Opinion
00 Cr. 182 (JGK)
September 28, 2000
OPINION AND ORDER
The defendants in this case — Dr. Ronald A. Jones, Gordon Brodwin, and Ismael Sosa, — have been charged in a one-count Indictment with conspiracy to violate the federal narcotics laws. The defendants have now moved to require the Government to produce evidence that is exculpatory or material to the defense, provide a bill of particulars, disclose the identities of confidential informants or produce confidential informants for an interview, and to state what evidence it intends to offer under Fed.R.Evid. 404(b). The defendants also seek to suppress certain evidence obtained as a result of arrest and search warrants. For the reasons that follow, the defendants' motions are denied.
The defendants also filed a motion to sever the trial of defendants Brodwin and Sosa from the trial of Dr. Jones pursuant to Fed.R.Crim. p. 14. At oral argument, however, the defendants withdrew the motion without prejudice to renew prior to trial.
I.
The Indictment in this case consists of one count, charging that from "in or about 1998 through in or about February 2000, [the defendants], and others known and unknown, unlawfully, intentionally and knowingly did combine, conspire, confederate and agree together and with each other to violate the narcotics laws of the United States." (Indictment (hereinafter "Ind.") ¶ 1.) As a part and object of the alleged conspiracy, the Indictment charges that the defendants distributed and possessed with intent to distribute, Hydromorphone, in a form commonly known as "Dilaudid, " in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(C) and 21 C.F.R. § 1308.12. (Ind. ¶ 2.) The Indictment then details three alleged overt acts committed in furtherance of the conspiracy. (Ind. ¶ 3.) The first overt act alleged is that on or about January 18, 2000, the defendant Dr. Jones gave a confidential informants four 360-tablet Dilaudid prescriptions in exchange for $600 in cash. The second overt act alleged is that on or about January 27, 2000, at the Brodwin-Sosa Pharmacy, the defendant Ismael Sosa filled four 360-tablet Dilaudid prescriptions provided by a confidential informants in exchange for $1,296 in cash. The third overt act alleged is that on or about July 7, 1999, at the Brodwin-Sosa Pharmacy, the defendant Gordon Brodwin filled a 300-tablet Dilaudid prescription for $270 in cash and did so again in the same amount for the same individual on or about July 14, 1999. The conspiracy is alleged to be in violation of 21 U.S.C. § 846.
II.
The defendants first move for disclosure of exculpatory and impeachment material pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).
The Government represents that it is aware of its obligations to make timely disclosure of Brady exculpatory material and will produce any Brady material to the defense well before trial. However, the Government represents that it is currently unaware of any Brady material. These representations are sufficient. See, e.g., United States v. Chen, No. 97 Cr. 763, 1999 WL 194749, at *14 (S.D.N.Y. April 7, 1999); United States v. Jennings, 5-98-CR- 418, 1998 WL 865617, at *3 (N.D.N.Y. Dec. 8, 1998); United States v. Szur, 97 Cr. 108, 1998 WL 132942, at *15 (S.D.N.Y. Mar. 20, 1998); United States v. Velasquez, 96 Cr. 126, 1997 WL 414132, at *6 (S.D.N.Y. July 23, 1997)
The Government opposes, however, pretrial disclosure of Giglio impeachment information and there is no requirement that the Government. produce such information before trial. See, e.g., Chen, 1999 WL 194749, at *14; Szur 1998 WL 132942, at *15;Velasquez, 1997 WL 414132, at *6-7 ; but see United States v. Shvarts, 90 F. Supp.2d 219, 225-29 (E.D.N.Y. 2000) . The Government proposes, instead, to follow its usual practice of making Giglio impeachment material available to the defense "at the time it provides prior statements of witnesses pursuant to [ 18 U.S.C. § 3500] — that is, one day prior to the day the witness is called to testify on direct examination, or, if additional time is reasonably required to review such material, sufficiently in advance of the witness's testimony so as to avoid any delay at trial." (Govt. Br. at 10.) These representations are sufficient. See Chen, 1999 WL 194749 at *14; United States v. Gallo, No. 98 Cr. 338, 1998 WL 9848, at *8 (S.D.N.Y. Jan. 11, 1999) ; Szur, 1998 WL 132942 at *15.
Therefore, the defendants' motions for exculpatory and impeachment material are denied as moot.
III.
