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United States v. Smith

March 4, 2009

UNITED STATES OF AMERICA
v.
THURMAN H. SMITH, DEFENDANT.



The opinion of the court was delivered by: Judge McClure

ORDER

BACKGROUND

On August 14, 2008, a grand jury sitting in the Middle District of Pennsylvania returned a third superseding indictment which charged Smith, along with eighteen co-defendants, with conspiracy to distribute a controlled substance and possession with intent to distribute a controlled substance within 1000 feet of a playground, all in violation of 21 U.S.C. §§ 841, 846, and 860. (Rec. Doc. No. 435).

On September 3, 2008, Smith was arraigned and entered a plea of not guilty. On December 8, 2008, Smith filed the following motions: Motion for Bill of Particulars (Rec. Doc. No. 617), Motion for the Production of Evidence Under the Brady Doctrine (Rec. Doc. No. 618), Motion for Disclosure Pursuant to FRE 404(b) and 609 (Rec. Doc. No. 619), Motion for Disclosure Pursuant to FRE 807 (Rec. Doc. No. 620), Motion for Discovery Pursuant to FRCP 16 (Rec. Doc. No. 621), Motion for Early Disclosure of Statements (Rec. Doc. No. 622), Motion for Grand Jury Transcripts (Rec. Doc. No. 624), and Motion for Pre-Trial Hearing to Determine Existence of Conspiracy (Rec. Doc. No. 625). Smith filed a brief in support of the eight motions on December 11, 2008. (Rec. Doc. No. 629).*fn1 The Government filed opposition briefs on February 9, 2009. Defendant did not reply. These motions are now ripe for disposition.

For the following reasons we will deny defendant's Motion for a Bill of Particulars, Motion for the Production of Evidence Under the Brady Doctrine, Motion for Disclosure Pursuant to FRE 404(b) and 609, Motion for Discovery Pursuant to FRCP 16, Motion for Early Disclosure of Statements, Motion for Grand Jury Transcripts and Motion for Pre-Trial Hearing to Determine Existence of Conspiracy. We will also direct the Government to provide notice to Defendant under Rule 807 of the Federal Rules of Evidence at least 10 days before the start of the evidentiary phase of the trial.

DISCUSSION

1. Motion for Bill of Particulars

Federal Rule of Criminal Procedure 7(f) provides: Bill of Particulars. The court may direct the government to file a bill of particulars. The defendant may move for a bill of particulars before or within 10 days after arraignment or at a later time if the court permits. The government may amend a bill of particulars subject to such conditions as justices requires. "'The purpose of the bill of particulars is to inform the defendant of the nature of the charges brought against him [so that he may] adequately prepare his defense, to avoid surprise during the trial and to protect him against a second prosecution for an inadequately described offense.'" United States v. Addonizio, 451 F.2d 49, 63-64 (3d Cir. 1971) (quoting United States v. Tucker, 262 F. Supp. 305, 308 (S.D.N.Y. 1966)). A defendant has no right to a bill of particulars. United States v. O'Driscoll, 203 F. Supp. 2d 334, 348 (M.D. Pa. 2002). Granting a motion for a bill of particulars lies within the court's discretion. United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990); United States v. Armocida, 515 F.2d 49, 54 (3d Cir. 1975).

A motion for a bill of particulars should be granted if the government's failure to allege factual or legal information in the indictment "significantly impairs the defendant's ability to prepare his defense or is likely to lead to prejudicial surprise at trial." United States v. Rosa, 891 F.2d 1063, 1066 (3d Cir. 1989). Because a bill of particulars defines and limits the government's case, the court must weigh the "defendant's interest in securing information" against the "government's interest in not committing itself to facts before it is in a position to do so." United States v. Serafini, 7 F. Supp. 2d 529, 547 & n.13 (M.D. Pa. 1998).

In his motion for a bill of particulars, Smith sets forth numerous requests for information regarding the crimes charged in the indictment. His requests are as follows:

I. Count 1

1. Count 1 of the Third Superceding Indictment charges that the acts alleged occurred in Lycoming County, and elsewhere in the Middle District of Pennsylvania within the jurisdiction of this Court and elsewhere. Specify each location where the conduct charged in Count I occurred, including the Municipality, the County and the State.

2. Identify all of the persons with whom the Defendant, Thurman H. Smith, allegedly conspired, including those person referenced in the Third Superceding Indictment as "other persons both known and unknown to the Grand Jury".

3. Identify each person with whom the Defendant, Thurman H. Smith, allegedly distributed crack cocaine, including the amount of crack cocaine distributed, the location where the distribution was made, the date the distribution was made, and the identity of each and every person present when the distribution was made.

4. Specify the names of each and every individual with whom Thurman H. Smith allegedly conspired, including unindicted con-conspirators, and indicate as precisely as possible the date or dates upon which Thurman H. Smith and each such individual became co-conspirators.

5. If any of Thurman H. Smith's alleged co conspirators withdrew from the alleged conspiracy, indicate the name of the individual, the date upon which he or she withdrew, and the manner in which he or she withdrew.

6. Specify all overt acts committed in furtherance of the conspiracy, and no named in the Third Superceding Indictment, which the Government intends to offer evidence at Trial, including the nature of the act, the time, date and place of the act, and the names and addresses of all persons who participated in or were present during the act, and specify the conduct of each participating individual.

7. Specify each act performed by the Defendant, Thurman H. Smith, in furtherance of or contributing to the conspiracy, concerning which the Government intends to offer evidence at Trial, including the nature of the act, the time, date and place of the act, and the name ...


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