U.S. v. Martin, 86-1663

• Decision Date: 14 July 1987
• Docket Number: No. 86-1663,86-1663
• Citation: 822 F.2d 1089
• Parties: Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Donald A. MARTIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1089

822 F.2d 1089

Unpublished Disposition

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Donald A. MARTIN, Defendant-Appellant.

No. 86-1663

United States Court of Appeals, Sixth Circuit.

July 14, 1987.

Before KENNEDY and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.

PER CURIAM.

Donald A. Martin, defendant-appellant, appeals from his convictions for violating 18 U.S.C. Secs. 666, 1344, 2314 and 2315, as well as 18 U.S.C. Secs. 2 and 371. Defendant was charged with conspiring to use checks, stolen from an institution which receives federal funds, to purchase and transport interstate oriental rugs, and depositing another forged stolen check into a bank account. His sole argument on appeal is that the United States magistrate abused her discretion in denying his motion for a bill of particulars. For the following reasons, we affirm defendant's convictions.

I.

Defendant Martin was indicted on October 17, 1985, along with three coconspirators--William Hawkins, Sheila Kelly and Joyce Swan. The indictment alleged that Martin was a participant in two conspiracies, one taking place from approximately September 1984, to November 5, 1984, and the second occurring between October 10, 1984, and November 1, 1984. Further, one of the alleged overt acts for each conspiracy was that 'on or about October 10, 1984,' defendant Martin had stolen four blank checks from the Highland Park, Michigan School District. These checks were then used to purchase investment quality oriental rugs and to open a bank account.

Prior to trial, defendant Martin filed a motion for a bill of particulars pursuant to Fed. R. Crim. P. 7(f). The defendant requested, inter alia, the specific places, times and dates for each alleged overt act in the conspiracies, as well as the statements and conduct attributed to him in connection with the conspiracies. In an affidavit attached to this motion, Martin's counsel asserted that it was necessary to Martin's defense to know the exact dates involved since Martin was hospitalized from October 4, to October 12, 1984.

A hearing on this motion was conducted before a United States magistrate on February 4, 1986. At this hearing, defense counsel expressed concern about the 'on or about' language in the indictment, particularly with respect to the October 10, 1984 date. He noted that the Government would not be limited to that specific date unless a bill of particulars was granted, and he asserted that the Government should be limited to that date to avoid surprise at trial and to enable the development of a defense. The Government countered, stating that it did not have a more precise date as to when the checks were stolen and that it had given defendant all the information available to it. The magistrate thereafter denied defendant's motion, noting that Martin had been afforded full discovery by virtue of the Government's open file policy and that the use of the phrase 'on or about' in an indictment was common practice in the district.

On March 26, 1986, immediately prior to trial, the district court inquired about Martin's motion for a bill of particulars. Defense counsel responded that the motion had been denied due to the Government's open file policy and the Government's inability to be more precise with the dates.

At trial, an unindicted coconspirator, Walter Tyler, gave damaging testimony against defendant Martin, placing Martin at a series of six meetings between October 26, and November 1, 1984, where a good portion of the conspiratorial planning took place. This series of meetings was referred to by the Government in its opening argument. It was also documented that defendant Martin had, in fact, been hospitalized between October 4, and October 12, 1984. Further, Martin testified in his own behalf that he had not known codefendant Hawkins, codefendant Sheila Kelly, or Walter Tyler prior to trial, and he denied stealing the checks or participating in conspiratorial meetings or related activities. Accordingly, Martin put forth a partial alibi defense as well as a denial defense.

Martin was convicted of seven counts in the nine count indictment, including both of the conspiracy changes. He was sentenced to six two-year terms, to be served concurrently, and was ordered to pay a special assessment of $50 on each count. Defendant filed this timely appeal.

II.

Defendant's contention is that prior to trial he was not made aware of the fact that there had been a series of conversations during the last week in October and the first week in November--that he had only been informed of two alleged meetings. He claims unfair surprise and an inability to prepare his defense as a result. Defendant further asserts that the magistrate abused her discretion in denying his motion for a bill of particulars because the surprise at trial could have been avoided if the magistrate had granted his reasonable, prudent request for the specific dates, locations and content of these alleged meetings. He does not renew his challenge of the use of the phrase 'on or about' in the indictment or the Government's failure to provide a specific date on which the checks were stolen. We note in addition that defendant does not challenge the sufficiency of the indictment, nor does he claim that the Government violated its open file policy.

The granting of a motion for a bill of particulars filed pursuant to Rule 7(f), Fed. R. Crim. P., ¹ is within the sound discretion of the trial court and is reviewable only under an abuse of discretion standard. Wong Tai v. United States, 273 U.S. 77, 82 (1927); United States v. Kendall, 665 F.2d 126, 134 (6th Cir. 1981), cert. denied, 455 U.S. 1021 (1982). The purposes of a bill of particulars, which should be considered by the court in ruling upon such a motion, are: (1) to ensure that a defendant understands the nature of the charges against him so that he can adequately prepare for trial; (2) to avoid or minimize the danger of unfair surprise at trial; and (3) to enable the defendant to plead double jeopardy if he is later charged with the same defense 'when the indictment itself is too vague and indefinite for such purposes.' United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976); United States v. Haskins, 345 F.2d 111, 114 (6th Cir. 1965). See also United States v. Giese, 597 F.2d 1170, 1180 (9th Cir.), cert. denied, 444 U.S. 979 (1979); United States v. Addonizio, 451 F.2d 49, 64 (3d Cir. 1971), cert. denied, 405 U.S. 936 (1972). Once a bill of particulars is filed, it confines the Government's evidence to the particulars furnished, and therefore restricts the Government's proof. Haskins, 345 F.2d at 114. The courts, in ruling upon a motion for a bill of particulars, should accordingly balance the defendant's need for the information against the effect of narrowing the Government's scope of proof.

This Circuit has established that the test for determining whether a bill of particulars should issue is "whether the indictment sets forth the elements of the offense charged and sufficiently apprises the...