The defendants next move pursuant to Fed.R.Crim.P. 7(f) for a bill of particulars. The defendants contend that they require more detailed information about the charges in the Indictment in order to prepare for trial. In particular, the defendants ask to have the Government provide the defendants with the following information: the identities of the "others" with whom the defendants are alleged to have conspired with; the role of each of the "others" in the conspiracy; the dates, times, and places each defendant and co-conspirator entered the alleged conspiracy and when the alleged conspiracy started; the dates, times, and places of each transaction involving each defendant that the government contends was in furtherance of the conspiracy; the specific role each defendant and co-conspirator had in the alleged conspiracy; the dates, times, and places of each alleged "sale" of Dilaudid that the government contends was in furtherance of the conspiracy; the dates, times, and places and the means and manner of the agreement of the defendants and co- conspirator to join and participate in the conspiracy alleged in the Indictment; the specific prescriptions filled by the defendants that the Government will attempt to prove at trial were unlawfully filled; and in what fashion each prescription, or the filling thereof, is alleged to be unlawful.
The decision whether to grant a bill of particulars pursuant to Rule 7(f) rests with the sound discretion of the district court.See United States v. Cephas, 937 F.2d 816, 823 (2d Cir. 1991);United States v. Panza, 750 F.2d 1141 (2d Cir. 1984); United States v. Strawberry, 892 F. Supp. 519, 526 (S.D.N.Y. 1995). A bill of particulars enables a defendant "to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense."United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). A bill of particulars is required "only when the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused." United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990) (citation omitted); see also Cephas, 937 F.2d at 823; Panza, 750 F.2d at 1148. "Generally, if the information sought by the defendant is provided in the indictment or in some acceptable alternate form, no bill of particulars is required." Bortnovsky, 820 F.2d at 574;see United States v. Barnes, 158 F.3d 662, 665 (2d Cir. 1998) ;see also United States v. Szur, 1998 WL 132942 at *11.
In this case, the defendants are not entitled to the bill of particulars they seek. The charges in the Indictment, which contains only one count, are straightforward and, coupled with the discovery provided by the Government and the ample time to review that discovery, sufficiently advise the defendants of the specific acts of which they are accused. See United States v. Muyet, 945 F. Supp. 586, 599 (S.D.N.Y. 1996); United States v. Ruiz, 702 F. Supp. 1066, 1070-71 (S.D.N.Y. 1989) . The information in the Indictment itself has been supplemented with a Complaint and accompanying Affidavit in Support of the Application for Arrest Search Warrants filed February 15, 2000. The thirty page Affidavit is detailed, outlining pertinent events between early 1998 and February 2000 and setting forth information concerning the charged narcotics conspiracy and the allegations against each defendant. Further, the Government points out that the Indictment has also been supplemented by significant discovery, obviating the need for further particulars. See, e.g., Torres, 901 F.2d at 234; United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984) . The materials provided to the defendants to date include: 1) discovery provided in the related Dilaudid conspiracy case ofUnited States v. Tracy Harris, 00 Cr. 106 (SHS); 2) large volumes of document seized from the offices of the defendants; and 3) copies of tape recorded conversations between the defendants and various confidential informants and undercover officers, as well as transcripts of some of those recordings. The details provided by the Government through discovery are sufficient to satisfy the purposes of a bill of particulars and no further particulars are required.
To the extent that the defendants' request for the identities of unnamed co-conspirators is really a request for a list of the witnesses whom the Government intends to call at trial, they are not entitled to this list before trial without a specific showing of need, which has not been established in this case. See United States v. Bejasa, 904 F.2d 137, 139-40 (2d Cir. 1990) (holding that there is no general right to pretrial disclosure of witness lists) (citing United States v. Cannone, 528 F.2d 296, 300) (2d Cir. 1975)). The information that the defendants seek is not necessary in this case to accomplish any valid purpose of a-bill of particulars. See, e.g., Torres, 901 F.2d at 233-34 (2d Cir. 1990) (upholding district court's denial of a bill of particulars where the defendant had requested, in part, "the identity of other persons "known and unknown' as alleged in . . . the indictment"); United States v. Reinhold, 994 F. Supp. 194, 200-01 (S.D.N.Y. 1998) (denying defendants' motion for a bill of particulars that sought "identification of alleged co-conspirators who have not been named in the Indictment"); Muyet, 945 F. Supp. at 599 (holding that where the Indictment and pretrial discovery had provided sufficient information to the defense, "[t]he defendants are not entitled to a bill of particulars setting forth the `whens,' `wheres,' and `with whoms' regarding the . . . conspiracy."); United States v. Jimenez, 824 F. Supp. 351, 363 (S.D.N.Y. 1993) (denying defendants' requests for a bill of particulars detailing "the `whens' `wheres' and `with whoms' of acts and participation in the charged conspiracy").
