United States v. Rogers

• Decision Date: 25 September 1985
• Docket Number: Crim. A. No. 84-CR-337.
• Parties: UNITED STATES of America, Plaintiff, v. Gerald L. ROGERS, et al., Defendants.
• Court: U.S. District Court — District of Colorado

617 F. Supp. 1024

UNITED STATES of America, Plaintiff, v. Gerald L. ROGERS, et al., Defendants.

Crim. A. No. 84-CR-337.

United States District Court, D. Colorado.

September 25, 1985.

Richard J. Nolan and Edward P. Timmins, Asst. U.S. Attys., Denver, Colo., for plaintiff.

Jeffery S. Gordon, O'Donnell & Gordon, Los Angeles, Cal., and John Moorhead, Baker & Hostetler, Denver, Colo., for Rogers.

Laurence B. Finegold, Franco, Asia, Bensussen, Coe & Finegold, Seattle, Wash., for Coomber.

Ray Takiff, Coconut Grove, Fla., for Fonseca-Lopez.

Michael Canges, Canges & Volpe, Denver, Colo., for Lepone.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

After eighteen months of investigation and deliberation, a grand jury of the District of Colorado returned a thirty count indictment in this case on November 29, 1984. The indictment charges the named defendants with mail fraud, racketeering, fraudulent interstate transactions, aiding the filing of false or fraudulent tax returns, conspiracy to obstruct justice, subornation of perjury, and perjury. Additionally, the indictment alleges forfeitures under the Comprehensive Forfeiture Act of 1984, Pub.L. No. 98-473, § 302, 98 Stat. 1976, 18 U.S.C. § 1963. On the next day, November 30, 1984, the grand jury filed a "Superceding (sic) Indictment" which contained the identical counts plus an additional paragraph in the forfeiture allegations following Count XI. This paragraph lists the entities which are subject to the forfeiture allegations.

This case is before me on defendants' motions for bills of particulars pursuant to Fed.R.Crim.P. 7(f).¹ Defendants seek 222 enumerated particulars. The total number of requests, however, is approximately 500. Ordinarily, an order dealing with motions for bills of particulars does not merit circulation or publication. Here, however, we are confronted with a new act of congress which in itself constitutes a significant departure from traditional concepts of criminal law. Judges, prosecutors, and defense counsel are all plowing new ground, so to speak. Accordingly, the actions taken here may be worthy of consideration as other such cases are filed. As will become obvious, I have relied heavily on Judge Murphy's excellently written opinion in United States v. Thevis, 474 F.Supp. 117 (N.D.Ga. 1979).

I.

Motions for bills of particulars are addressed to the sound discretion of the trial court. Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 302, 71 L.Ed. 545 (1927); United States v. Gabriel, 715 F.2d 1447, 1449 (10th Cir.1983). Discretion in this area is very broad. A denial of a motion for bill of particulars will not be disturbed on appeal unless an abuse of discretion is shown. United States v. Barbieri, 614 F.2d 715, 719 (10th Cir.1980); see Wyatt v. United States, 388 F.2d 395, 397 (10th Cir.1968).²

At least one result of the wide latitude afforded trial courts in making a Rule 7(f) determination is that few concrete standards have been developed. United States v. Shoher, 555 F.Supp. 346, 349 (S.D.N.Y. 1983); United States v. Lavin, 504 F.Supp. 1356, 1361 (N.D.Ill.1981). Additionally, the available precedent is of limited utility since each case is particularly limited to its own facts. Thevis, 474 F.Supp. 117, 123. In other words, "while there has been widespread recognition of the issues presented by a motion for Bill of Particulars, see 1 Wright, Federal Practice and Procedure § 129 (1969), there has been little general analysis of the manner in which those issues are to be resolved in a particular case." Thevis, 474 F.Supp. 117, 123.

This is not to say, however, that I am totally without guidance in resolving the instant motions. The purpose of a bill of particulars is clear and there are a few well-settled principles to be applied. Also, "certain factors, including the complexity of the offense charged, the clarity of the indictment and the degree of discovery available to the defendant without the bill are relevant to this issue." Lavin, 504 F.Supp. 1356, 1361; see also Shoher, 555 F.Supp. 346, 349; Thevis, 474 F.Supp. 117; United States v. Climatemp, Inc., 482 F.Supp. 376 (N.D.Ill.1979); United States v. Magaw, 425 F.Supp. 636 (E.D.Wis.1977). In order to evaluate properly defendants' specific requests for particulars, it is important to enunciate the principles by which the individual particulars will be analyzed, beginning with the purposes of a bill of particulars.

