ABDUL K. KALLON, District Judge.
Before the court are Steven McKinney's and David Lynn Roberson's respective motions for a bill of particulars, docs. 56 and 62, and McKinney's Motion for Identification of the Specific Documents which the Government Expects to Introduce in its Case-In-Chief at Trial, doc. 63, which the court construes as a motion for a bill of particulars. The other defendants have adopted these motions. In a nutshell, the Defendants have requested that the Government identify and/or specify (1) all unlawful acts, including any "official acts" by Oliver Robinson, comprising the alleged conspiracy; (2) all unindicted co-conspirators and/or aiders and abettors; (3) more particular facts about the alleged agreement between Robinson and the Defendants; (4) the five companies to whom the EPA sent general notice letters, and the five corporations which allegedly contributed money to the Alliance for Jobs and the Economy ("AJE"); (5) the dates and amounts of the invoices sent and payments made under the alleged conspiracy; and (6) all documents that the Government intends to use during its case-in-chief. Docs. 56; 62; 63. The Government opposes these requests. See docs. 75; 76. The court addresses each request below.
Criminal defendants are not entitled to "generalized discovery," United States v. Colson, 662 F.2d 1389, 1391 (11th Cir. 1981), or "a detailed disclosure" of the Government's evidence, Johnson v. United States, 207 F.2d 314, 320 (5th Cir. 1953). However, courts may order the Government to file a bill of particulars where an indictment fails to "set forth specific facts in support of requisite elements of the charged offense, and the information is essential to the defense." Fed. R. Crim. P. 7(f); United States v. Cole, 755 F.2d 748, 760 (11th Cir. 1985).
The indictment alleges that the Defendants concocted an illegal scheme to pay an Alabama state representative to oppose the EPA's proposals regarding a Superfund site. Doc. 1. In 2014, shortly after the EPA notified five companies that it was investigating their role in pollution around the 35
The Defendants contend that the indictment fails to provide adequate notice of the nature of the charges against them and lacks certain information necessary to prepare their respective defenses. As such, they have moved the court to direct the Government to file a bill of particulars. The court addresses each request below.
Based on McDonnell v. United States, which clarified the definition of an "official act" under the federal bribery statute, 136 S.Ct. 2355, 2371 (2016), the Defendants argue that the indictment fails to specify "the concrete governmental `matter(s)' at issue, and how Mr. Robinson allegedly used the official powers of his office to act `on' such matter(s)." Doc. 56 at 7-8. Depriving the Defendants of this information, they argue, would force them "to devote substantial time and energy at trial to determine whether any of the Defendants paid Mr. Robinson" to perform actions that do not qualify as "official acts." Doc. 56 at 8.
A review of the indictment shows that it adequately identifies the "official acts" Robinson purportedly performed. As the Government notes, see doc. 76 at 8-10, the indictment alleges that the Defendants paid Robinson in exchange "for using his official position" to do the following:
Doc. 1 at 28-29. These purported actions undertaken by Robinson in furtherance of the alleged conspiracy are sufficient to prevent surprise at trial and allow the Defendants to prepare their defense. See Cole, 755 F.2d at 760. Moreover, an indictment is not designed to prove the Government's case; it merely needs to "track[] the statutory language" of the laws the Defendants allegedly violated. See United States v. Martell, 906 F.2d 555, 558 (11th Cir. 1990); Cole, 755 F.2d at 760. Because the indictment here "tracks" the language of the corresponding statutes, the Defendants are not entitled to additional specifics regarding which acts were performed in Robinson's official capacity.
Relatedly, the Defendants also argue that the indictment fails to allege sufficient information about the unlawful acts occurring during the final seventeen months of the alleged conspiracy. See doc. 56 at 9-11. However, in conspiracy cases, the Government is not required "to provide defendants with all overt acts that might be proven at trial." United States v. Rosenthal, 793 F.2d 1214, 1227 (11th Cir.), modified, 801 F.2d 378 (11th Cir. 1986); see also Colson, 662 F.2d at 1391 (affirming trial court's decision to deny a motion for bill of particulars where the government proved overt acts at trial that were not included in the indictment). Moreover, contrary to the Defendants' assertions, the Government alleges more than a single act during the last seventeen months of the alleged conspiracy. Specifically, in addition to their alleged communications directing Robinson to oppose the EPA's proposal to his constituents, the indictment claims that the Defendants facilitated payments to the Oliver Robinson Foundation in 2016, doc. 1 at 9, and that Gilbert instructed his law firm's accounting department "to remove references to the Oliver Robinson Foundation" on certain invoices, id. at 27. These details provide the Defendants "with sufficient factual information to prepare [their] defense as to the [alleged] illegal activity." See United States v. Jones, No. 1:11-CR-42-TCB-LTW, 2012 WL 4049449, at *6 (N.D. Ga. Aug. 3, 2012), report and recommendation adopted, 2012 WL 4049448 (N.D. Ga. Sept. 13, 2012). In that respect, the indictment here is different than the one in United States v. Trie, which the Defendants cite, see doc. 95 at 5, where "portions of the indictment [we]re difficult to follow" and the indictment failed to identify the property the Government maintained the defendant obtained fraudulently. See 21 F.Supp.2d 7, 22 (D.D.C. 1998).
