146.

Sample Response to Motion for Bill of Particulars

Defendant's Motion for Bill of Particulars Should Be Denied— Defendant Seeks Discovery To Which He Is Not Entitled. In his motion for a Bill of Particulars, Defendant requests information which has already been furnished to him, or which would constitute pretrial discovery to which he is not entitled. A defendant is not entitled to a bill of particulars as a matter of right. Wong Tai v. United States, 273 U.S. 77, 82 (1927). Notwithstanding what appears to be the premise underlying defendants' motion, a bill of particulars is not intended to serve as the equivalent of answers to interrogatories in a civil case. Rather, "a bill of particulars is a defendant's means of obtaining specific information about charges brought in a vague or broadly-worded indictment." United States v. Dunnigan, 944 F.2d 178, 181 (4th Cir. 1991) (citing United States v. Debrow, 346 U.S. 374, 378 (1953)), rev'd on other grounds, 113 S. Ct. 1111 (1993). An indictment is sufficient if it alleges the essential elements of the crime with which the defendant is charged in a manner that permits the defendants to prepare a defense and plead double jeopardy in any future prosecution for the same offense. Hamling v. United States, 418 U.S. 87, 117 (1974); United States v. Hooker, 841 F.2d 1225, 1227 (4th Ci r. 1988); United States v. American Waste Fiber Co., 809 F.2d 1044, 1046 (4th Cir. 1987). As long as the indictment fulfills these purposes, a bill of particulars is unnecessary and its denial does not constitute an abuse of discretion. United States v. Butler, 885 F.2d 195, 199 (4th Cir. 1989); United States v. Jackson, 757 F.2d 1486, 1491 (4th Cir.), cert. denied, 474 U.S. 994 (1985). If the indictment is deficient, the "purpose of a bill of particulars is to enable the defendant to obtain sufficient information on the nature of the charges against him so that he may prepare for trial, minimize the danger of surprise at trial, and enable him to plead his acquittal or conviction in bar of another prosecution for the same offense," United States v. Schembari, 484 F.2d 931, 934-35 (4th Cir. 1973). Accord United States v. Dulin, 410 F.2d 363, 364 (4th Cir. 1969).But if, as here, the indictment fully complies with the requirements of the Fifth and Sixth Amendments and Fed. R. Crim. P. 7(c), "[a] bill of particulars is not to be used to provide detailed disclosure of the government's evidence in advance of trial." United States v. Automated Medical Laboratories, Inc., 770 F.2d 399, 405 (4th Cir. 1985). As another circuit has stated: . . . A bill of particulars, unlike discovery, is not intended to provide the defendant with the fruits of the government investigation. . . . Rather, it is intended to give the defendant only that minimum of information necessary to permit the defendant to conduct his own investigation. United States v. Smith, 776 F.2d 1104, 1111 (3d Cir. 1985) (citations omitted; emphasis in original); United States v. Burgin, 621 F.2d 1352, 1359 (5th Cir.) (bill of particulars "is not designed to compel the government to detailed exposition of its evidence or to explain the legal theories upon which it intends to rely at trial"), cert. denied, 449 U.S. 1015 (1980); Hemphill v. United States, 392 F.2d 45, 49 (8th Cir.) ("[a]cquisition of evidentiary detail is not the function of the bill of particulars"), cert. denied, 393 U.S. 877 (1968); United States v. Fischbach and Moore, Inc., 576 F. Supp. 1384, 1389 (W.D. Pa. 1983) ("[i]t is well established that a bill of particulars is not to be used by the defendant as a discovery tool, . . . by which defendants obtain disclosure of every detail of the theory and preparation of the government's case. . . ."), aff'd, 750 F.2d 1183 (3d Cir. 1984), cert. denied, 470 U.S. 1029 (1985). A bill of particulars is still more inappropriate when the government supplements a detailed indictment with extensive discovery. The United States has provided the Defendant with extensive discovery including virtually all of the substantive exhibits presented to the grand jury and documents obtained by the government during its investigation. As the Fourth Circuit held in United States v. SIGMA, 624 F.2d 461, 466 (4th Cir. 1979), cert. denied, 449 U.S. 1078 (1981), such "extensive disclosure by the Government" renders a bill of particulars inappropriate. Finally, a motion for a bill of particulars should be denied where the defendant is inappropriately seeking to require the government to "weave the information at its command into the warp of a fully integrated trial theory for the benefit of the defendants. . . ." United States v. Addonizio, 451 F.2d 49, 64 (3d Cir. 1971), cert. denied, 405 U.S. 936 (1972). Similarly, meritless motions should be denied to avoid "freezing" the Government's evidence in advance of trial. Such freezing comes about because of the rule that requires proof at trial to conform to the particulars furnished in a bill. United States v. Boffa, 513 F. Supp. 444, 485 (D. Del. 1980) (citations omitted). The Defendant requests the following information which is already included in the Indictment: the unlawful acts committed by the Defendant in furtherance of the conspiracy (Overt Acts 1 through 3, listed in Count One of the Indictment), the dates of the conspiracy ("On or about October 17, 1991"), the names of all coconspirators (John Boyd is listed as the only coconspirator), and the names of victims (again, in Count One, Joan Bennett, Douglas Monahan, and the sons of Joan Bennett are listed as victims). The request for the "names and address of any and all persons that observed the Defendant . . . participate in the alleged conspiracy" is, in essence, a request for pretrial discovery to which the Defendant is not entitled. The Defendant is not entitled to a complete preview of the government's evidence or theory of the case. In light of the detailed indictment and comprehensive discovery, the defendants' motion for bill of particulars should be denied. [cited in Civil Rights Resource Manual 60]