US v. Burger, 91-40002-01-07.

• Decision Date: 12 March 1991
• Docket Number: No. 91-40002-01-07.,91-40002-01-07.
• Citation: 773 F. Supp. 1419
• Parties: UNITED STATES of America, Plaintiff, v. Thomas A. BURGER, Sherwood E. Blount, Jr., James R. Cruce, Cathy (nee Allin) Cruce, Thomas D. Dunn, Jr., Joseph Grosz, and Kim A. Wise, Defendants.
• Court: U.S. District Court — District of Kansas

773 F. Supp. 1419

UNITED STATES of America, Plaintiff, v. Thomas A. BURGER, Sherwood E. Blount, Jr., James R. Cruce, Cathy (nee Allin) Cruce, Thomas D. Dunn, Jr., Joseph Grosz, and Kim A. Wise, Defendants.

No. 91-40002-01-07.

United States District Court, Kansas.

March 12, 1991.

COPYRIGHT MATERIAL OMITTED

Lee Thompson, U.S. Atty., Richard L. Hathaway, Asst. U.S. Atty., for the U.S.

Dennis W. Moore, Overland Park, Kan., for Thomas A. Burger.

Gary D. McCallister, Davis, Wright, Unrein, Hummer & McCallister, Topeka, Kan., Charles M. Meadows, Jr., Paul Edward Coggins, Kimberly Colby Harris, Meadows, Ownes, Collier, Reid & Coggins, Dallas, Tex., for Sherwood E. Blount, Jr.

Mark L. Bennett, Jr., Glenda L. Cafer, Bennett, Dillon & Callahan, Topeka, Kan., for James R. Cruce.

Mark L. Bennett, Jr., Glenda L. Cafer, Bennett, Dillon & Callahan, Topeka, Kan., Thomas M. Bradshaw, Thomas H. Stahl, Daniel O. Herrington, David L. Mills, Kansas City, Mo., for Cathy Cruce.

James L. Eisenbrandt, Bryan, Cave, McPheeters & McRoberts, Leawood, Kan., for Thomas D. Dunn, Jr.

Donald R. Hoffman, Topeka, Kan., Elliot Samuels, Chicago, Ill., for Joseph Grosz.

Gerald L. Goodell, Topeka, Kan., Frank H. McCarthy, Tulsa, Okl., Layn R. Phillips, Irell & Manella, Newport, Cal., for Kim A. Wise.

MEMORANDUM AND ORDER

SAFFELS, Senior District Judge.

This matter is before the court on several discovery-related defense motions in the above-captioned criminal case.¹ The United States of America (hereinafter, "the government") has also filed a motion for reciprocal discovery and has moved to quash a subpoena filed by defendant Sherwood Blount. On March 8, 1991, pursuant to the pretrial scheduling order in this case, the court heard oral arguments on the motions. In this case, the above-named seven defendants were charged in a twenty-five count indictment, issued January 10, 1991, charging the defendants in Count 1 with a Pinkerton-type conspiracy, see Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), and charging the defendants in the remaining counts with violations of the bank fraud statute, 18 U.S.C. § 1344 (Counts 2-24), and the false statement statute, 18 U.S.C. § 1001 (Count 25). It is the court's intention to dispose, in this Memorandum and Order, of all motions which are presently before the court (with the exception of defendant Cathy Cruce's motion for severance (doc. no. 115), which will be considered in a later hearing).

As an initial matter, the court finds that defendant Blount's motion for notice by government of intention to use evidence (doc. no. 62), should be denied because the government has stated that it has already provided defendants with the exhibits it intends to introduce in its case-in-chief. Thus, this motion should be denied as moot. Similarly, the court denies as moot defendant Blount's motion for production of psychiatric evaluations or records relating to drug or alcohol dependency of any government witnesses (doc. no. 65) based upon the government's assertion (uncontroverted by defendants) that no such records exist. The court also denies as moot defendant Dunn's motion for disclosure of unindicted co-conspirators (doc. no. 77), based upon the government's representations (again, uncontroverted), that the identities of all unindicted co-conspirators have already been disclosed.

The court also finds that defendant Blount's motion to disclose potential conflicts (doc. no. 70) should be denied, because the court finds that defendant has presented in his motion no reason for the court to believe that any departure from the normally applicable ethical rules should be anticipated in this case. Because the court finds that neither defendant has presented persuasive reasons for deviating from the court's previously entered scheduling order in this case, the court finds that the following motions should also be denied: defendant Blount's motion to amend motions or file new motions upon receipt of material from the government (doc. no. 67), and defendant Cathy Cruce's motion for a 30-day extension of time in which to file a motion for discovery and inspection (doc. no. 122), as well as defendant Cathy Cruce's motion for continuance of discovery and motion schedule for 30 days (doc. no. 112).