Moreover, "since the government is not required to prove exactly when or how a conspiracy was formed or when or how a particular defendant joined the scheme, and as the circumstantial proof on which the government usually relies to prove the existence of a scheme does not reveal such details, the courts have consistently rejected demands for particulars as to the formation of a conspiracy or the entry into the conspiracy of a particular defendant or confederate." United States v. Matos- Peralta, 692. F. Supp. 780, 791 (S.D.N.Y. 1988); see also Gallo, 1999 WL 9848, at *6; United States v. Pacheco, 902 F. Supp. 469, 474-75 (S.D.N.Y. 1995); United States v. Thomas, 94 Cr. 835, 1995 WL 312481, at *1 (S.D.N.Y. May 22, 1995). Thus, the defendants are not entitled to a bill of particulars detailing these evidentiary issues.
In sum, the Indictment, the Complaint, the supporting Affidavit, and the discovery already produced is more than sufficient to enable the defendants to prepare their defense, avoid unfair surprise at trial, and plead the defense of double jeopardy, if appropriate. See Torres, 901 F.2d at 234; Panza, 705 F.2d at 1148; Muyet, 945 F. Supp. at 598. Therefore, the defendants' motions for a bill of particulars are denied.
IV.
The defendants next move to require the Government to provide them with the identities and criminal histories of confidential informants in this case. In the alternative, the defendants move to be permitted to interview these witnesses. The Government responds that the defendants have not made the necessary showing that the testimony of any confidential informant is material to the defense.
"The defendant[s] bear the burden of establishing the need for disclosure of an informant's identity." Jimenez, 824 F. Supp. at 364. The Court of Appeals for the Second Circuit has held that the Government is not required to identify a confidential informant "unless the informant's testimony is shown to be material to the defense." United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988). In order to demonstrate such materiality, the defendant must show more than the fact that "the informant was a participant in and witness to the crime charged." Id. Here, "[t]he defendants have made no showing as to how the confidential informants' testimony would be at all material to their defenses." Jimenez, 824 F. Supp. at 365. Nor have they established their need for pretrial access to such information. As a result, the defendants' motion to have the Government produce the identities of any confidential informants, and to have pretrial access to any confidential informants, is denied.
V.
The defendants also seek, pursuant to Fed.R.Evid. 404(b), identification of prior similar acts evidence that the Government intends to introduce at trial.
Rule 404(b) requires "reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial." Fed.R.Evid. 404(b). What is reasonable depends on the circumstances of the case. See Chen, 1999 WL 194749 at *13.14 (finding two weeks before trial was reasonable in RICO-case); United States v. Heatley, 994 F. Supp. 483, 491 (S.D.N.Y. 1998) (requiring disclosure three weeks before trial in a RICO case); United States v. Henderson, No. 96 Cr. 221, 1997 WL 567935 at *2 (N.D.N.Y. Sept. 5, 1997) (directing disclosure "reasonably in advance of trial" in a conspiracy and narcotics case); United States v. Wilson, No. 95 Cr. 668, 1997 WL 10035 at *3 (S.D.N.Y. Jan. 10, 1997) (thirty days before trial in a RICO case in which alleged offenses span a twenty-year period).
The Government proposes, two weeks before trial, to provide to the Court and to the defendants notice of other crimes or bad acts, if any, that the Government will seek to prove at trial pursuant to Rule 404(b). The Government further agrees thereafter to provide prompt notice during trial of any new Rule 404(b) material that arises provided the court excuses pretrial notice on good cause shown. This proposal provides for reasonable notice given the charge in the Indictment in this case. On the basis of the Government's representation, the motions for early disclosure of Rule 404(b) evidence are denied as moot.
VI.
The defendants move to suppress all evidence obtained as a result of Dr. Jones's arrest and the search of his offices, on the ground that the Affidavit of Anastasia Marko ("Marko") in Support of the Application for Arrest and Search Warrants ("Affidavit") contained intentionally or recklessly false statements or material omissions, such that it failed to establish probable cause for the issuance of the arrest and search warrants. In the alternative, the defendants move for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), to determine the admissibility of the evidence seized. Specifically, the defendants argue that Marko, in Paragraph 14(a)-(d) of her Affidavit, intentionally misrepresented the reasons why a Dilaudid purchaser obtained four prescriptions and not five during an office visit. The defendants also allege numerous omissions from Paragraphs 12 through 15 of the Affidavit, including: (1) that defendant Jones treated many patients suffering from sickle-cell anemia and that the disease is painful; (2) that Jones discussed with many patients, including confidential informants, a medical study of the patients; (3) that sickle-cell anemia is genetically linked and affects many members of a family; (4) that most of Jones's patients were legitimately sick people; (5) that the patients brought to Jones by a confidential informant told Jones they were family members of the informant who had sickle-cell anemia and had authorized the informant to pick up their prescriptions; (6) that the confidential informant told Jones that other patients were his family members; (7) that an undercover agent told Jones he had sickle-cell anemia and that Jones confronted the agent about whether he really had the disease; and (8) that the undercover agent told Jones on several occasions that he was still in pain in order to obtain Dilaudid. The defendants claim that had this evidence been included in the Affidavit, it would have negated probable cause and Magistrate Judge Eaton would not have issued the arrest and search warrants.
