US v. Walker

• Decision Date: 10 April 1996
• Docket Number: No. 95-CR-101-ALL.,95-CR-101-ALL.
• Citation: 922 F. Supp. 732
• Parties: UNITED STATES of America, v. Tommy WALKER, Gary Miller, Raymond Cobb, Cynthia Chaney, Prentis Lindsey, Kevin Watson aka "Archie Hooks", Henry O. Felton aka "Guess", Andre Galloway aka "Gap", Lorraine Howard, Melvina Bennett, George Belgrove, Gregory Leon Whitehurst, David Kyles, and Jorge Pasqual, Defendants.
• Court: U.S. District Court — Northern District of New York

922 F. Supp. 732

UNITED STATES of America, v. Tommy WALKER, Gary Miller, Raymond Cobb, Cynthia Chaney, Prentis Lindsey, Kevin Watson aka "Archie Hooks", Henry O. Felton aka "Guess", Andre Galloway aka "Gap", Lorraine Howard, Melvina Bennett, George Belgrove, Gregory Leon Whitehurst, David Kyles, and Jorge Pasqual, Defendants.

No. 95-CR-101-ALL.

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

April 10, 1996.

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Salvatore J. Piemonte, Syracuse, New York, for Defendant Walker.

John P. Clinton, Jamesville, New York, for Defendant Miller.

Thomas F. Shannon, Syracuse, New York, for Defendant Cobb.

Robert G. Wells, Syracuse, New York, for Defendant Chaney.

William D. Walsh, Syracuse, New York, for Defendant Lindsey.

Frank J. Vavonese, Syracuse, New York, for Defendant Watson.

James H. Medcraf, Syracuse, New York, for Defendant Felton.

Hunt, O'Rourke Law Firm (Frederick H. O'Rourke, of counsel), Syracuse, New York, for Defendant Galloway.

Richard D. Priest, Syracuse, New York, for Defendant Howard.

Lisa A. Peebles, Syracuse, New York, for Defendant Bennett.

George P. Alessio, Syracuse, New York, for Defendant Belgrove.

John F. Laidlaw, Syracuse, New York, for Defendant Whitehurst.

Bruce R. Bryan, Syracuse, New York, for Defendant Kyles.

Thomas J. Maroney, United States Attorney, Northern District of New York (Richard R. Southwick, Assistant U.S. Attorney, of counsel), Syracuse, New York, for U.S.

MEMORANDUM-DECISION AND ORDER

MUNSON, Senior District Judge.

Presently before the court are defendants Miller, Lindsey, Watson, Felton, Cobb, Chaney, Howard and Belgrove's criminal omnibus motions, which number well over 150 individual motions.¹ In the second superseding indictment containing 27 counts, each of the defendants are charged with, inter alia, conspiracy to possess with intent to distribute cocaine, cocaine base, marijuana, and methamphetamine, in violation of 21 U.S.C. ? 841(a)(1). Oct. 19, 1995 Second Superseding Indictment, Document ("Doc.") 218. Several defendants are charged with engaging in a Continuing Criminal Enterprise, in violation of 21 U.S.C. ? 848(a) and (c), and 18 U.S.C. ? 2. Id. The court heard oral argument on March 1, 1995 at Syracuse, New York. The following constitutes the court's Memorandum-Decision and Order ("MDO") with regard to the instant motions.

BACKGROUND²

Defendants Tommy Walker and Prentis Lindsey are named in the first count of the indictment which alleges that they operated a "Continuing Criminal Enterprise" in that they supervised the distribution of drugs in Utica, Rome and Auburn, New York, in violation of 21 U.S.C. ? 848(a) and (c). The second count of the indictment charges defendants Lindsey and Walker along with all of their named codefendants with conspiring to distribute and possess with the intent to distribute controlled substances including cocaine, cocaine base, methamphetamine, and marijuana between 1991 and March 1995, in violation of 21 U.S.C. ?? 841 and 846.

Counts 3, 4, and 5 refer to firearm possession and sales by Tommy Walker in Utica, New York. Counts 7 through 12 involve undercover purchases of drugs from defendant Walker. Counts 13 and 14 pertains to drugs seized from a vehicle that was occupied by defendants David Kyles and Gregory Leon Whitehurst. Count 15 refers to drugs seized from a vehicle used by defendant Kevin Watson in Auburn, New York. Counts 16 through 19 pertain to drugs and weapons seized from a residence in Utica, New York, pursuant to a warrant to search the home of defendant Walker and defendant Tracey Blackwell. Defendant Gary Miller was also present when the warrant was executed. Counts 20 through 25 refer to weapons seized pursuant to a warrant to search the home of Cynthia Chaney and Raymond Cobb in Utica, New York. Count 26 charges defendants Walker and Lindsey with conspiracy to possess and deal in firearms. Lastly, count 27 is a criminal forfeiture brought pursuant to 21 U.S.C. ? 853, seeking forfeiture of illegally obtained assets in the amount of approximately $185,000.

