Library of Motions – Combined Motion And Memorandum In Support For Bill Of Particulars

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

COMBINED MOTION AND MEMORANDUM
IN SUPPORT FOR BILL OF PARTICULARS

NOW COMES defendant JOHN DOE, through undersigned counsel, and moves that the Court direct the
Government to file a bill of particulars pursuant to Fed. Rule Crim. P. 7(f) clarifying the indictment in the
instant case in the following respects:

1. With respect to Count One of the Indictment, please state with particularity the basis and manner and means, including the date, place, time, and names of alleged participants, of the simple allegation that Defendant DOE did knowingly or intentionally combine, conspire, confederate and agree together with other defendants and with other persons known and unknown to the Grand Jury to distribute or possess with intent to distribute: “GHB”, “Ecstasy/MDMA”, cocaine, “crack” cocaine, methamphetamine, and marijuana.

2. With respect to Count One of the Indictment, please state with particularity the time period(s) that Defendant RODNEY DOE is alleged to have participated in the conspiracy.

3. With respect to Count One of the Indictment, if the government considers the persons listed in the discovery material received to date to be unindicted co-conspirators, then please state with particularity how many conspiracies are alleged to have existed, the identities of the co-conspirators, and the involvement of each person.

4. With respect to Count One of the Indictment, if indeed the government considers the persons listed in the discovery material to be unindicted co-conspirators, then please state with particularity the manner and means of the alleged conspiracy(s), as there is not an indication as to which acts constituted this conspiracy(s), how it (or multiple conspiracies) occurred, who was involved, or how such persons were involved.

5. With respect to Count 1 of the Indictment, please also state with particularity each and every overt act allegedly committed in furtherance of the conspiracy alleged in Count One, by whom each act was allegedly committed, and the date, time, and place of occurrence of each act.

6. With respect of Count One of the Indictment, describe those alleged co-conspirators both known and unknown to the grand jurors and if there be no evidence of such, then strike the surplusage.

7. With respect to Count One of the Indictment, please also state with particularity each and every act allegedly committed by Defendant RODNEY DOE which constitutes the crime alleged in Count One, with whom each act was allegedly committed, and the date, time, and place of occurrence of each act.

I.

A bill of particulars should be granted where the matters requested are necessary to inform defendant of the charges against him with sufficient precision to enable him to prepare his defense and avoid surprise or necessary to enable defendant to plead a double jeopardy bar of further prosecution for the same offense. United States v. Gorel, 622 F.2d 100 (5th Cir. 1979), cert. denied, 445 U.S. 943 (1980); see also, United States v. Matos-Peralta, 691 F.Supp. 1988 (S.D.N.Y. 1988) (proper function of bill of particulars is to apprise defendant of charges against him with necessary precision so as to avoid unfair surprise at trial, and to preclude second prosecution for the same offense). See also, Grady v. Corbin , U.S. , 110 S.Ct. 2084 (1990).

II.

Bills of particulars are especially necessary in order to enable a defendant adequately to meet the charges against him and mount a competent defense. See, e.g., United States v. Taylor, 707 F.Supp. 696 (S.D.N.Y. 1989)(defendant charged with conspiracy to distribute drugs was entitled to bill of particulars stating names of all persons government would claim at trial were co-conspirators, dates that each such defendant joined conspiracy, and approximate dates and locations of any meetings or conversations at which government would contend defendant joined conspiracy, in order to allow defendant to prepare defense and to define crime charged sufficiently to bar future prosecution for the same offense); see also, United States v. Williams, 113 F.R.D. 177 (M.D. Fla. 1986)(motion for bill of particulars granted insofar as it sought a list of unindicted co-conspirators, at least when that information was not otherwise known to defendants).

Although the decision to grant a bill of particulars or not is within the sound discretion of the trial court, the Fifth Circuit has ruled that when faced with a conspiracy indictment a bill of particulars is a proper procedure for discovering the names of unindicted co-conspirators who the government plans to use as witnesses. United States v. Barrentine, 591 F.2d 1069 (5th Cir. 1979).

If, on the other hand, the government is not aware of other conspirators the language referring to same should be stricken. The prejudice to the accused of including unnecessary and unwarranted allegations is that: 1. the accused will be forced to spend precious time and energy attempting to refute allegations the government may have no intention of attempting to prove; 2. the reading of the allegation to the jury will make it appear that the government has evidence of a far greater conspiracy than that of which the government has actual evidence.

The above-requested information is necessary to Defendant DOE in order to avoid unfair surprise at trial and to prepare an adequate defense.

WHEREFORE, premises considered, Defendant DOE moves that the Court exercise its discretionary power under Fed. Rule Crim. P. 7(f) and order the Government to file a bill of particulars in this matter as more specifically requested herein.

CERTIFICATE OF CONFERENCE

I hereby certify that I, David Finn, attorney for defendant, attempted to confer with Assistant United States Attorney Heather Battan regarding this motion and I was unable to reach her.

CERTIFICATE OF SERVICE

I, David Finn, hereby certify that on the 30 th day of June, 2005, a copy of the foregoing motion was mailed via first-class mail to Assistant United States Attorney Heather Battan, Plano United States Attorney’s Office.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

ORDER

Considering the motion for bill of particulars of Defendant JOHN DOE,

IT IS ORDERED that said motion is GRANTED / DENIED and the Government IS / IS NOT directed to file a bill of particulars as requested in Defendant DOE’S motion.

Ordered this ____ day of __________________, 2005.