United States v. Mannino

• Decision Date: 21 November 1979
• Docket Number: No. 79 Cr. 744 (RWS).,79 Cr. 744 (RWS).
• Citation: 480 F. Supp. 1182
• Parties: UNITED STATES of America, Plaintiff, v. Paul MANNINO, Michael Ardizzone, Robert Frank Romeo, and Joseph Cordano, Defendants.
• Court: U.S. District Court — Southern District of New York

480 F. Supp. 1182

UNITED STATES of America, Plaintiff, v. Paul MANNINO, Michael Ardizzone, Robert Frank Romeo, and Joseph Cordano, Defendants.

No. 79 Cr. 744 (RWS).

United States District Court, S. D. New York.

November 21, 1979.

COPYRIGHT MATERIAL OMITTED

Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., New York City by Walter S. Mack, Jr., Asst. U. S. Atty., New York City, for plaintiff.

Gerald L. Shargel, New York City, for defendant Mannino.

Dawson, Kimelman & Clayman, New York City, for defendant Ardizzone by Steven Kimelman, New York City, of counsel.

Fred C. Stella, Brooklyn, N. Y., for defendant Romeo.

Peter M. Antioco, Brooklyn, N. Y., for defendant Cordano.

OPINION AND ORDER

SWEET, District Judge.

The Government has charged defendants Paul Mannino, Michael Ardizzone, Robert Frank Romeo and Joseph Cordano with conspiracy to distribute controlled substances and distribution of controlled substances. In addition, the indictment charges defendants Mannino, Ardizzone and Cordano with certain firearms offenses. This is a decision and order on defendants' motions for a bill of particulars and for discovery, and on the Government's motions for a protective order deferring discovery and for a continuance of trial.

Bill of Particulars

Defendants Mannino, Ardizzone and Cordano have moved for a bill of particulars pursuant to Rule 7, Fed.R.Crim.P. A bill of particulars is designed first to assure that a defendant is sufficiently apprised of the charges against him to allow him to prepare a defense and, second, to enable the defendant to assert a defense of double jeopardy if subsequent charges are filed against him based on the same actions. Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545 (1929); United States v. Lebron, 222 F.2d 531 (2d Cir.), cert. denied, 350 U.S. 876, 76 S.Ct. 121, 100 L.Ed. 774 (1955); United States v. Mavrogiorgis, 49 F.R.D. 214 (S.D.N.Y.1969).

A bill of particulars should not be used to conduct discovery of the Government's theory of a case, to force detailed disclosure of acts underlying a charge, or to restrict the Government's proof at trial. United States v. Salazar, 485 F.2d 1272, 1273 (2d Cir. 1973), cert. denied, 415 U.S. 985, 94 S.Ct. 1579, 39 L.Ed.2d 882 (1974); United States v. Leonelli, 428 F.Supp. 880 (S.D.N.Y.1977); United States v. McCarthy, 292 F.Supp. 937 (S.D.N.Y.1968). A decision to grant or deny a request for particulars rests in the sound discretion of the trial court. United States v. Tramunti, 513 F.2d 1087, 1113-14 (2d Cir.), cert. denied, 423 U.S. 332, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975).

Based on these general principles, the following disposition is appropriate:

Count I. Request (a), for the names of all co-conspirators, is granted to the extent these persons are known to the Government only. United States v. Chovanec, 467 F.Supp. 41, 46 (S.D.N.Y.1979); United States v. King, 49 F.R.D. 51, 53 (S.D.N.Y. 1970). Request (b), calling for the name of the undercover agent named in Overt Act One, and Request (c), for the names of other persons present during Overt Act Four, are denied. These requests essentially call for the names of Government witnesses. United States v. Chovanec, supra at 46; United States v. Dioguardi, 332 F.Supp. 7, 19 (S.D.N.Y.1971). See also United States v. Roya, 574 F.2d 386, 392 (7th Cir. 1978).

Counts II, III and IV. The request for the locations of the acts set forth in these counts is granted only to the extent that such acts were performed by principals. United States v. Honneus, 508 F.2d 566, 570 (1st Cir. 1974). The Government need not specify which defendants are charged as principals and which are charged as aiders and abettors, since this would reveal the Government's theory underlying those counts of the indictment. United States v. Leonelli, 428 F.Supp. 880, 882 (S.D.N.Y. 1977). Similarly, the Government need not disclose all acts committed by claimed aiders and abettors, by analogy to the rule shielding the Government from disclosure of all overt acts involved in a conspiracy. United States v. Lam Lek Chong, 544 F.2d 58, 63 (2d Cir. 1976), cert. denied, 429 U.S. 1101, 97 S.Ct. 1124, 51 L.Ed.2d 550 (1977); United States v. Cohen, 518 F.2d 727 (2d Cir.), cert. denied, 423 U.S. 926, 96 S.Ct. 270, 46 L.Ed.2d 252 (1975). Moreover, the disclosure of the locations of actions taken by alleged aiders and abettors is not relevant to the venue of this action, since aiders and abettors can be tried in the district where the principal committed the crime. United States v. Chestnut, 399 F.Supp. 1292, 1297 (S.D.N.Y.1975), aff'd, 533 F.2d 40 (2d Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976); United States v. Sweig, 316 F.Supp. 1148 (S.D.N.Y.1970).