The court further finds that defendant Blount's motion for production and inspection of grand jury minutes (doc. no. 60), should also be denied. Defendants ask for the transcripts of all grand jury proceedings for the following purposes: to determine whether the grand jury based its indictment only on hearsay, to determine whether the transcripts contain any exculpatory evidence, to determine whether the grand jury based its indictment on a misapplication or a misunderstanding of the law caused by the Assistant United States Attorney, to determine whether improper disclosures were made, and to determine whether the government actually produced the transcripts of the witnesses it intends to call. Disclosure of grand jury testimony or "minutes" is allowed only when a defendant has made a strong showing that a "particularized need" exists and that this need outweighs the policy of grand jury secrecy. United States v. Proctor & Gamble Co., 356 U.S. 677, 681-82, 78 S.Ct. 983, 985-86, 2 L.Ed.2d 1077 (1958); see also United States v. Warren, 747 F.2d 1339, 1347 (10th Cir.1984). Because the court finds that defendants have failed to make the required showing of particularized need, defendants' motion will be denied.

MOTIONS FOR A BILL OF PARTICULARS

Defendants Burger, Blount, James Cruce, Cathy Cruce, Dunn, Grosz, and Wise have filed separate motions for a bill of particulars, (doc. nos. 95, 68, 103, 114, 75, 91, and 99, respectively). As an initial matter, the court notes that the bill of particulars is not "designed as a vehicle for discovery." United States v. Deerfield Specialty Papers, Inc., 501 F.Supp. 796, 810 (E.D.Pa.1980) (citation omitted). The purpose of a bill of particulars is not to allow a defendant to obtain evidentiary detail of the government's case or information regarding the government's legal theories, United States v. Gabriel, 715 F.2d 1447, 1449 (10th Cir.1983), but is instead to supplement the indictment, when necessary, to enable the defendant to prepare his defense, avoid prejudicial surprise at trial, and to bar the risk of double jeopardy. Id. The grant or denial of such motions is discretionary with the court. United States v. Wright, 826 F.2d 938, 942 (10th Cir.1987) (citing United States v. Moore, 556 F.2d 479 (10th Cir.1977)).

In determining whether to grant a defendant's motion for a bill of particulars, the court must decide whether the defendant has been sufficiently apprised of the essential facts of the crime for which he has been indicted by means of the indictment, prior proceedings and discovery. Additionally, the court looks to the defendant's specific showing of prejudice. Wright, 826 F.2d at 942; United States v. Swiatek, 632 F.Supp. 985, 987 (N.D.Ill. 1986). If a defendant offers nothing more than a generalized and conclusory statement of prejudice, the court will deny the motion. Swiatek, 632 F.Supp. at 987. See, e.g., United States v. Wells, 387 F.2d 807, 808 (7th Cir.1967), cert. denied, 390 U.S. 1017, 88 S.Ct. 1272, 20 L.Ed.2d 168 (1968).

In reviewing defendants' motions, the indictment in this case and the applicable law, the court finds that defendants' motions should be denied because they seek disclosure of the evidentiary details of the government's case, to which they are not entitled in a bill of particulars. See, e.g., United States v. Kilrain, 566 F.2d 979, 985 (5th Cir.), cert. denied, 439 U.S. 819, 99 S.Ct. 80, 58 L.Ed.2d 109 (1978); United States v. Baca, 494 F.2d 424, 426 (10th Cir.1974); United States v. Shoher, 555 F.Supp. 346, 349-50 (S.D.N.Y.1983); Deerfield Specialty Papers, Inc., 501 F.Supp. at 810. The court also finds that defendants have not made a showing of specific prejudice which would result from the court's failure to grant the bill. Wright, 826 F.2d at 942-44. The court finds that the indictment and discovery produced-to-date provide defendants with adequate notice of the charges against them, supply defendants with enough facts to enable them to prepare their respective defenses, to avoid surprise at trial, and to avoid double jeopardy. See Gabriel, 715 F.2d at 1449. Accordingly, the court denies defendants' motions for a bill of particulars.

DEFENDANTS' RULE 16 MOTIONS

As a preliminary matter, the court notes that the government has affirmatively represented that it has provided the defendants with all statements within the ambit of Rule 16(a)(1)(A), i.e., written or recorded statements of a defendant that are in the government's custody, the substance of oral statements of a defendant the government intends to offer at trial and that were made in response to government interrogation, and a defendant's grand jury testimony. As these statements are all that is required to be produced under Rule 16(a)(1)(A), the court finds that defendants' motions pursuant to this particular subsection should be denied as moot. The court similarly finds that defendants' motions pursuant to Rule 16(a)(1)(B) should be denied as moot because of the government's representation that the defendants have, to its knowledge, no prior records.

The bulk of defendants' motions for Rule 16 discovery lie within the parameters of Rule 16(a)(1)(C), which requires the production of "documents ... which are within the possession, custody or control of the government, and which are material to the preparation of the defendant's defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant." Because the government has produced the documents it intends to use at trial, as well as the documents obtained from the defendants, the court will focus its attention on the third prong of...