U.S. v. Ogman
Co-conspirators' statements are not discoverable in the 2nd Circuit. In April 2012, a grand jury charged the defendants with narcotics offenses. The defendants argued the indictment was defective, because it failed to provide notice of the means by which the alleged conspiracy operated, specific acts taken in furtherance of the alleged conspiracy and the roles of alleged co-conspirators. In U.S. v. Bermudez, a 1975 decision, the 2nd Circuit wrote that, even if the indictment omits a specific overt act in furtherance of the conspiracy, an indictment is sufficient if the indictment alleges a conspiracy to distribute drugs, the time when the conspiracy operated and the statute allegedly violated. The subject indictment was sufficiently specific. The defendants also claimed they were entitled to a bill of particulars describing the allegations of the conspiracy, the date on which each co-conspirator participated and each defendant's overt acts. A bill of particulars is required only if the charges in the indictment are so general that they do not advise the defendant of the specific acts of which he is accused, pursuant to U.S. v. Walsh, a 1999 decision of the 2nd Circuit. The government provided the defendants with enough evidence to prepare a defense, because it furnished wiretap affidavits and orders, tapes of telephone calls that were intercepted and FBI reports. A bill of particulars is not a discovery tool. The court denied the defendants' request that the government provide a bill of particulars. The defendants also requested that the government disclose the identities and substances of statements of co-conspirators that the government plans to present at trial. Co-conspirators' statements are not discoverable in the 2nd Circuit, pursuant to U.S. v. Percevault, a 1974 decision. The District Court denied the motion. The defendants requested the disclosure of the identities of three confidential informants who were discussed in a special agent's affidavit. The government offered to disclose the identities 10 days prior to the start of evidence. The defendants failed to establish that they will be denied their right to a fair trial, unless the identities are disclosed sooner, and the court denied the motion.