DISCUSSION

I. Bill of Particulars

Defendants request a bill of particulars specifying items, too numerous to list here, pertaining to the crimes that defendants allegedly committed. Whether to grant a motion for a bill of particulars lies within the sound discretion of the court. United States v. Torres, 901 F.2d 205, 234 (2d Cir.1990) (citing United States v. Panza, 750 F.2d 1141, 1148 (2d Cir.1984)); Fed. R.Crim.P. 7(f). A bill of particulars serves to "apprise a defendant of the nature of the charges against him, so that he can adequately prepare a defense, avoid prejudicial surprise at trial, and plead double jeopardy in that or any subsequent related action." United States v. Greater Syracuse Bd. of Realtors, Inc., 438 F.Supp. 376, 379 (N.D.N.Y.1977) (Munson, J.); see also United States v. Feola, 651 F.Supp. 1068, 1132 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (2d Cir. 1989) (citations omitted). If a defendant is supplied with adequate information to prepare a defense, then the court may deny the motion. Id. A bill of particulars is not to be used as a general investigative tool for the defendant, or a device through which to learn the government's evidence or legal theories prior to trial. United States v. Biaggi, 675 F.Supp. 790, 809 (S.D.N.Y.1987). Because redundant information is not necessary to prepare a defense, defendants are not entitled to discover through a bill of particulars information which is already available to them through other sources. Feola, 651 F.Supp. at 1132. In determining whether a bill of particulars is warranted, the court should consider "the complexity of the offense, the clarity of the indictment, and the degree of discovery otherwise available to the defendants." United States v. Diaz, 675 F.Supp. 1382, 1390 (E.D.N.Y.1987) (quoting United States v. Shoher, 555 F.Supp. 346, 349 (S.D.N.Y.1983)).

Furthermore, demands for particulars regarding the formation of a conspiracy have almost universally been denied. Matters such as the exact time and place of the overt acts and names of the persons present are not properly the subject of a bill of particulars. United States v. Wilson, 565 F.Supp. 1416, 1438 (S.D.N.Y.1983) (quoting United States v. Kahaner, 203 F.Supp. 78, 84 (S.D.N.Y.1962)). The details regarding how and when a conspiracy was formed, or when each participant entered it, need not be revealed before trial. Feola, 651 F.Supp. at 1132. In fact, detailed evidence of a conspiracy is generally unavailable to defendants through a bill of particulars, and overt acts in furtherance of the conspiracy need not be disclosed. United States v. DeFabritus, 605 F.Supp. 1538, 1548 (S.D.N.Y.1985). Defendants are not entitled to the locations, other than those listed in the indictment, at which they are alleged to have violated the statute provided that this information is made available to defendants in a manner sufficient to enable them to properly prepare for trial. Feola, 651 F.Supp. at 1133 (citing United States v. Massino, 605 F.Supp. 1565, 1582 (S.D.N.Y.1985)). "Nor are defendants entitled to receive, by way of a bill of particulars, all documents which would in any way tend to verify the meetings or activities described in the overt acts; the exact time and place of each overt act in the indictment; the names and addresses of persons present during the meetings; nor all meetings at which the defendant was present." Feola, 651 F.Supp. at 1133 (citation omitted).

Items which have been held by other courts to be subject to disclosure through a bill of particulars include: "the names of all persons the Government will claim to have been co-conspirators, to the extent such persons are known to the Government; the locations of acts set forth in the counts, to the extent performed by principals; and the place where the principal offense charged allegedly occurred." Feola, 651 F.Supp. at 1133 (citations omitted). However, even these items may be exempt from disclosure if the information would reveal the government's theory underlying those counts. Id.

In the case at bar, the court reviewed each specific request by the defendants and finds, in view of the principles listed above, that the government has already provided each defendant with information specific enough to prepare a defense with reasonably diligent effort, avoid unfair surprise, and prepare a double jeopardy pleading, if applicable. The indictment is detailed, and significant discovery materials already have been provided to the parties. It is worth noting that the indictment contains an introductory section setting forth a somewhat detailed description of the structure of the alleged criminal organization and the roles each defendant held in that organization. Oct. 19, 1995 Second Superseding Indictment ("Indictment"), Doc. 94, at 1-8. The indictment also advises each defendant, with three exceptions discussed below, as to the time and place of alleged crimes and the names of codefendants. Each count in the indictment also contains the date, location and substance of the conduct that is alleged regarding the defendants named in those counts. It is especially noteworthy that the government has already provided defendants with extensive documents, and has provided them with the opportunity to inspect physical evidence, including photographs, audiotape recordings, laboratory reports, investigative reports and witness statements obtained from various law enforcement agencies.

Although the court finds that the government has disclosed substantial materials to defendants, certain additional information requested by three of the defendants must be provided by the government. In particular, the court notes that defendants Howard, Belgrove and Felton are named only in count 2 of the indictment, charging them generally with conspiracy to possess and...