LANCE M. AFRICK, District Judge.
The Court has pending before it an objection
On August 7, 2014, the grand jury returned the indictment in this case.
Addison filed a motion
The U.S. Magistrate Judge granted Addison's motion for a bill of particulars and ordered the government to produce a bill "that includes: (1) the name(s) of all unindicted co-conspirators who the government plans to use as witnesses against Addison; and (2) a list of drug transactions in which Addison was allegedly involved, including the names of other persons involved, the locations and approximate dates of the transactions, and the nature and amount of drugs."
The government objects to the U.S. Magistrate Judge's order, contending that Addison has received adequate notice of the conspiracy charge against him through the government's response and other means, and that disclosure of unindicted co-conspirators at this stage of the case is not warranted and is in fact dangerous.
The Court must review objections to the U.S. Magistrate Judge's non-dispositive discovery order and "modify or set aside any part of the order that is contrary to law or clearly erroneous." Fed. R. Crim. P. 59(a); see also United States v. Hudson, No. 09-171, 2011 WL 5038528, at *1 (E.D. La. Oct. 24, 2011) (Vance, C.J.). "A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).
"A defendant possesses no right to a bill of particulars . . . ." United States v. Burgin, 621 F.3d 1352, 1358 (5th Cir. 1980). "The granting of a bill of particulars is addressed to the sound discretion of the trial court . . . ." United States v. Mackey, 551 F.2d 967, 970 (5th Cir. 1977); accord United States v. Montemayor, 703 F.2d 109, 117 (5th Cir. 1983) ("The denial of a bill of particulars is within the sound discretion of the trial judge . . . ."). The Court must decide whether to grant or deny a motion for a bill of particulars with reference to the specific circumstances of this case. See, e.g., United States v. Davis, 582 F.2d 947, 951 (5th Cir. 1978) ("More often [deciding a motion for a bill of particulars] is an exercise calling for discrete decisions properly infused with the ambience of the trial scene and tailored to fit the facts before the trial judge."). A court abuses its discretion in denying a motion for a bill of particulars only when the denial results in actual surprise at trial and prejudice to a defendant's substantial rights. See United States v. Hughes, 817 F.2d 268, 272 (5th Cir. 1987).
"The purpose of a bill of particulars is to apprise a defendant of the charges against him with enough detail to allow him to prepare his defense." United States v. Kirkham, 129 F. App'x 61, 72 (5th Cir. 2005) (citing Montemayor, 703 F.2d at 117); see also, e.g., Mackey, 551 F.2d at 970 ("The purposes of a bill of particulars are to obviate surprise at trial, enable the defendant to prepare his defense with full knowledge of the charges against him, and to enable double jeopardy to be pled in case of a subsequent prosecution."). "A defendant should not use the Bill of Particulars to obtain a detailed disclosure of the government's evidence prior to trial." United States v. Kilrain, 566 F.2d 979, 985 (5th Cir. 1978) (internal quotation marks and citation omitted); accord United States v. Hajecate, 683 F.2d 894, 898 (5th Cir. 1982) ("[A] bill of particulars cannot be required to compel revelation of the full theory of the case or all the evidentiary facts."); Burgin, 621 F.2d at 1359 (holding that a 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"); Davis, 582 F.2d at 951 ("[I]t is well established that generalized discovery is not a permissible goal of a bill of particulars."). Criminal defendants "are not entitled to discover all the overt acts that might be proved at trial" through a bill of particulars. Kilrain, 566 F.2d at 985.
"It is well established that if the government has provided the information called for in some other satisfactory form, then no bill of particulars is required." United States v. Vasquez, 867 F.2d 872, 874 (5th Cir. 1989); accord United States v. Moody, 923 F.2d 341, 351 (5th Cir. 1991) ("A bill of particulars is not required if a defendant is otherwise provided, inter alia, with sufficient information to enable him to prepare his defense and avoid surprise.").
The parties agree that these general guidelines inform the Court's exercise of discretion to grant or deny a bill of particulars.
The U.S. Magistrate Judge ordered the government to produce a bill of particulars containing (1) a "list of drug transactions in which Addison was allegedly involved," and (2) "the name(s) of all unindicted coconspirators who the government plans to use as witnesses against Addison."
