United States v. Vinieris

595 F. Supp. 88, 1984 U.S. Dist. LEXIS 15496
CourtDistrict Court, S.D. New York
DecidedJune 27, 1984
DocketNo. 83 Cr. 0566 (KTD)
StatusPublished
Cited by2 cases

This text of 595 F. Supp. 88 (United States v. Vinieris) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Vinieris, 595 F. Supp. 88, 1984 U.S. Dist. LEXIS 15496 (S.D.N.Y. 1984).

Opinion

MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, District Judge:

Defendant Gerasimos Vinieris has brought this omnibus motion seeking several forms of relief. For the reasons that follow, defendant’s motion is granted in part and denied in part.

The twenty-four count indictment charges Vinieris with perjury before a grand jury investigating the $11 million theft at the Sentry Armored Courier Corporation (“Sentry”) in the Bronx, New York (Counts One to Twenty-one), obstruction of justice (Count Twenty-two), and transportation in interstate commerce of over $5,000 stolen from Sentry (Counts Twenty-three and Twenty-four).

On July 6, 1983, the defendant was subpoenaed before the grand jury, but refused to testify on Fifth Amendment grounds. On July 13, 1983, Judge Abraham D. Sofaer entered an order pursuant to 18 U.S.C. § 6002, granting defendant use immunity before the grand jury. Count One is based on statements made by the defendant before the immunity order became effective. Counts Two through Twenty-one are all based on allegedly false declarations made by the defendant after the order became effective. Defendant moves for discovery, dismissal of the indictment, and suppression of various evidence. I will turn to each form of requested relief seriatum. 1. Discovery

Defendant has moved for an extensive array of discovery, using boiler-plate language not necessarily relevant to the instant indictment. The government apparently has provided some discovery items including grand jury transcripts of defendant’s and his attorney’s grand jury appearances. In response to defendant’s request, the government contends that the motion should be denied in full because of defendant’s counsel’s failure to comply with “local Rule 3(e), and to confer in order to resolve any discovery issues by agreement without the intervention of the Court.” Memorandum of Law at 4. Southern District Local Criminal Rule 3 provides that attorneys must attempt to resolve discovery disputes before seeking intervention of the court. Defense counsel appears to have made some effort at discovery dispute resolution, which is mentioned in his affidavit. Therefore, the government is directed to fully [91]*91comply with its discovery disclosure duties under Fed.R.Crim.Proc. 16 by disclosing any statements of the defendant, his prior record, permitting inspection of any documents or tangible objects which “are material to the preparation of his defense or intended for use by the government as evidence achieved at the trial,” and permitting inspection of reports of examinations and tests.

2. Bill of Particulars

Defendant has requested a bill of particulars with respect to the charges against him. Under the circumstances, it is apparent that the indictment and accompanying papers submitted on this motion sufficiently particularize the charges against Mr. Vinieris to permit him to develop a defense and to ascertain the charges against him. Accordingly, defendant’s motion for a bill of particulars is denied.

3. Production of Brady Material

In addition to his requests for discovery and a bill of particulars, defendant also seeks the production of all Brady material in the government’s possession. The government’s obligation to search for Brady material and to turn it over at the appropriate time is the sole responsibility of the prosecutor. Whether the government fulfills this responsibility is a matter that I can determine only after trial. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

4. Disclosure of Informant’s Identity

Under certain circumstances the identity of a government witness may be disclosed to the defense prior to trial. See Roviaro v. United States, 353 U.S. 53, 60-62, 77 S.Ct. 623, 627-628, 1 L.Ed.2d 639 (1957); United States v. Cannone, 528 F.2d 296, 300-01 (2d Cir.1975). The determination of whether such disclosure should be made depends upon the careful “balancing of the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders the nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informers’ testimony, and all other relevant factors.” Roviaro, 353 U.S. at 62, 77 S.Ct. at 629. Defendant, however, has made virtually no showing that disclosure is appropriate in this case. As was stated in Can-none, “the defense [has] made only an abstract, conclusory claim that such disclosure was necessary to its proper preparation for trial.” 528 F.2d at 301-02. In the absence of a more specific showing, defendant’s request must be denied.

5. Dismissal of the Indictment for Violation of the Immunity Order

Defendant contends that because the same grand jury that heard his immunized testimony also brought this indictment, the indictment must be dismissed. In support he cites United States v. Hinton, 543 F.2d 1002 (2d Cir.1976), in which the Second Circuit stated “[w]e believe that as a matter of fundamental fairness, a government practice of using the same grand jury that heard the immunized testimony of a witness to indict him after he testifies, charging him with criminal participation in the matters being studied by the grand jury, cannot be countenanced.” 543 F.2d at 1010; see also 18 U.S.C. § 6002.

Certain counts of the original indictment appear to run afoul of the Hinton rule. In any case, the government has consented to the dismissal without prejudice of Counts One, and Twenty-two through Twenty-four. The remaining counts in the indictment, Counts Two through Twenty-one, charge the defendant with penury arising out of his immunized grand jury testimony. The same grand jury which heard the defendant’s immunized testimony may properly indict him for perjurious statements made during his immunized appearances. See United States v. Anzalone, 555 F.2d 317, 319-20 (2d Cir.1977) (“false testimony given under use immunity may nevertheless become a predicate for a perjury or false declaration charge [returned by the investí[92]*92gating grand jury]”), cert. denied, 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 760 (1977). Accordingly, except for the counts that the government has consented to dismiss, defendant’s motion to dismiss the indictment for violation of the Hinton rule is denied.

6. Count Severance

Defendant’s motion sought severance of all counts not arising out of his immunized testimony. Because the government has consented to the dismissal of these counts, this aspect of defendant’s motion is moot.

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Bluebook (online)
595 F. Supp. 88, 1984 U.S. Dist. LEXIS 15496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-vinieris-nysd-1984.