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A defendant cannot successfully attack the denial of a bill of particulars unless he demonstrates both that the trial court abused its discretion in denying relief and that surprise or other prejudice resulted from his having been deprived of the requested information at the pre-trial stage.
Defendants Kostrick, Romano, Perrino and twenty-five others were charged in a one hundred and thirteen count indictment with various offenses involving a large-scale conspiracy to distribute cocaine. All those indicted, with the exception of Kostrick and Romano, eventually pleaded guilty to cocaine-related offenses. Defendant Perrino pleaded guilty to one counts of cocaine distribution. In the jury trial of the defendants, the government called twenty-two witnesses, twenty of whom testified that they observed the defendants participate in the purchase or sale of cocaine. In their defense, Kostrick and Romano focused exclusively on attempting to undermine the credibility of the government's witnesses. At the conclusion of the two-week trial, the jury returned guilty verdicts against both defendants. Kostrick was found guilty of one count of conspiracy to distribute cocaine, one count of a continuing criminal enterprise to distribute cocaine, seven counts of possession of cocaine with the intent to distribute, and six counts of tax-related offenses. Romano was found guilty of one count of conspiracy to distribute cocaine, one count of possession of cocaine with the intent to distribute and two counts of tax offenses. Following sentencing, defendants appealed, raising the following issues: (1) whether the district court erred by denying a request for a bill of particulars specifying the identities of the "controlled individuals" in the alleged continuing criminal enterprise; (2) whether the district court improperly admitted into evidence a government witness's plea agreement which contained the witness's promise to take a polygraph examination; (3) whether the district court improperly excluded cross-examination of a government witness concerning criminal conduct for which the witness had not been convicted; (4) whether Romano was correctly sentenced on his conspiracy conviction under the new sentencing guidelines despite his claim that he withdrew from the conspiracy before the effective date of the guidelines; (5) whether the district court violated Federal Rule of Criminal Procedure 32(c)(3)(D) by neither resolving nor expressly disavowing reliance upon the prosecutor's disputed version of the offense contained in Perrino's presentence report; and (6) if the district court did err in sentencing Perrino, whether the court should direct that Perrino's case be assigned to a new judge for resentencing.
Should the defendants’ convictions be upheld?
Yes, with respect to defendants Kostrick and Romano. No, with regard to defendant Perrino.
The court affirmed two of the Kostrick’s and Romano’s convictions and vacated the sentence for Perrino. According to the court, the denial of the bill of particulars did not warrant a reversal because Kostrick failed to show surprise or other prejudice from the denial. The admission of a plea agreement clause regarding a commitment to submit to a polygraph test did not impermissibly bolster that witness' credibility. Moreover, the court held that Romano’s failure to tender any evidence that he had affirmatively renounced the conspiracy entitled the district court to conclude that he chose to remain a culpable member of the conspiracy after the effective date of the sentencing guidelines, and he was correctly sentenced for conspiracy under the new guidelines. Fed. R. Crim. P. 32(c)(3)(D) applied to the allegations made in the government's version of the offense in the presentence report and defendant Perrino’s sentence had to be vacated and remanded to resolve the disputed factual issues.