United States v. Thevis

• Citation: 474 F. Supp. 117
• Decision Date: 18 June 1979
• Docket Number: Crim. No. C78-180A.
• Parties: UNITED STATES of America v. Michael G. THEVIS et al.
• Court: U.S. District Court — Northern District of Georgia

474 F. Supp. 117

UNITED STATES of America v. Michael G. THEVIS et al.

Crim. No. C78-180A.

United States District Court, N. D. Georgia, Atlanta Division.

June 4, 1979.

On Motion for Severance June 18, 1979.

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Bobby Lee Cook, Cook & Palmour (on motions), Summerville, Ga., for Thevis.

Edward T. M. Garland, Garland, Nuckolls & Kadish, Atlanta, Ga., for Global and Fidelity on motions.

Austin Catts, Atlanta, Ga., for Evans on motions.

Hylton Dupree, Dupree & Staples, Marietta, Ga., for Mahar on motions.

B. Dean Grindle, Atlanta, Ga., for Hood on motions.

William L. Harper, U. S. Atty., Dorothy Kirkley, Craig Gillen, Asst. U. S. Attys., Atlanta, Ga., for defendants.

ORDER

HAROLD L. MURPHY, District Judge.

I

This motion arises from submission of Defendant Michael G. Thevis's motion for Bill of Particulars pursuant to Rule 7(f), Federal Rules of Criminal Procedure, in which the defendant seeks 336 different particulars.¹ All defendants have adopted this motion.

The motion for Bill of Particulars is addressed to the sound discretion of the trial court, Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545 (1927) and that discretion will not be reversed unless the court concludes that the "defendant was actually surprised at the trial and thus that substantial rights of his were prejudiced by the denial." 1 Wright, Federal Practice & Procedure § 130 at 295 (1969); United States v. Mackey, 551 F.2d 967, 970 (5 C.A.1977); United States v. Bearden, 423 F.2d 805 (5 C.A.1970), cert. denied 400 U.S. 836, 91 S.Ct. 73, 27 L.Ed.2d 68 (1970). Because of this wide discretion, few appellate courts have considered the proper scope of review presented by a motion for Bill of Particulars since each case is particularly limited to its own facts. See, 8 Moore's Federal Practice ¶ 7.062 at 7-35. 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.

To properly evaluate the specific requests for particulars, it is important to enunciate the principles by which the individual particulars will be analyzed. It is not as the government contends, a defense to a motion for Bill of Particulars that the granting of the motion may unnecessarily freeze the government's proof. See, United States v. Neff, 212 F.2d 297 (3 C.A.1954); United States v. Flom, 558 F.2d 1179 (5 C.A.1977).

On the contrary, this Court remains prepared to allow the government to amend its Bill of Particulars pursuant to Rule 7(f), and pursuant to the Court's inherent power to control the presentation of issues before it, see, United States v. Smith, 65 F.R.D. 464, (N.D.Ga.1974), a procedure is set forth in this order to allow the government to amend its Bill of Particulars, but on such terms as to avoid prejudicial surprise to the defendant. Nor is it a legitimate objection to a motion for Bill of Particulars that it calls for an evidentiary response or a legal theory of the government, when the furnishing of this information is necessary to prepare a defense and to avoid prejudicial surprise at trial. United States v. Smith, 16 F.R.D. 372, 375 (W.D.Mo.1954) (opinion by Justice—then Judge—Whittaker).

However, this is not to say that a motion for Bill of Particulars is a carte blanche to the defense to investigate the government's case, United States v. Sherriff, 546 F.2d 604, 606 rehearing denied 549 F.2d 204 (5 C.A.1977); United States v. Leonelli, 428 F.Supp. 880 (S.D.N.Y.1977), and the motion is not a discovery motion. United States v. Isaacs, 364 F.Supp. 895 (N.D.Ill.1973), aff'd 493 F.2d 1124 (7 C.A. 1979), cert. denied 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146, rehearing denied 418 U.S. 955, 94 S.Ct. 3234, 41 L.Ed.2d 1178 (1974). This conclusion is reached in spite of the 1966 amendment to Rule 7(f) which deleted the requirement of a showing of cause as a predicate to the allowance of a Bill of Particulars.

The 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. The Bill has an additional purpose in that further clarity may allow the defendant to raise a double jeopardy defense, if applicable. United States v. Mackey, 551 F.2d 967 (5 C.A.1977).

In essence, the question presented by a motion for a Bill of Particulars requires a 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, supra at 809. United States v. Sullivan, 421 F.2d 676 (5 C.A.1970); Hickman v. United States, 406 F.2d 414 (5 C.A.1969); 1 Wright, Federal Practice & 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).

The showing required of the defense when there is no prima facie case for disclosure is that the particular requested is central information, either theory or evidence, which is necessary to allow the defendant to make his own investigation of the facts out of which the charge arose. United States v. Manetti, 323 F.Supp. 683, 696 (D.Delaware 1971). In essence, the defendant must show that without the requested particular his own investigation could not glean the facts or theory which would preclude prejudicial surprise or allow meaningful opportunities for defense preparation to meet the government's evidence and theories.

The defendant's showing must, perforce, be less than formal, legal proof, for it would be an impossibility to prove the existence of prejudicial surprise and the preclusion of meaningful defense opportunities when the underpinning for these conclusions is unknown and undisclosed. Rather it would be sufficient for the defense to show the logical probability that nondisclosure would yield prejudicial surprise at trial and the concomitant obviation of a meaningful opportunity for defense preparation.

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. See, United States v. Miller, 210 F.Supp. 716 (S.D.Tex.1962). Furthermore, the Court recognizes the traditional concern of the government that criminal discovery would facilitate perjured testimony and witness intimidation. See, United States v. Manetti, supra at 695; Mr. Justice Brennan, "Remarks on Discovery," 33 F.R.D. 47, 56 (1963).

Obviously, the analysis of the competing interests and the defendant's showing is more akin to an art rather than a science. However, in resolving the areas of doubt when the competing interests 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, supra at 697.

II

The indictment in this case is cast in ten counts, and the individual requests for particulars will be analyzed by counts.

Count I sets forth elements of an offense under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. The defendant requests 101 different particulars supplemented by twelve additional requests.

First, the government has agreed to respond to Requests 23, 24, 27, 28, 31, 32, 36, 37 and 44. Furthermore, Requests 53-57, 65-66, 68-69, 71-72, 79-89, 93, 95, 97, and 100 have been provided in response to other defense discovery efforts. Since the requested particulars have already been provided, it is not necessary to rule on those requests herein. United States v. Smith, supra at 469; 1 Wright, Federal Practice and Procedure § 129 (1969).

Request 2 of the supplemental motion is granted, but the government must only disclose whether it contends that the purported sale was illegal. Similarly, Request 8 is granted, but the government must only disclose whether it contends a pornography business is an illegality per se. Neither of those terms as used in the indictment are illegal per se, and the defendant would clearly be prejudicially surprised were the government to contend at trial that one or either of the terms were illegalities in and of themselves.

Requests 3 and 5 of the supplemental motion are granted in that both identify whether the government contends that additional unknown and undisclosed entities or individuals are part of the "pornography business" or "enterprise."

Requests 11, 16, 33 and 38 are granted in full and Request 19 is granted to...