Count V. The request for the location of the act charged in Count Five is granted.

Count VI. Request (a) is granted only to the extent it concerns the place where the principal offense charged occurred. Request (b), calling for the actions actually taken by the respective defendants, and request (c), calling for disclosure of the manner in which the offense was carried out, are denied. These requests probe too deeply into the Government's theory and method of proof. United States v. Gottlieb, 493 F.2d 987, 994 (2d Cir. 1974); United States v. Andrews, 381 F.2d 377 (2d Cir. 1967), cert. denied, 390 U.S. 960, 88 S.Ct. 1058, 19 L.Ed.2d 1156 (1968). Moreover, disclosure of these facts is not necessary to inform defendants Ardizzone and Mannino of the nature of the charges against them.

Count VII. Request (a) is granted and request (b) is denied for the reasons set forth in discussing the requests concerning Count Six.

Count VIII. The request for the location of actions taken by principals only, in carrying out the alleged offense, is granted.

Discovery Motions and Motion for a Continuance

Defendants Mannino, Ardizzone and Cordano have made extensive discovery requests, to which the Government has consented only in part. With one exception, the Government states that it is willing to supply all material required by Rule 16, Fed.R.Crim.P., 18 U.S.C. § 3500 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Counsel for the defendants concede that their requests go beyond the bounds of disclosure required by statute or by the Constitution. In the absence of a showing of specific need, defense counsel have not currently moved to compel disclosure of requested materials beyond what the Government has already granted. Accordingly, except for Request 12, discussed below, the court makes no ruling on these requests.

Defendants Ardizzone and Cordano have moved, pursuant to Rule 16(a)(1)(A), Fed.R.Crim.P., for disclosure of the items specified in Mannino's Request 12.¹ This request calls for discovery of all recorded conversations of these defendants, other defendants, or co-conspirators, whether or not authorized or lawful. It also demands any documents, logs or transcripts relating to such conversations, including the facts and circumstances surrounding the obtaining of authorization to record any such conversations. The Government has represented that to date no non-consensual conversations have been recorded of any of the defendants and that it will make available copies and transcripts of any consensual conversations of each of the defendants in accordance with Rule 16. However, the Government opposes the defendants' motion insofar as it requests conversations of individuals other than the defendants, documentary material other than the conversations themselves, and conversations of defendants regardless of whether they are relevant to the instant indictment.

Rule 16(a)(1)(A) states in relevant part:

Upon request of a defendant the government shall permit the defendant to inspect and copy or photograph: any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government ...

This rule has been broadly interpreted in this Circuit to mandate disclosure of statements by defendants even though non-consensual and even though made prior to arrest. See United States v. Crisona, 416 F.2d 107, 114-15 (2d Cir. 1969), cert. denied, 397 U.S. 961, 90 S.Ct. 991, 25 L.Ed.2d 253 (1970). However, there is no basis in Rule 16 or in the reported decisions for disclosure of statements other than those made by the defendant or of documentary materials concerning the circumstances of any non-consensual recording. United States v. Percevault, 490 F.2d 126, 129-132 (2d Cir. 1974). Accordingly, the defendants' motion is denied insofar as it relates to materials other than the conversations of the defendants themselves.

However, Rule 16 does require disclosure of any statements of the defendants, recorded or written, which become known to the attorney for the Government and which are relevant to the charges made in this indictment. United States v. Crisona, supra. See also United States v. Johnson, 525 F.2d 999 (2d Cir. 1975), cert. denied sub nom. Johnson v. United States, 424 U.S. 920, 96 S.Ct. 1127, 47 L.Ed.2d 327 (1976). This obligation applies to statements obtained in the course of a continuing investigation as well as to statements currently in the Government's possession. The defendants' motion is granted to this extent only.

The only remaining discovery motion before the court relates to the timing of disclosure of certain materials. In particular, the defendants have moved, under Rule 16(a)(1)(C), Fed.R.Crim.P., for immediate discovery of a telephone number listing device, monthly date notebooks for 1975, 1976 and 1977 and certain miscellaneous papers, all of which were seized from defendant Mannino. The Government has moved, pursuant to Rule 16(d)(1), Fed.R. Crim.P., for a protective order to defer disclosure of these materials. The...