271 F. Supp. 197 | S.D.N.Y. | 1967
In May 1967 the Grand Jury handed down an indictment in six counts, five of which charge that on various dates between October 18, 1966, and March 29, 1967, the defendant Mastrobuono unlawfully sold and possessed LSD in violation of Title 21 U.S.C. §§ 321 (v) (3), 331(q) (2), 360(a) (b) and 333(a), and one of which (Count 5) charges that on March 29, 1967, the defendant Tabachnikov unlawfully possessed 1,000 capsules of LSD. Tabachnikov now moves for (1) discovery and inspection, pursuant to Rule 16, F.R.Crim.P., of all statements made by him prior to and after his arrest, and of the physical evidence against him; (2) a bill of particulars pursuant to Rule 7(f), F.R.Crim.P.; (3) a severance pursuant to Rule 14, F.R.Crim.P.; and (4) enlargement of his bail limits.
The Government has consented to the defendant’s inspection and copying of all statements made by him after his arrest and to allow a qualified chemist to make an analysis of available samples of the LSD involved. Except to the extent so consented to, the motion for discovery and inspection is denied in the absence of a showing of any reasons therefor.
The motion for particulars, except as consented to, is likewise denied. The Government has consented to furnish the essential particulars requested with respect to the charges against the moving defendant, i. e., the time when and place where it is alleged that Tabachnikov possessed the LSD referred to in the one count in which he is named. This appears sufficient to enable him to prepare for trial, avoid surprise, and prevent a second prosecution of the same offense, which is the objective of a bill of particulars. United States v. Lebron, 222 F.2d 531 (2d Cir.), cert. denied, 350 U.S. 876, 76 S.Ct. 121, 100 L.Ed. 774 (1955); United States v. Klein, 124 F.Supp. 476 (S.D.N.Y.1954), affd., 247 F.2d 908 (2d Cir. 1957), cert. denied, 355 U.S. 924, 78 S.Ct. 365, 2 L.Ed.2d 354 (1958). The requests for the “respect” in which Tabachnikov is alleged to have possessed the drug, and whether he had it “on his person, owned it and/or controlled it” seek evidentiary details, which is not the function of such a bill. United States v. Lebron, supra; United States v. Kahaner, 203 F.Supp. 78 (S.D.N.Y.1962); United States v. Rosenberg, 10 F.R.D. 521 (S.D.N.Y.1950), affd., 195 F.2d 583 (2d Cir.), cert. denied, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 687 (1952).
Defendant Tabachnikov’s motion for a severance is denied for failure to show that he will be prejudiced by a joint trial of the charges against both defendants. Although Tabachnikov claims that since he is named in only one of the six counts he would be prejudiced
Upon oral argument Tabachnikov’s application for enlargement of bail limits to permit him to attend the summer term of Antioch College, Yellow Springs, Ohio, from July 7, 1967, to September 18, 1967, as a registered student was granted on condition that he produce satisfactory proof of admission by that college for enrollment in its summer, 1967 term and furnish the address where he will be residing in Yellow Springs ’during his stay there, subject to his appearance for trial in this Court on 24 hours’ notice to his counsel, all of which is to be the subject of an order to be submitted.
So ordered.