Inspection.'" As the government correctly points out, bill of particulars motions and discovery motions generally seek different information and it is counsel's responsibility, rather than the court's, to properly categorize request(s). We will deny the request which incorporates the bill of particulars motion.

Turning now to the specified information sought in the other thirty-three paragraphs of the current motion, we note that the government indicates that it has already complied with the following five requests of the defendant: Numbers 4 (written or recorded statement(s) by defendant), 6 (recorded testimony of defendant before grand jury or any court), 8 (results or reports of physical or mental examinations or evaluations of defendant, including polygraph or other truth detecting tests), 15 (time, date, and place of any search or surveillance of defendant or any co-defendant or co-conspirator plus documents, logs, etc. generated in connection therewith), and 28 (any films, recordings, etc. of events specified in the indictment or any overt act not included in the indictment).

With regard to paragraph 9, which addresses written, recorded, and oral statements of defendant, as well as names and addresses of persons who were present during the statement(s) and/or who will testify at trial concerning the statement(s) the government contends that it has met its obligation under Federal Rule of Criminal Procedure 16(a)(1)(A). In answering the request for oral statements the government points out the limitation in the Rule that these be made by the defendant "in response to interrogation by any person then known to the defendant to be a government agent." (emphasis supplied) The plain language of the Rule speaks for itself and courts have so construed it. See, e.g., United States v. Navar, 611 F.2d 1156 (5th Cir. 1980), wherein the court rejected defendant's post conviction argument that the government should have disclosed the oral statements she made to a drug agent before she was aware of his government affiliation. Accordingly, defendant in the present matter is restricted to the disclosures that comply with Rule 16(a)(1)(A).

Another category of requests encompasses matters on which the government indicates that it does not have any material or information. With regard to these eighteen requests, the government has expressed its willingness to disclose or its awareness of its obligation to disclose appropriate material should the government become aware of its existence. Since the government will provide defendant with the information sought, we find no need to give a detailed listing but rather will simply list the paragraph numbers of these requests, which are as follows: 5, 7, 10, 11, 13, 14, 16-19, 22, 23, 25, 27, and 31-34.

Several other requests may also be categorized as ones with which the government will cooperate. With regard to request 3, for example, the government has agreed to submit to the court for in camera inspection any material on which the government has questions regarding its exculpatory nature. Request 20 has been answered in the government's brief; the government has indicated that none of the witnesses it intends to call at trial has been granted immunity. Request 21, which seeks information on plea bargains or other benefits, including the Witness Protection Program (WPP) will be answered. The government has stated that one witness is in the WPP and that further information will be provided prior to trial.

A few requests will be denied for various reasons. For example, request 2 seeks rough notes, transcripts, and tapes, as well as stenographic notes of statements of defendant or "any other person." As the government's response points out, at least part of this request is governed by the Jencks Act, 18 U.S.C. § 3500, which provides basically that statements of government witnesses made to government agents need not be provided to defendant until such witness has testified on direct examination at trial. Moreover, a review of...