Opinion
No. 3:15cr286
07-26-2017
UNITED STATES OF AMERICA v. SAMUEL M. LOMBARDO, Defendant
( ) MEMORANDUM
Before the court for disposition are several pretrial motions filed by Defendant Samuel M. Lombardo. The motions have been briefed, and they are ripe for disposition.
Background
On December 8, 2015, a grand jury returned a four-count indictment against Defendant Samuel Lombard. (Doc. 1 at 1). Counts 1 and 2 of the indictment charges defendant with violating 21 U.S.C. § 841(a)(1) for knowingly and intentionally distributing heroin on August 12, 2015 and August 13, 2015 in Luzerne County. (Id.) Count 3 charges defendant with violating 21 U.S.C. § 841(a)(1) for knowingly and intentionally possessing with the intent to distribute heroin on August 12, 2015 and August 13, 2015 in Luzerne County. (Doc. 1 at 2). Finally, Count 4 charges defendant with knowingly and intentionally possessing a firearm during and in relation to a drug trafficking crime on August 13, 2015 in Luzerne County in violation of 18 U.S.C. § 924(c). (Doc. 1 at 3). Count 4 of the indictment describes the weapon allegedly possessed by defendant as a .25 caliber Armi Tanfolio semi-automatic handgun with the serial number MI93340. (Doc. 1 at 3).
The indictment includes forfeiture allegations pursuant to 18 U.S.C. § 924(d), 28 U.S.C. § 2461(c), and 21 U.S.C. § 853. (Doc. 1 at 3-4). Specifically, the indictment orders defendant, if convicted, to forfeit the .25 caliber Armi Tanfolio semi-automatic handgun with the serial number MI933403 and any other property or proceeds obtained directly or indirectly as a result of the offenses. (Doc. 1 at 4).
On April 11, 2016, defendant filed a motion for discovery requesting video tape surveillance, any statements made by defendant or co-defendants, all FBI notes, memos, 302s and other discoverable prosecution reports about defendant, and any information regarding informants or cooperating witnesses. (Doc. 12 at 2).
On April 11, 2016, defendant also filed a motion to compel the government to provide defendant with evidence of any uncharged misconduct pursuant to Federal Rules of Evidence 404(a) and 404(b) that will be used to impeach the defendant if he chooses to testify. (Doc. 13 at 4).
Finally, on April 11, 2015 defendant filed a motion for a bill of particulars requesting the government specifically state how it intends to prove the defendant intentionally and knowingly used a firearm in relation to a drug trafficking crime on August 12, 2015 and August 13, 2015 in violation of 18 U.S.C § 924(c). (Doc. 11 at 2). Additionally, defendant requests the government identify specifically what property and proceeds beyond the handgun are included in the forfeiture allegation. (Doc. 11 at 3). The Government maintains a bill of particulars is inappropriate in this case because the indictment sufficiently described the charges filed against defendant. (Doc. 46 at 10).
We will address each of the defendant's motions in turn.
Discussion
I. Defendant's Motion for Discovery
Rule 16 of the Federal Rules of Criminal Procedure requires the government, upon defendant's request, to disclose any relevant written or oral statements made by defendant. FED. R. CRIM. P. 16(a)(1)(A-B). Rule 16 also requires the government to produce copies of "books, papers, documents, data photographs, tangible objects, buildings or places" if the item is under government control and is material to preparing a defense. FED. R. CRIM .P. 16(a)(1)(E)(i).
Here, defendant filed a motion for discovery on April 11, 2015 and requested the government produce video tape surveillance, any written or recorded statements made by the defendant or co-defendant, any "FBI notes, memos, 302s, or other discoverable prosecution reports pertaining to defendant, and any information regarding informants or cooperating witnesses, including transcripts of the grand jury testimony." (Doc. 12 at 2). The government responded to defendant's motion on June 15, 2017. (Doc. 43 at 1). As of June 16, 2017, the government provided defendant with the surveillance video in addition to recorded conversations between defendant and the CI, and photographs of the defendant and CI sitting in defendant's car on August 12, 2015 and August 13, 2015. (Doc. 46 at 3-4). Further, the government agreed to provide defendant with any additional discovery as it becomes available. (Doc. 43 at 1).
It appears the government has endeavored to provide defendant with all material in its possession. (Doc. 43 at 1). Further, the government indicated it will continue to produce materials as they become available. (Doc. 43 at 1). Accordingly, we will deny this motion without prejudice because the issue is moot. Should an issue arise in future, defendant can file another motion.
II. Defendant's Motion to Compel
Rule 404 of the Federal Rules of Evidence allows the government to introduce evidence of another crime or wrong committed by the defendant for limited purposes such as to show "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." FED. R. EVID. 404(b)(2). However, this evidence cannot be introduced to demonstrate a person's character or to show the person acted in accordance with that character. FED. R. EVID. 404(b)(1). Upon defendant's request, the government must provide the defendant with reasonable notice of the evidence the government intends to use at trial. FED. R. EVID. 404(b)(2)(A).
