Opinion
01 Cr. 517 (MBM).
January 8, 2002
The indictment in this case charges that the defendant, while a New York City police officer, conspired from April until late June or early July 1996 with unnamed others to deny unnamed persons the free enjoyment of federally guaranteed rights by seizing their property unlawfully. The overt acts section of the indictment charges that in late June or early July 1996 defendant and another police officer staged the arrest of a co-conspirator. The government specified by letter on August 22, 2001 that the staged arrest occurred on July 2, 1996, between 3:00 p.m. and 6:00 p.m., and defendant has been otherwise apprised of the name of the other police officer involved in the staged arrest. (See Culleton Aff. ¶ 6(b)). Defendant has moved for a bill of particulars identifying the undisclosed alleged co-conspirator and the unnamed alleged victim(s). Except to the limited extent set forth below, the motion is denied.
Defendant has also moved to bar the government from offering at trial pursuant to Fed.R.Evid. 404(b), "evidence of other criminal activity by the defendant as proof of the defendant's motive, opportunity, intent, preparation, plan, knowledge, identity and absence of mistake or accident." (Notice of Motion at 2) For the reasons set forth below, that motion is denied.
I.
Defendant says he wants to know the names of the alleged co-conspirator and the alleged victim(s) so that he can investigate whether the events charged in the indictment took place. However, the device of a bill of particulars was not created to help the defendant investigate the charges in the indictment. Rather, it is designed to avoid unfair surprise to the defendant at trial, and to permit the defendant to invoke the defense of double jeopardy. Those are the only legitimate purposes of a bill of particulars. Wong Tai v. United States, 273 U.S. 77, 82 (1927); New York Cent. Hudson R.R. Co. v. United States, 212 U.S. 481, 497 (1909). A defendant may not use a bill of particulars as a general investigative tool. See United States v. Salazar, 485 F.2d 1272, 1277-78 (2d Cir. 1973) Nor may he use a bill of particulars to preview the government's evidence or trial strategy, or to require the government to specify the minutiae of how it will prove the charges. United States v. Wilson, 565 F. Supp. 1416, 1438 (S.D.N.Y. 1983) (Weinfeld, J.); United States v. Muyet, 945 F. Supp. 586, 599 (S.D.N.Y. 1996) ("[D]efendants are not entitled to a bill of particulars setting forth the `whens,' `wheres,' and `with whoms' regarding the . . . conspiracy."). The stakes in a criminal case are high, and temptations of perjury, subornation and intimidation are ever present. Accordingly, the government is not required to turn over information that will permit a defendant to preview the government's case and tempt him to tailor proof to explain it away, or see to it that the government's proof is not presented. United States v. Cimino, 31 F.R.D. 277, 279 (S.D.N.Y. 1962), and cases cited therein,aff'd 321 F.2d 509 (2d Cir. 1963); United States v. Simon, 30 F.R.D. 53, 55 (S.D.N.Y. 1962) (Weinfeld, J.). See also United States v. Malinsky, 19 F.R.D. 426, 428 (S.D.N.Y. 1956) ("Discovery in criminal proceedings is not comparable to discovery in civil because of the nature of the issues, the danger of intimidation of witnesses, and the greater danger of perjury and subornation of perjury.").
Defendant relies on United States v. Saa, 859 F.2d 1067 (2d Cir. 1988), where the Court held that the government was required to disclose the identity of a confidential informant whom the government did not intend to call at trial. Here, the government has stated that it intends to call at least the alleged co-conspirator, and has strongly implied that it intends as well to call the victim(s) by arguing that disclosure "of the victim(s) whose money was stolen in the staged arrest is an attempt to obtain a preview of the Government's potential witness list." (Letter from Evan T. Barr to the Court of 9/21/01 at 5.) The case is now scheduled for trial beginning February 25, 2002. The government is directed to disclose by February 11, 2002, the name of any victim it does not intend to call at trial. Should the government remain uncertain by that time as to whether it will call a victim, it should disclose that fact to defense counsel and the Court, and the matter will be dealt with at a pretrial conference.
II.
Defendant sets forth no basis for the motion to exclude other crimes evidence offered under Rule 404(b) of the Federal Rules of Evidence, and his list of the purposes for which such proof should not be admitted duplicates the purposes for which such proof is permitted by the explicit terms of the Rule. Moreover, the courts in this Circuit "follow an inclusionary rule, allowing the admission of such evidence for any purpose other than to show a defendant's criminal propensity, as long as the evidence is relevant and satisfies the probative-prejudice balancing test of Rule 403 of the Federal Rules of Evidence." United States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994). Therefore, the motion is denied without prejudice to renewal at trial upon disclosure of any proffered Rule 404(b) evidence.
SO ORDERED.