United States v. Swiatek, 85 CR 538.

• Decision Date: 21 February 1986
• Docket Number: No. 85 CR 538.,85 CR 538.
• Citation: 632 F. Supp. 985
• Parties: UNITED STATES of America, Plaintiff, v. Michael J. SWIATEK, Thomas J. Bambulas, Edward J. Pedote, Defendants.
• Court: U.S. District Court — Northern District of Illinois

632 F. Supp. 985

UNITED STATES of America, Plaintiff, v. Michael J. SWIATEK, Thomas J. Bambulas, Edward J. Pedote, Defendants.

No. 85 CR 538.

United States District Court, N.D. Illinois, E.D.

February 21, 1986.

Thomas Knight, Chicago Strike Force, Chicago, Ill., for plaintiff.

Ralph E. Meczyk, Joseph R. Lopez, Barrister Hall, Santo J. Volpe, Glenn Seiden & Assoc., Chicago, Ill., for defendants.

ORDER

NORGLE, District Judge.

The four Count indictment in this case charges the Defendants, Swiatek, Bambulas and Pedote, with the following violations of federal statutes;

(1) 18 U.S.C. § 1951 (conspiracy to obstruct, delay and affect interstate commerce by robbery) (all Defendants);

(2) 18 U.S.C. § 923 (knowingly engaging in the business of dealing in firearms without a license) (Pedote);

(3) 18 U.S.C. §§ 922(a)(1) and 924(a) (willful and knowing membership in a conspiracy in which a § 923 violation was committed) (Swiatek and Bambulas);

(4) 26 U.S.C. § 5812 (knowing transfer of § 5845(a)(7) firearms (three silencers) without the proper application) (Pedote);

(5) 26 U.S.C. §§ 5861(e) and 5871 (membership in a conspiracy in which a § 5845(a)(7) violation was committed) (Swiatek and Bambulas);

(6) 26 U.S.C. § 5812 (transfer of a firearm (one silencer) without the proper application) (Pedote);

(7) 26 U.S.C. §§ 5861(e) and 5871 (membership in a conspiracy in which a § 5812 violation was committed) (Swiatek and Bambulas).

The government and all counsel for Defendants participated in Rule 2.04 conferences on September 13, 1985. As a result of the conferences a large volume of information was turned over to Defendants (including tape recordings and documents) and the government agreed to make more evidence available in short order. Defendants, however, were not satisfied. Commencing on September 23, 1985, Defendants filed various motions for additional discovery. Defendants also filed motions for severance and for two hearings; one motion for a Santiago hearing and one motion for a "due process" hearing. This Order addresses each of the Defendants' motions.

I Bill of Particulars

Swiatek and Pedote request a bill of particulars pursuant to Fed.R.Crim.P. 7(f). Specifically, they request

(1) the time and place the alleged offenses occurred;

(2) the method or means by which the alleged offenses were committed;

(3) the name and address of every person relied upon by the government in bringing this prosecution;

(4) a list of government witnesses;

(5) the specific criminal history of each government witness;

(6) the identity of the "clerk" (see Gov Ex 165 at 2) who provided Gene Webb with a weapon (.45 caliber, serial # 70315);

(7) the caliber and serial number of the three firearms transferred by Oscar Luna to Special Agent Mazzolla on December 12, 1985;

(8) a list of all indicted and unindicted co-conspirators;

(9) a list of any overt acts in furtherance of the alleged conspiracy which the government intends to introduce at trial;

(10) the date, time and place in which each of the Defendants is alleged to have become a part of the alleged conspiracy.

This list is but a summary of the particulars requested by Defendants' motions. Several of the requested particulars are too vague to characterize or are repetitious. See, e.g., Pedote Motion at 2, ¶ h. Further, the various motions fail to identify specific prejudice flowing from the lack of particulars. A generalized and conclusory statement of prejudice in support of a motion for a bill of particulars is, in itself, a basis for denying the motion. See United States v. Wells, 387 F.2d 807, 808 (CA7 1967) (statement of prejudice in conclusory terms insufficient to override district court's broad discretionary power to deny bill). There is, however, sufficient specificity in the requests outlined above to require the Court to address Defendants' motions.

Defendants generally contend the particulars identified above are necessary to their defense in this case. As previously mentioned, they do not identify any particular prejudice they would suffer if the bill is denied. The government's response is that a bill is inappropriate in this case because 1) the indictment is sufficiently specific, 2) this is not an overly complex case, 3) much of the requested information can be gathered from materials already furnished to the Defendants, 4) the fact that Defendants are already aware of the particulars they seek (see items 1 through 3) indicates that Defendants seek to get a glimpse at the government's strategy in prosecuting this case, rather than particulars behind the indictment. See United States v. Lavin, 504 F.Supp. 1356, 1361-62 (N.D.Ill.1981) (bill should not be used as discovery device aimed at theory and evidentiary details of government's case).