On April 11, 2015, defendant filed a motion to compel the government to provide notice of any evidence the government intends to introduce regarding any prior or subsequent criminal conduct not charged in the indictment. (Doc. 13 at 4). On June 15, 2017, the government provided defendant with the requested written notice pursuant to Rule 404(b). (Doc. 45 at 1). We will deny defendant's motion to compel as moot because the government complied with defendant's request.
III. Defendant's Motion for Bill of Particulars
Rule 7(f) of the Federal Rule of Criminal Procedure provides "the court may direct the government to file a bill of particulars." FED. R. CRIM. P. 7(f). The Third Circuit has indicated that "the purpose of a bill of particulars is to 'inform the defendant of the nature of the charges brought against him, to adequately prepare his defense, to avoid surprise during the trial and to protect him against a second prosecution for an inadequately described defense.'" United States v. Addonizio, 451 F.2d 49, 63-64 (3d Cir. 1972).
Defendant argues Rule 7(f) must be interpreted liberally because the purpose of the 1966 amendment to Rule 7(f) was to increase the circumstances when particulars are granted. While Addonizio supports this liberalized interpretation, it also explicitly mentions that the liberalization is limited and a defendant is not entitled to a "wholesale discovery of the Government's evidence." Addonizio, 451 F.2d at 64. The Third Circuit emphasized the importance of limiting the expansion of Rule 7(f) as follows "trial judges must be allowed to exercise broad discretion in order to strike a prudent balance between the defendant's legitimate interest in securing information concerning the government's case and numerous countervailing considerations ranging from personal security of witnesses to the unfairness that can result from forcing the government to commit itself to a specific version of the facts before it is in a position to do so." United States v. Rosa, 891 F.2d 1063, 1066 (3d Cir. 1989).
Here, defendant alleges Count 4 of the indictment was not set forth with adequate specificity. However, the indictment adequately describes the date, location, and exact handgun involved in the drug trafficking offense. It specifically indicates that on or about August 13, 2015 in Luzerne County, defendant used a .25 caliber Armi Tanfolio semi-automatic handgun, serial number MI93340 in the commission of a drug trafficking offense. (Doc. 1 at 3).
Although defendant requested specific facts as to how the handgun was allegedly used during the offense on August 12, 2015 and August 13, 2015, the government and indictment both indicate the gun was only used on August 13, 2015. Because there is no allegation that defendant used the gun in commission of the offense on August 12, 2015, no reason exists for any additional information regarding that date.
We rule on this motion for a bill of particulars after the completion of a thorough discovery. "In ascertaining whether a bill of particulars is appropriate, the Court may consider not only the indictment, but also all the information which has been made available to the defendants." United States v. Fischbach & Moore, Inc., 576 F. Supp. 1384, 1389 (W.D. Pa. 1989) (citing United States v. Kenny, 462 F.2d 1205, 1212 (3d Cir.), cert. denied, 409 U.S. 914 (1972); United States v. Bloom, 78 F.R.D. 591, 600-01 (E.D. Pa. 1977); United States v. Azzarelli Constr. Co., 459 F. Supp. 146, 151 (E.D. Ill. 1978), aff'd, 612 F.2d 292 (7th Cir. 1979), cert. denied, 447 U.S. 920, 100 S. Ct. 3010, 65 L.Ed.2d 1112 (1980); United States v. Barrows, 122 F. Supp. 324, 325 (D. Del. 1954)).
Defendant correctly notes the indictment and discovery produced evidence to suggest the gun was in defendant's car on August 13, 2015. (Doc. 14 at 2). Defendant argues there is no evidence to suggest defendant used the gun, only evidence that the gun was in the car. Id. However, the government made all evidence in its possession available to defendant through discovery. (Doc. 43 at 1). The evidence included video and photograph surveillance that placed defendant in his car at the time of the alleged drug trafficking offense on August 13, 2015. (Doc. 46 at 3). Further, the government produced a recorded interview with the Kingston Police Department where defendant admitted he carried the firearm for protection while he was engaged in drug trafficking. (Doc. 46 at 3-4).
The forfeiture allegation in the indictment complies with 21 United States Code Section 853. The language used in the indictment is almost identical to the language used in the statute. Defendant can adequately defend the forfeiture allegation with the information provided in the indictment, thus we deny defendant's request for a bill of particulars.
The specificity and clarity of the indictment coupled with the evidence obtained by defendant through discovery is sufficient for defendant to understand the charges, adequately prepare for trial and not be subject to any surprises at trial or a second prosecution for an inadequately described offense. U.S. v. Rosa, 891 F.2d 1063 (3d Cir. 1989). Accordingly, we will decline defendant's request for a bill of particulars.
Conclusion
For the above reasons, defendant's motion for discovery, motion to compel, and motion for a bill of particulars will all be denied. An appropriate order follows. DATE: July 26 , 2017
s/ James M. Munley
JUDGE JAMES M. MUNLEY
UNITED STATES DISTRICT COURT