The Defendants also seek the names of any unindicted co-conspirators and/or aiders and abettors. Docs. 1 at 9; 56 at 11; 62 at 4; 95 at 7. Again, the Defendants have no right to wholesale discovery of the Government's witness list. See United States v. Anderson, 799 F.2d 1438, 1442 (11th Cir. 1986) (allowing a defendant to obtain a list of government witnesses or unindicted co-conspirators through a "bill of particulars" would frustrate Rule 16(b)'s restriction on discovery). Moreover, the Government has represented previously that there are no known unindicted co-conspirators, see doc. 56 at 13, a fact that "remains true today," see docs. 75 at 6; 76 at 8. In other words, the Defendants' request is moot. See United States v. Surles, No. 1-08-CR-345-03-CC/AJB, 2009 WL 10670624, at *4 (N.D. Ga. Feb. 25, 2009) ("[T]he government has stated that it is unaware of any other unindicted coconspirators, which responds to defendant's request for the identities of the `others' listed in the indictment.").
The Defendants next contend that they are entitled to more particularized facts regarding the alleged agreement to form the conspiracy. Docs. 62 at 7-11; 98 at 6. But, as the Government correctly notes, doc. 75 at 8-9, "[a] bill of particulars may not be used to compel the government to provide the essential facts regarding the existence and formation of a conspiracy" or "all overt acts that might be proven at trial." Rosenthal, 793 F.2d at 1227. Likewise, the Defendants cannot use a motion for a bill of particulars to basically seek "conversations and activities in which [they allegedly] participated," see Cole, 755 F.2d at 760, and for which they cannot credibly claim any surprise, see United States v. Cantu, 557 F.2d 1173, 1178 (5th Cir. 1977) ("Cantu could hardly have been surprised by" witness testimony regarding "conversations in which Cantu participated.").
The Defendants request also "the names of the five companies" to whom the EPA sent general notice letters and which allegedly contributed to the AJE. See docs. 62 at 5-6; 98 at 5. The letters the EPA disseminated are publicly available,
The Defendants also seek the "[p]articular dates and amounts of the alleged invoices and payments" referenced in paragraphs 25, 26, and 28 of the indictment. These paragraphs allege that Gilbert and McKinney's law firm submitted payments to the Oliver Robinson Foundation and then sent invoices to Roberson's employer for identical amounts. Docs. 62 at 6; 98 at 5-6. The court agrees with the Government that specifying every individual payment or invoice is not necessary for the Defendants to prepare their defense, especially since they were allegedly involved in effectuating the payments. Doc. 75 at 8. Because these are "activities in which [the Defendants allegedly] participated," see Cole, 755 F.2d at 760, the Defendants should already have access to this information.
Finally, the Defendants submit a catchall request for the Government to identify "documents that it intends to use at its case-in-chief at trial," stating that the Government seeks to "inundate" them with a "massive amount of discovery." Docs. 56 at 15; 63 at 7; 95 at 8-11. As they put it, the Government has produced a "document dump" of over 1,700,000 pages of documents, much of which has "either no or minimal relevance." Docs. 63 at 2-3; 95 at 1. The court disagrees. As Judge T. Michael Putnam previously explained in another case:
United States v. Scrushy, No. CR-03-BE-530-S, 2004 WL 483264, at *3-4 (N.D. Ala. Mar. 3, 2004). In short, a bill of particulars is intended to prevent surprise by the charges, not the "evidence supporting" the charges. See id. Although the "voluminous discovery" in this case will require counsel to devote many hours combing through the documents, the court factored this in when it continued the trial and set it for a date that accounted for counsel for the Defendants' other obligations.
Although knowing the precise manner in which the Government intends to prove its case "would, without question, allow [the Defendants] to better prepare [their] defense," the Defendants are not entitled to this information. See United States v. Henderson, No. 2:16-CR-0182-LSC-JEO, 2016 WL 5853743, at *3 (N.D. Ala. Aug. 17, 2016), report and recommendation adopted, 2016 WL 5816047 (N.D. Ala. Oct. 5, 2016); Scrushy, 2004 WL 483264, at *3-4. Indeed, the Defendants may not use a motion for a bill of particulars "to compel the government to [offer a] detailed exposition of its evidence or to explain the legal theories upon which it intends to rely at trial." United States v. Burgin, 621 F.2d 1352, 1359 (5th Cir. 1980). Nor can they use such a motion to obtain the Government's witness list or the documents it intends to use. See Scrushy, 2004 WL 483264, at *3-4. Therefore, consistent with this opinion, the Motions for Bill of Particulars, docs. 56 and 62, and the Motion to Compel Identification of the Specific Documents which the Government Intends to Use at its Case-In-Chief at Trial, doc. 63, are
However, in the event that the Government subsequently learns of other unindicted co-conspirators, or aiders and abettors, and, to the extent that (1) it plans to call them as witnesses, see United States v. White, 846 F.2d 678, 693 (11th Cir. 1988), and (2) their identities are "essential [for Defendants] to understand[]" the charges against them, see Scrushy, 2004 WL 483264, at *9, the court hereby
United States v. Campbell, No: 1:04-CR-424-RWS-ECS at *4 (N.D. Ga June 3, 2005).