United States v. Padovani
Decision Date | 28 September 2016 |
Docket Number | 14-CR-00224-WMS-JJM |
Parties | UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM PADOVANI, Defendant. |
Court | U.S. District Court — Western District of New York |
Defendant is charged in a three-count Second Superseding Indictment [50]1 with, inter alia, a narcotics conspiracy, in violation of 21 U.S.C. §846. Id., Count 1. This case has been referred to me by District Judge William M. Skretny for supervision of pretrial proceedings [8]. Before me is defendant's second omnibus motion [54], and the government's cross-motion for reciprocal discovery. Government's Response [55], pp. 14-15. Oral argument was held on September 26, 2016 [60]. For the following reasons, defendant's motion is denied and the government's cross-motion is granted.
Defendant was previously charged in a Superseding Indictment [20] with a narcotics conspiracy, which allegedly began "on a date unknown" and continued to his arrest on or about November 5, 2014. Id., Count 1. Defendant moved to dismiss that count or, in the alternative, for disclosure of the grand jury minutes [36]. By Report, Recommendation and Order dated April 26, 2016 [43], I recommended that Count 1 of the Superseding Indictment be dismissed for failing to allege the dates when the alleged conspiracy was operative. Id., pp. 2-3.
In lieu of filing objections to my recommendation, the government returned a Second Superseding Indictment [50], alleging that the conspiracy began "in or before September 2014 . . . to on or about November 5, 2014". Id., Count 1. Although defendant acknowledges that the deficiency that resulted in the dismissal of Count 1 of the Superseding Indictment "still exists with the Second Superseding Indictment", he does not move for that relief. Instead, defendant moves in his Second Omnibus Motion [54] for disclosure of the grand jury minutes, a bill of particulars, Fed. R. Crim. P. ("Rule") 16 discovery, Brady/Giglio2 material, and Jencks Act (18 U.S.C. §3500) material. Passafiume Affirmation [54], Schedules I-V.
"The burden is on the party seeking disclosure [of grand jury materials] to show a particularized need that outweighs the need for secrecy." In re Grand Jury Subpoena, 103 F.3d 234, 239 (2d Cir. 1996). Relying on the fact that no discovery has been produced by the government "that contains or references any act that occurred 'in or before September 2014'", defendant seeks production of the grand jury minutes for the Second Superseding Indictment. Passafiume Affirmation [54], Schedule I.
At the September 26, 2016 oral argument, the government agreed that it would not seek to prove at trial defendant's participation in the alleged conspiracy prior to September 2014, and that it would disclose to defendant the grand jury testimony supporting the SecondSuperseding Indictment's allegation that he participated in the conspiracy from September 2014 to the time of his arrest on November 5, 2014.3 Based upon the government's representations, this portion of defendant's motion is denied.
Defendant seeks the following particularization of the conspiracy count of the Second Superseding Indictment:
Fed. R. Crim.P. ("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". United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). "A bill of particulars is required only where thecharges 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. Walsh, 194 F.3d 37, 47 (2d. Cir. 1999). "[T]he burden is upon defendants to show that non-disclosure of the requested particulars would lead to prejudicial surprise at trial or would adversely affect defendants' rights". United States v. Duarte, 2014 WL 29366, *1 (W.D.N.Y. 2014) (Scott, M.J.).
"In deciding a motion for a bill of particulars, the important question is whether the information sought is necessary, not whether it is helpful." United States v. Conley, 2002 WL 252766, *4 (S.D.N.Y. 2002). A bill of particulars "should not function to disclose evidence, witnesses, and legal theories to be offered by the Government at trial or as a general investigative tool for the defense". United States v. Henry, 861 F.Supp. 1190, 1197 (S.D.N.Y. 1994).
The court "has the discretion to deny a bill of particulars if the information sought by defendant is provided in the indictment or in some acceptable alternate form". United States v. Barnes, 158 F.3d 662, 665 (2d Cir. 1998). See United States v. Messina, 2012 WL 463973, *10 (E.D.N.Y. 2012) (). "Whether to grant 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).
"[T]here is a special concern for particularization in conspiracy cases." United States v. Palmer, 2012 WL 2953659, *3 (W.D.N.Y.2012) (Scott, M.J.) (citing United States v. Davidoff, 845 F.2d 1151 (2d Cir. 1988)). Thus, "a bill of particulars or other adequate disclosure is appropriate where a conspiracy count covers a complex series of events over a number of years, but provides only the bare bones of the charge". Barnes, 158 F.3d at 666.
Based upon the government's agreement that it will not seek to prove at trial defendant's participation in the conspiracy prior to September 2014, the duration of defendant's alleged participation in the conspiracy is no more than approximately two months. Coupled with the limited duration of defendant's participation in the alleged conspiracy, there is nothing before me or argued by defendant to suggest that this is a complex conspiracy warranting a bill of particulars. The government's agreement to provide defendant with the grand jury testimony supporting the Second Superseding Indictment's allegation that defendant participated in the conspiracy from September 2014 to the time of his arrest on November 5, 2014, when coupled with the other discovery produced, provides defendant with sufficient information to enable him to prepare for trial.
Additionally, much of the particularization defendant seeks is not of the type to which he is entitled. United States v. Feola, 651 F.Supp. 1068, 1132 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (2d Cir. 1989). See United States v. Mullen, 243 F.R.D. 54, 62 (W.D.N.Y. 2006) (Foschio, M.J.) ("as the government can prove the existence of a conspiracy through circumstantial evidence, a Bill of Particulars comprised of very specific details is not required for a drug trafficking conspiracy charge"). Thus, United States v. James, 2007 WL 914242, *26 (E.D.N.Y. 2007). See United States v. Nicolo, 523 F. Supp. 2d 303, 317 (W.D.N.Y. 2007) (Larimer, J.), aff'd, 421 Fed. App'x 57 (2d Cir. 2011) (Summary Order) () ; United States v. Chen, 2007 WL 2244213, *10 (S.D.N.Y. 2007) (). Therefore, this portion of defendant's motion is denied.
Apart from the government's Brady, Giglio, and Jencks Act obligations, which are addressed separately, "Rule 16 is . . . the sole authorized vehicle under the Federal Rules of Criminal Procedure for pre-trial discovery in criminal cases". United States v. Louis, 2005 WL 180885, *2 (S.D.N.Y.2005). The government represents that it "has provided all discovery required at this time under Rule 16, which will be supplemented with Jencks Act material, to the extent not already provided, including grand jury transcripts, as required by the District Court's pretrial...
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