To suppress evidence obtained pursuant to a warrant affidavit, a defendant must make a substantial preliminary showing that: "(1) the claimed inaccuracies or omissions are the result of the affiant's deliberate falsehood or reckless disregard for the truth; and (2) the alleged falsehoods or omissions were necessary to the [issuing] judge's probable cause finding." See United States v. Canfield, 212 F.3d 713, 717-18 (2d Cir. 2000) (quotation omitted); see also Franks, 438 U.S. at 155-56. "To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine." Franks, 438 U.S. at 171. Allegations that the affiant knowingly and intentionally made a false statement or material omission must be "accompanied by an offer of proof" and "[a]ffidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained." Id.
In this case, the defendants have submitted no affidavits or sworn or otherwise reliable statements of witnesses with personal knowledge specifically identifying the portions of the Affidavit that are claimed to be deliberately false or made with a reckless disregard for the truth, nor is the absence of an affidavit or reliable statement otherwise explained. An affidavit of counsel accompanying the notice of motion, contains the following: "I make this affidavit based on information and belief, the sources of which are conversations with individuals in a position to know the facts of this case, and a detailed investigation into the facts and circumstances of this case . . . . The legal and factual arguments advanced in support of the relief sought in the accompanying Notice of Motion are included in the Memorandum of Law." (Affidavit of Isabelle A. Kirshner ("Kirshner Aff.") sworn to July 7, 2000 ¶ 2, 3.)
The Memorandum in turn refers to numerous unattributed and unsworn statements such as: "In fact, upon information and belief, CWl claimed to be suffering from sickle-cell anemia and prior to being provided with a prescription for dilaudid, provided authentic appearing documentation to Jones to corroborate this. Further, CW1 had been referred by another physician whose records indicated the same." (Def. Mem. at 10.) The Memorandum also states: "[U]pon information and belief, Marko never posed any questions regarding sickle-cell anemia to these physicians and pharmacists, specifically regarding the pain associated with the disease, how it is genetically passed throughout families, and the amount of pills that Marko's experts feel should be prescribed to combat this severe pain." (Def. Mem. at 14.) The Memorandum also refers to tape recordings apparently produced by the Government, but no tapes or transcripts are produced and the statements in the Memorandum concerning the content of the tapes are unsworn.
The lone affidavit, which does not authenticate the specific statements in the Memorandum and which does not attest to personal knowledge bearing on the truthfulness of the assertions in the Affidavit, fails to meet the standard of Franks. See United States v. Gillette, 383 F.2d 843, 848 (2d Cir. 1967);United States v. $1.5 Million Letter of Credit, No. 90 Civ. 4450, 1992 WL 204357, at *7 (S.D.N.Y. Aug. 7, 1992); United States v. Gotti, 771 F. Supp. 535, 539 (S.D.N.Y. 1991); United States v. Martinez, 634 F. Supp. 1144, 1147 (S.D.N.Y. 1986). At the argument of the motions, the Court pointed out the deficiencies in the showing the defendants had made in support of the motion to suppress, and specifically gave the defendants the opportunity to submit affidavits from persons with personal knowledge, but defense counsel specifically declined the Court's invitation to submit such an evidentiary basis for the motion. Therefore, the defendants have not made a substantial preliminary showing that Marko deliberately misled the court, recklessly disregarded the truth, or created material omissions in submitting the Affidavit and the motion for suppression or, in the alternative, for aFranks hearing, is denied.
