The opinion of the court was delivered by: HAROLD H. GREENE
Defendant, NYNEX Corporation, has been indicted for criminal contempt under 18 U.S.C. § 401(3). The charge is that NYNEX willfully violated section II(D)(1) of the decree entered by this Court in United States v. Western Electric Co., 552 F. Supp. 131 (D.D.C. 1982), by providing information services through Telco Research from April 11, 1986 until February 1987. The government alleges that Telco Research, acquired by NYNEX on April 11, 1986, continued to provide such services to MCI Communications during this ten-month period pursuant to several specific agreements.
NYNEX has moved for a bill of particulars asserting that the government has alleged only vaguely two of the three elements it must prove: (1) willfulness, and (2) the actions by NYNEX that allegedly violate the decree. Because the defendant has been adequately informed of the charge against it, the motion will be denied.
By an informal exchange of letters, the government gave defendant a list of twenty employees whose conduct and intent it may impute to the defendant. The letter also gave a description of what is included in the term "computer facility" in the indictment and what is meant by the words "pursuant to" the three agreements specified in the indictment. The indictment itself also informs NYNEX that it is charged with providing an information service through its Telco Research facility to MCI during a specific ten-month period in violation of the decree.
A bill of particulars may be granted or denied at the discretion of the trial court. See United States v. Butler, 262 App. D.C. 129, 822 F.2d 1191, 1194 (D.C. Cir. 1987). A bill of particulars is appropriate in order adequately to inform the defendant of the charges against him, to enable it to prepare a defense, and to avoid unfair surprise at trial. See United States v. Madeoy, 652 F. Supp. 371, 374 (D.D.C. 1987) (citing United States v. Kendall, 665 F.2d 126 (7th Cir. 1982)); United States v. Pollack, 175 App. D.C. 227, 534 F.2d 964, 970 (D.C. Cir. 1976).
The charge in the instant case does not involve a complex, longstanding conspiracy; it is a relatively simple charge of violating the decree over a defined period of time. The details requested by NYNEX go basically to matters of evidence and to the government's legal theory, and they therefore need not be set out by way of a bill of particulars. The motion will be denied.
Defendant has moved to dismiss the indictment based on the failure of the government to present exculpatory evidence to the grand jury. In connection with this claim, NYNEX charges that the government failed to bring before the grand jury documents which NYNEX had submitted to the government with the request that they be so presented.
NYNEX's motion amounts to an argument that, unless the investigation by the grand jury proceeds as a mini-trial at which the defendant is allowed to present its defense, the indictment is flawed and must be dismissed. This argument flies directly in the face of the Supreme Court's teaching in Costello v. United States, 350 U.S. 359, 363, 100 L. Ed. 397, 76 S. Ct. 406, 48 A.F.T.R. (P-H) 689 (1956), that the defendant has no right to "a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury." See also, Bank of Nova Scotia v. United States, 487 U.S. 250, 263, 101 L. Ed. 2d 228, 108 S. Ct. 2369, 62 A.F.T.R.2d (P-H) 5738 (1988). Indeed, it is the general rule in the federal jurisdiction that the prosecutor has no obligation to present exculpatory evidence to the grand jury. See, e.g., United States v. Poindexter, 725 F. Supp. 13, 39 (D.D.C. 1989) (citing United States v. Ismaili, 828 F.2d 153, 165 n.13 (3d Cir. 1987)).
There is no merit to the motion and it will be denied.
NYNEX has moved for the production of materials under various legal theories that the government accurately characterizes as overbroad and burdensome even if this were a civil case. Memorandum of the United States in Opposition at 1.
For example, under Rule 16(a)(1)(C), Fed. R. Crim. P., and pursuant to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), NYNEX made eighty-five separate requests with a total of 293 parts and subparts, and its legal memoranda in support of this motion alone number seventy pages. In considering the specific demands, it is also relevant that, according to the government's uncontradicted statements, it has:
provided NYNEX with over 170,000 pages of documents that may be material to the preparation of its defense, including: all documents gathered by the government during the pre-indictment investigation from any source, including third parties; all 18 transcript volumes of depositions of officers and employees of NYNEX companies taken by the government under the MFJ's visitorial provisions during the investigation; all 31 transcript volumes of depositions of NYNEX officers and employees taken during discovery in Rafferty v. NYNEX Corp., Civ. Action No. 87-1521 . . .; and over 6,500 pages of written statements of NYNEX representatives obtained outside the investigation leading to the indictment. NYNEX has also obtained several thousand additional documents in response to a Freedom of Information Act request filed by NYNEX's counsel, encompassing the subject matter of most of NYNEX's current demands for MFJ material.
Memorandum of the United States in Opposition at 2. The bulk alone requested by NYNEX betrays a serious misunderstanding of the criminal process.
The Court will now briefly discuss specific issues raised by the motion.
1. NYNEX requests access to the grand jury testimony of all those of its current or former employees who may have testified before that body. It is the government's position that it would presently
make available such transcripts only if NYNEX affirmed that the particular individuals are able legally to bind that corporation. The Court concludes that this position is well taken for a number of reasons.
In the first place, the Rule itself provides that the testimony of an individual is discoverable only if that individual was "so situated . . . as to have been able legally to bind the defendant . . . ." Rule 16(a)(1)(A). Moreover, since NYNEX explicitly claims that the statements of the employees in question cannot be imputed to it, it would be inconsistent to require the government to make the statements available on the theory that these individuals stood in the shoes of NYNEX. Finally, to the extent that there is precedent on this issue, it supports the government's position. See, e.g., United States v. Twentieth Century-Fox Film Corp., 700 F. Supp. 1242, 1244 (S.D.N.Y. 1988), aff'd in part, 882 F.2d 656 (2d Cir. 1989); see also, American Bar Association, Handbook ...