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UNITED STATES v. LOVECCHIO

March 29, 1983

UNITED STATES of America
v.
Samuel LOVECCHIO



The opinion of the court was delivered by: CALDWELL

 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.

 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 relevant case law shows that a request for such materials is wholly inappropriate when sought through a pretrial discovery motion. See, e.g., United States v. Harris, 458 F.2d 670 (5th Cir.), cert. denied, 409 U.S. 888, 93 S. Ct. 195, 34 L. Ed. 2d 145 (1972). The government has indicated its willingness to disclose appropriate materials if acquired and in fact has already provided some materials relevant to defendant. Any overlap of this request with the motion to inspect grand jury minutes (addressed infra) or any other requests in the current motion regarding grand jury materials are incorporated into our discussion thereof and need not be repeated here.

 In request 12, defendant seeks detailed information on all witnesses that the government intends to call at trial. Included in this request is grand jury testimony or a summary thereof. The authority cited falls far short of showing defendant's entitlement to such information. For example, the court in United States v. Chaplinski, 579 F.2d 373, 375 (5th Cir.1978) stated, "It is clear law that '[a] part from the Congressionally created exception in capital cases, the granting of a defense request for a list of adverse witnesses is a matter of judicial discretion . . .'. United States v. Hancock, 5 Cir., 1971, 441 F.2d 1285, 1286; United States v. Moseley, 5 Cir., 1971, 450 F.2d 506, 510." We also note our agreement with the government that request 24 is essentially seeking the names and addresses of government witnesses, and we will deny it.

 Request 26 expansively asks for "all vital incriminating information which the Government intends to offer into evidence at trial against the Defendant." In support, defendant has cited United States v. King, 461 F.2d 53 (8th Cir.1972), wherein among the reasons for reversal of a conviction, was the government's last minute disclosure of chemical tests which the court had ordered be provided to defendant. The result in King was that defense counsel had no opportunity to counter these test results. See id. at 57-58 n. 5. However, though the King court referred to "vital incriminating information," we do not interpret the language to mean that defendant, by simply framing a request for information in that manner, has access to the entire government file.

 In actuality, King seems to be in line with the provisions of Federal Rule of Criminal Procedure 16(a)(1)(D), which in relevant part requires the government to comply with a request of defendant to inspect and copy the results or reports of scientific tests, whether exculpatory or non-exculpatory. The rationale we follow here is well-stated in United States v. Boffa, 513 F. Supp. 444, 485 (D.Del.1980), where, in a bill of particulars context and citing Addonizio, supra, the court observed that "there is no requirement that the Government weave all the information at its command into a warp of fully integrated trial theory for the benefit of the defendants."

 Request 29 seeks information regarding grants of immunity to grand jury witnesses regardless of whether they will be called by the government to testify at trial. Defendant's reliance on Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), appears misplaced since that case forbids "the suppression by the prosecution of evidence favorable to an accused upon request . . . where the evidence is material either to guilt or punishment." Id. at 87, 83 S. Ct. at 1196, 10 L. Ed. 2d at 218.

 The other case cited by defendant is United States v. Brighton Bldg. & Maintenance Co., 435 F. Supp. 222, 233 (N.D.Ill.1977), wherein a defendant had sought discovery of "any grants of immunity or promises of leniency given by the Government to any party or witness." The court noted that there already was compliance with the obligations set forth in Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972) *fn1" but directed that the government "should provide . . . a list of all witnesses granted immunity . . . before the grand jury." 435 F. Supp. at 233 [emphasis in original]. From the wording in Brighton it is difficult to discern whether the court meant to restrict the list to trial witnesses who were granted immunity before the grand jury or to include everyone who testified before the grand jury under a grant of immunity, whether called at trial or not. We believe the better reasoned interpretation is the former. The government has indicated that none of its ...


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