United States v. Ferguson
| Decision Date | 29 January 2018 |
| Docket Number | 2:16-CR-00103-JRG |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. VINCENT LEE FERGUSON, ET AL., Defendants. |
| Court | U.S. District Court — Eastern District of Tennessee |
All pretrial motions have been referred to the undersigned pursuant to 28 U.S.C. 636(b) for disposition or report and recommendation regarding disposition by the District Court as appropriate. Defendant, Matthew Martland, has filed a Motion for Bill of Particulars [Doc. 85]. The other Defendants moved to join in this motion, [Docs. 93-95, 97, 100], and such motions were granted. [Docs. 96, 101]. The Government filed a response [Doc. 108]; Martland replied [Doc. 121]. This motion is now ripe for resolution.
Defendants are former employees of Wellco Enterprises, Inc., a now defunct manufacturer and supplier of military and rugged footwear that sold such footwear to the Government and the public [Docs. 36, 81]. The Superseding Indictment alleges Defendants conspired to commit and committed wire fraud, defrauded the United States, and smuggled goods into the United States by importing military-style boots that were made in China. It also alleges deceptive marketing and sale of the boots as "Made in the USA" and compliant with the Trade Agreements Act of 1979, 19 U.S.C. § 2501 et seq. and the Berry Amendment, 10 U.S.C. § 2533a. [Id.].
Pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure, Martland moves the Court to order the Government to provide a bill of particulars "particularizing the allegationsagainst" Martland. He asks the Government to identify the "specific conduct forming the basis of the charges against him - to include the dates and locations of such conduct" [Doc. 86, p. 12]. He also seeks specificity as to the conduct supporting the charges against the co-Defendants because the Superseding Indictment alleges he conspired with and aided and abetted them.
In support, Martland first argues the Government is obligated to provide particularization. Next, he argues the Superseding Indictment is not sufficiently particular because it relies upon domestic preference and labeling laws that are enforced on a case by case basis. He contends that such statues are vague, are affected by a range of regulations and case law, and that the Superseding Indictment makes no reference to such regulations. He summarizes that the "allegations of violations of these statutes, coupled with conclusory recitations of the essential elements of the charged offenses are not sufficiently clear and definite to inform" him of the charges.
Lastly, Martland argues that a bill of particulars is necessary to allow certain pretrial or trial preparation, specifically (1) preparation "for the actual charges the government will attempt to prove" and, (2) filing of motions to "prevent introduction of prejudicial assertions" he believes are irrelevant to the charges or are otherwise inadmissible [Doc. 86, p. 10]. He elaborates that a bill of particulars will allow him to "sift more efficiently through the evidence," enable counsel to "more intelligently interview potential witnesses" and prepare jury instructions, and generally avoid waste of judicial resources [Id. at 11].
The Government objects, arguing that the Superseding Indictment is detailed and that the Government has provided extensive discovery in this case.1 The Government argues Defendants' motion is a generic and vague request for information. It also asserts that Defendants seek a bill of particulars for improper purposes, i.e. to re-produce the voluminous discovery and improperlycompel the Government to identify its primary evidence, case theories and witnesses.
Martland replies by reiterating many grounds cited in the original motion and supporting brief. He also adds that the Superseding Indictment is insufficient without an allegation of an overt act by Martland.
Rule 7(c)(1) of the Federal Rules of Criminal Procedure provides that an "indictment or information must be a plain, concise and definite written statement of the essential facts constituting the offense charged." The Supreme Court has held that an indictment is sufficient "if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974); United States v. Landham, 251 F.3d 1072, 1079 (6th Cir. 2001). Hamling also requires that the statutory language "be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offenses, coming under the general description, with which he is charged." 418 U.S. at 117-18 (quoting United States v. Hess, 124 U.S. 465, 8 S.Ct. 564, 31 L.Ed. 508 (1888).
Rule 7(f) of the Federal Rules of Criminal Procedure states:
The Court may direct the government to file a bill of particulars. The defendant may move for a bill of particulars before or within 14 days after arraignment or at a later time if the court permits. The government may amend a bill of particulars subject to such conditions as justice requires.
The purposes of a bill of particulars are to inform the defendant of the nature of the charge against him with sufficient precision to enable him to prepare for trial, to avoid or minimize the danger of surprise at the time of trial, and to enable him to plead his acquittal or conviction in bar of another prosecution for the same offense when the indictment itself is too vague for such purposes. United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976). A bill is meant to be used a tool to minimizesurprise and assist defendant in obtaining the information needed to prepare a defense and to preclude a second prosecution for the same crimes. It is not meant as a tool for the defense to obtain detailed disclosure of all evidence held by the government before trial. United States v. Salisbury, 983 F.2d 1369, 1375 (6th Cir. 1993).
While the amount of detail in an indictment can serve as a basis for denying a motion for a bill of particulars, Salisbury, 983 F.2d at 1375, a defendant is not entitled to a bill of particulars with respect to information available through other sources. United States v. Paulino, 935 F.2d 739, 750 (6th Cir. 1991) superseded on other grounds by stat.; see also United States v. Caseslorente, 220 F.3d 727 (6th Cir. 2000) (on sentencing issue). With regard to conspiracies charged in an indictment for which an overt act must be proven, not all of the overt acts in furtherance of the alleged conspiracy need to be alleged. United States v. Henson, 848 F.2d 1374, 1385 (6th Cir. 1988). The decision to order a bill of particulars falls within the sound discretion of the trial court. Salisbury, 983 F.2d at 1375.
Defendants first argue that the Government is obligated to particularize the charges. Defendants cite a number of cases, many from outside the Sixth Circuit, in support of this position. The discussion and cited law provides an overview of the law applicable to bills of particulars in this and other Circuits, but it does not mandate bills of particulars. Further, Rule 7 is definitive - the parties can request a bill of particulars and a court may direct the Government to file one. A request does not create an obligation.
Defendants next assert that the Superseding Indictment is insufficiently particular because it relies upon domestic preference and labeling laws that are enforced case by case. Further, Defendants assert the statues are vague and impacted by various regulations and case law notreferenced in the Superseding Indictment. This is effectively a truncated version of the arguments advanced in the Motions to Dismiss the Superseding Indictment [Docs. 72, 76, 79, & 84].
The Superseding Indictment does not charge the Defendants with violations of such laws; it charges them with conspiracy to commit wire fraud under 18 U.S.C. § 1349, multiple counts of wire fraud under 18 U.S.C. § 1343, major fraud against the United States under 18 U.S.C. § 1031, and smuggling goods into the United States under 18 § U.S.C. 545. The elements of the enumerated charges do not require proof of the violation of other statutes or regulations, including...
To continue reading
Request your trial