The purpose of a bill of particulars is to 1) provide a defendant with the additional facts necessary to prepare a defense, 2) supply a defendant with sufficient information in order to avoid surprise at trial and 3) protect a defendant from the potential for double jeopardy. Lavin, 504 F.Supp. at 1361. Defendants generally contend a bill is necessary for their preparation for the trial of this case. The Court accepts that statement as falling within the first two purposes stated above. Defendants ignore any double jeopardy implications. Accordingly, the Court need not address that issue.

The granting of a bill of particulars rests within the discretion of the trial court. Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed.2d 545 (1927). Relevant factors in the exercise of that discretion include 1) the complexity of the charged offense, 2) the clarity of the indictment and 3) the degree of discovery available to the defendant without the bill. United States v. Kendall, 665 F.2d 126, 135 (CA7 1981); Lavin, 504 F.Supp. at 1361. Finally, in order to support the orderly administration of justice and give due observance to the rights of an accused, the Court is required to articulate its reasons for the exercise of its discretion denying a motion for a bill of particulars. United States v. Wells, 387 F.2d 807, 808 (CA7 1967).

The Court finds the indictment in this case meets all of the requirements identified above. The offenses charged in the indictment are not overly complex. The violations of federal law and the supporting facts are stated with clarity. Moreover, the government has provided Defendants with voluminous discovery which fills out any details omitted from the indictment. See Government's Report of 2.04 conferences (listing discovery provided to Defendants). See also Government's Santiago Proffer.

Defendants have a constitutional right to know the offenses with which they are charged, but they have no right to know how the government intends to go about proving those offenses. Thus, because the indictment (along with discovery) adequately informs the Defendants of the offenses with which they are charged, Defendants' motion for a bill of particulars is denied. To do otherwise would provide Defendants with a preview of the government's strategy when Defendants are sufficiently informed to prepare for trial. See United States v. Kendall, 665 F.2d 126, 135-36 (CA7 1981); Lavin, 504 F.Supp. at 1361. Similar reasons compel the denial of Defendants' motion for a list of witnesses. The Court does not believe this case approaches the complexity necessary to demonstrate the need for a list of the government's witnesses. See, e.g., United States v. Jackson, 508 F.2d 1001, 1005-1008 (CA7 1975) (list of witnesses provided where 100 checks and 100 potential witnesses were involved).

II Discovery Motions

A. Defendants ask the Court to order the government to disclose any agreements, promises, payments or other consideration given in return for a promise of testimony or cooperation.

Specifically Defendants request

(1) any government assistance provided to Gene Webb,

(2) any offers of payment by the government for testimony or cooperation (3) any inducement or coercion by the government to gain cooperation or testimony,

(4) any information which may be used to impeach potential witnesses pursuant to Fed.R.Evid. 609(a) or 611(b).

The government's response to Defendants' motion is that 1) if the government has the requested information, then the material a) has been turned over to Defendants or b) will be turned over to Defendants very shortly, or 2) the government denies that any such information is in its possession. In light of the government's response and Defendants' failure to file a reply brief, the Court finds Defendants' motion must be denied. However, the Court reminds Defendants that they may reassert any of their discovery motions if they become aware of specific items or materials they believe they are entitled to.

A similar fate befalls Defendants' motion for similar acts evidence brought under Fed.R.Crim.P. 12(d)(2). The Court agrees with the government that evidence which may be admissible at trial under Fed.R.Evid. 404(b) need not be turned over to Defendants prior to trial if that material is not exculpatory within the meaning of Brady v. Maryland 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See United States v. Kendall, 766 F.2d 1426, 1440-41 (CA10 1985); United States v. Carr, 764 F.2d 496, 500 (CA8 1985). The Court does not read Defendants' motion as claiming any of the requested material is exculpatory in character. Accordingly, Defendants' motion for disclosure of similar acts evidence is denied.

B. Defendants next request discovery of exculpatory and impeaching evidence discoverable under Fed.R.Crim.P. 16, Brady and the Jencks Act. See Motion for Discovery and Inspection of Evidence Favorable to the Accused and Material to His Defense; Bambulas Motion for Immediate Disclosure of Favorable Evidence; Motion for Disclosure of Impeaching, Exculpatory of Mitigating Evidence. In these motions, Defendants make vague (the Government calls them "boiler plate") requests for material.

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