Opinion
05 Cr. 443 (NRB).
July 25, 2006
MEMORANDUM AND ORDER
On June 22, 2006, defendant Esther McLean ("McLean") filed a motion to compel discovery and a bill of particulars in advance of sentencing. Specifically, McLean requests that the Government produce any prior statements made by employees of Kensington Financial and any material "that is inconsistent or tends to disprove the position that the government has or will be taking in relation to the determination of upward adjustments to the base offense level found in the Sentencing Guidelines or factors to be considered under 18 U.S.C. 3553[.]" Declaration of Sam Schmidt, Esq. filed June 22, 2006. McLean also requests a bill of particulars "setting forth the basis of any aggravating adjustments that the government will seek [at sentencing] including, but not limited to role in the offense, obstruction of justice, loss and number of victims." Id.
Although McLean relies on Fed.R.Crim.P. 16 and Brady v. Maryland, 373 U.S. 83 (1963), neither supports her motion to compel discovery and case law to support the motion is conspicuously absent. McLean essentially seeks access to the Government's investigatory file. Such access is not available. Moreover, the Government has represented that it understands its obligations under Brady and is currently unaware of any Brady material regarding McLean. See Gov't Ltr. dated June 29, 2006. This Court is satisfied with the Government's good-faith representation and denies the motion to compel. See United States v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001); United States v. Perez, 940 F. Supp. 540, 543 (S.D.N.Y. 1996).
McLean's motion for a bill of particulars is also denied. Such motions are only granted in advance of trial when an indictment fails to provide sufficient detail about the charges against a defendant. See, e.g., United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988) (recognizing that function of bill of particulars is to allow defendants "to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy"). McLean has already been convicted at trial, and she is not entitled to a bill of particulars in advance of sentencing.
IT IS SO ORDERED.