It is axiomatic that a criminal defendant should be given enough information about the offense charged so that he may prepare adequately for trial. See 1 Wright, Federal Practice and Procedure § 219 at 436. The primary purpose of a bill of particulars is "to more specifically define the charge set forth in the indictment, so that the defendant is apprised of the charges against him with sufficient clarity in order to allow him the opportunity to prepare his defense and to obviate prejudicial surprise to the defendant at trial." Thevis, 474 F.Supp. 117, 123. Additionally, "further clarity may allow the defendant to raise a double jeopardy defense, if applicable." Thevis, 474 F.Supp. 117, 123; see also United States v. Mackey, 551 F.2d 967 (5th Cir.1977).

Given these purposes, it follows that "the test in passing on a motion for a bill of particulars should be whether it is necessary that defendant have the particulars sought in order to prepare his defense and in order that prejudicial surprise will be avoided." 1 Wright, Federal Practice and Procedure § 129 at 436. In applying this test, the federal district court in Thevis adopted the following two-part analysis:

If the particular requested is such that on its face its nondisclosure until trial would result in prejudicial surprise to the defendant or the preclusion of an opportunity for meaningful defense preparation, then the request must be granted. See, United States v. Bearden, 423 F.2d 805, 809 (5th Cir.1970); United States v. Sullivan, 421 F.2d 676 (5th Cir.1970); Hickman v. United States, 406 F.2d 414 (5th Cir.1969); 1 Wright, Federal Practice and Procedure § 129 (1969).

On the other hand, if the requested particular is not such that the Court can determine on its own that nondisclosure until trial would result in prejudicial surprise or the preclusion of an opportunity for meaningful defense preparation, then the Court must balance the competing interests of the defense and the government. Where there is no prima facie case for disclosure, the defendant has the burden of showing by brief, affidavit or otherwise that nondisclosure would lead to prejudicial surprise or the obviation of opportunities for meaningful defense preparation. See, United States v. Rubino, 320 F.Supp. 613 (M.D.Pa.1970).

Thevis, 474 F.Supp. 117, 123-24.

This does not mean, however, that a motion for bill of particulars is a "carte blanche to the defense to investigate the government's case." Thevis, 474 F.Supp. 117, 123; see also United States v. Litman, 547 F.Supp. 645, 654 (W.D.Penn. 1982); United States v. Sherriff, 546 F.2d 604, 606 (5th Cir.1977); United States v. Leonelli, 428 F.Supp. 880, 882 (S.D.N.Y. 1977). It is well-settled that "a bill of particulars may not be used to compel the Government to disclose evidentiary details or to explain the legal theories upon which it intends to rely at trial." Gabriel, 715 F.2d 1447, 1448, quoting United States v. Burgin, 621 F.2d 1352, 1359 (5th Cir.1980); see also Barbieri, 614 F.2d 715, 719; United States v. Raineri, 91 F.R.D. 159, (W.D. Wis.1980); Climatemp, 482 F.Supp. 376, 390 (N.D.Ill.1979); United States v. Hedman, 458 F.Supp. 1384, 1386 (N.D.Ill.1978); United States v. Tedesco, 441 F.Supp. 1336, 1343 (M.D.Pa.1977). Thus, "the probability of prejudicial surprise or inadequate opportunities for defense preparation to the defendant must be balanced against the government's general right to prevent disclosure of its evidence and legal theories." Thevis, 474 F.Supp. 117, 124; see also United States v. Miller, 210 F.Supp. 716 (S.D.Tex.1962).

If the competing interests of the defense and the government are closely balanced, the interests of the defendant in disclosure must prevail:

In 1966, Rule 7(f) was amended to strike the requirement of showing of cause prior to the granting of a motion for Bill of Particulars, and the Advisory Notes to the amendment reflect that change was "designed to encourage a more liberal attitude towards bills of particulars without taking away the discretion which courts must have in dealing with such motions in individual cases." This amendment requires that the defendant be given the benefit of the doubt in gray areas. United States v. Manetti, 323 F.Supp. 683, 697 (D.Del.1971).

Thevis, 474 F.Supp. 117, 124.

II.

With the foregoing principles in mind, I will now address the merits of the motions filed in this case.

First, several of defendants' requests for particulars have already been sufficiently answered in whole or in part in the indictment and through discovery. Additionally, the government has agreed to provide answers to other requests. Accordingly, these requests are denied.³ See Thevis, 474 F.Supp. 117, 124; United States v. Smith, 65 F.R.D. 464, 469 (N.D. Ga.1974); 1 Wright, Federal Practice and Procedure § 129 at 436.

In several counts of the indictment, it is alleged that defendants, "together with others both known and unknown to the Grand Jury", committed the relevant acts charged. Defendants request disclosure of the identity of such persons either known by the grand jury or now known to the government. It is well-settled that the government must identify undisclosed and unidentified co-conspirators, aiders and abettors, and other individuals involved in the criminal acts charged; especially where the government plans to call such persons as witnesses. See Barbieri, 614 F.2d 715, 719; United States v. Barrentine, 591 F.2d 1069, 1077 (5th Cir.1979); Thevis, 474 F.Supp. 117, 125; United States v. Hubbard, 474...