In addition, even "after setting aside the allegedly misleading statements [and] omissions, `there remains a residue of independent and. lawful information sufficient to support probable cause'" United States v. Levasseur, 816 F.2d 37, 43 (2d Cir. 1987) (quoting United States v. Ferguson, 758 F.2d 843, 849 (2d Cir. 1985). In determining if false or omitted information was necessary to a determination of probable cause a court must disregard the allegedly false statements and omissions and determine whether the remaining portions of the affidavit would support probable cause to issue the warrant. See Canfield, 212 F.3d at 718. "If the corrected affidavit supports probable cause, the inaccuracies were not material to the probable cause determination and suppression is inappropriate." Id. Probable cause determinations involve an evaluation of the totality of the circumstances. See Illinois v. Gates, 462 U.S. 213, 241 (1983).
Because the allegedly false statements and omissions are not material to the probable cause determination, the Court does not need to decide whether they are actually erroneous or whether they were deliberately or recklessly false or misleading.
The defendants, in their Memorandum of Law in Support of the Motion to Suppress, appear to argue that, in correcting the Affidavit under Canfield, the Court should delete paragraphs 12- 15 and 17 in their entirety. This misstates Canfield. In correcting the Affidavit to determine whether probable cause still existed, the Court of Appeals for the Second Circuit, inCanfield, deleted from the affidavit the alleged misleading information and took into consideration the alleged omissions.Canfield, 212 F.3d at 718-19. Thus, in determining whether false or omitted information was necessary to a determination of probable cause, allegedly false statements are deleted from the Marko Affidavit and the substance of alleged omissions are included with the remaining information in the Marko Affidavit. Thus, deleting and not considering the totality of paragraphs 12- 15 and 17 is inappropriate to the extent that the information is not allegedly false. The number of actual alleged misstatements is very small. The major thrust of the challenge to the Affidavit is the failure to include information such as the alleged fact that persons to whom Dr. Jones gave Dilaudid prescriptions suffered from sickle-cell anemia.
While the defendants argue that including details about his practice and sickle-cell anemia in the Affidavit would provide an innocent explanation for Jones's conduct, "the fact that an innocent explanation may be consistent with the facts alleged, however, does not negate probable cause." United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985) ; see also United States v. Cancelmo, 64 F.3d 804, 808 (2d Cir. 1995); United States v. Feola, 651 F. Supp. 1068, 1117 (S.D.N.Y. 1987). Additionally, although the recorded conversations between Jones and the confidential informants an undercover agent may have had an innocent meaning, Marko's interpretations of the recorded conversations were reasonable and Magistrate Judge Eaton could rely on them in finding probable cause. See Cancelmo, 64 F.3d at 808; see also United States v. Stokes, 96 Cr. 41, 1996 WL 727400, at *4 (S.D.N.Y. Dec. 18 1996) . Thus, even after correcting the Affidavit to account for the alleged inaccuracies, there is still a sufficient basis to find probable cause.
Moreover, the Affidavit contains numerous additional allegations describing the defendants' activities that adequately establish probable cause. The Affidavit contains detailed information establishing the unusually large amount of Dilaudid purchased by the Brodwin-Sosa Pharmacy during the alleged conspiracy and the large number of Dilaudid prescriptions Dr. Jones filled by the Brodwin-Sosa Pharmacy. (Marko Aff. ¶ 16.) The Affidavit specifically relies on records that indicate that the number of pills prescribed exceeded any medically acceptable amount and that the frequency with which prescriptions were written and dispensed was dramatic. (Marko Aff. ¶¶ 17, 18.) The fact that there is a time lag between the prescription records and the date the warrant was sought does not affect probable cause where the there is a major investigation into ongoing, long-term criminal activity. See, e.g., 758 F.2d at 838; Feola, 651 F. Supp. at 1116. In addition, Marko asserts that based on her experience, the geographical relationship amongst Jones, Brodwin and Sosa, and and the patients was unusual, the fact that nearly all of Dilaudid customers at the Brodwin-Sosa Pharmacy paid in cash was unusual, and the overall volume of Dilaudid at issue along with the large number of patients was consistent with a diversion scheme. (Marko Aff. ¶¶ 17, 19, 21.) "[A]n agent's expert opinion is an important factor to be considered by the judge in reviewing a warrant application." Fama, 758 F.2d at 838;see also Saghezi v. Reno, No. 94 Civ. 8291, 1996 WL 524338, at *15 (S.D.N.Y. Sept. 16, 1996) . Here, Marko has over twelve years experience as a diversion investigator with the Drug Enforcement Administration. Thus, after disregarding the allegedly false statements and taking into account the information the defendants claim was improperly omitted, the totality of the circumstances still support a finding of probable cause for the issuance of the arrest and search warrants and the defendants' motion to suppress is denied.
Conclusion
For the reasons explained above, the defendants' motions are denied.
SO ORDERED.