The first question is whether the U.S. Magistrate Judge erred in concluding that Addison needs a detailed list of each drug transaction in which the government alleges he was involved in order "to apprise [him] of the charges against him with enough detail to allow him to prepare his defense." Kirkham, 129 F. App'x at 72. The Court concludes that Addison is not entitled to obtain that degree of detail through a bill of particulars, and that the U.S. Magistrate Judge's order was contrary to law because it crosses the line into ordering "a detailed disclosure of the government's evidence," which is not an appropriate use of a bill of particulars. Kilrain, 566 F.2d at 985.
Initially, the Court notes that Addison is charged pursuant to 21 U.S.C. § 846 with conspiring to distribute and to possess with the intent to distribute heroin and cocaine base. The § 846 conspiracy charge does not require proof that he actually distributed or possessed with the intent heroin or cocaine, or proof of "an overt act to show participation in a [drug] conspiracy." See United States v. Turner, 319 F.3d 716, 721 (5th Cir. 2003) (explaining that the elements of a § 846 are (1) the existence of an agreement between two or more persons to violate narcotics laws; (2) knowledge of the conspiracy and intent to join it; and (3) voluntary participation in the conspiracy).
Furthermore, the fact that Addison is charged only with conspiracy reduces the level of factual detail to which he is entitled with respect to the offenses which were the objects of the conspiracy. "It is well established that in `an indictment for conspiring to commit an offense-in which the conspiracy is the gist of the crime-it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy.'" United States v. Lawrence, 727 F.3d 386, 397 (5th Cir. 2013) (quoting United States v. Graves, 669 F.2d 964, 968 (5th Cir. 1982)). Because "the criteria for the sufficiency of an indictment and for whether a district court erred (abused its discretion) in denying a bill of particulars are very similar," see Moody, 923 F.2d at 351, a bill of particulars (or information otherwise provided to the defendant) likewise requires less "technical precision."
When analyzing Addison's motion, the U.S. Magistrate Judge misconstrued United States v. Haas, 583 F.2d 216 (5th Cir. 1978), as entitling Addison to additional detail. The U.S. Magistrate Judge selectively quoted Haas for the blanket proposition that "[t]he Fifth Circuit has held that while a `bare allegation in the indictment . . . is sufficient to withstand a motion to dismiss, it does not . . . meet fully the Government's obligation to permit [the] defendant to prepare a defense.'"
As set forth above, the government in its response to Addison's motion for a bill of particulars stated in approximate terms (1) the duration of Addison's alleged involvement in the conspiracy; (2) the drugs which Addison allegedly received, and from whom; (3) the location of some conduct; and (4) Addison's specific activities and interactions with respect to certain specified co-defendants.
Accordingly, the Court concludes that the law applicable to bills of particulars does not support the U.S. Magistrate Judge's order because Addison does not need that level of detail to fairly apprise him of the nature of the drug conspiracy charge against him. The Court sets aside that portion of the U.S. Magistrate Judge's order directing the government to provide a list of drug transactions.
The U.S. Magistrate Judge also ordered the government to include in the bill of particulars "the name(s) of all unindicted coconspirators who the government plans to use as witnesses against Addison."
In Hughes, the Fifth Circuit affirmed convictions that were obtained after denial of motions for bills of particulars seeking the identity of unindicted co-conspirators. See id. at 272. During trial, the defendants "were given one or more days notice of the Government's intent to call" the witnesses who purportedly should have been disclosed, and therefore the denial of a bill of particulars did not prejudice the defendants. See id. In Barrentine, the district court granted a motion for a bill of particulars listing unindicted co-conspirators, but the government failed to identify the unindicted co-conspirator until the morning of trial. See 591 F.2d at 1076. The Fifth Circuit nonetheless affirmed the convictions because the defendants could not show actual prejudice from the delayed disclosure. See id. at 1078-80.
It is difficult to review the U.S. Magistrate Judge's order of disclosure of the unindicted coconspirator because the order does not directly analyze that disclosure. This difficulty is compounded by the fact that the same order denied Addison's motion seeking identification and interview of confidential informants which the government opposed for essentially the same safety reasons that it opposed early disclosure of unindicted co-conspirators.
Normally, the Court would remand this issue to the U.S. Magistrate Judge for express findings and conclusions, but that procedure is not feasible because of the time constraints imposed by the upcoming trial date of April 20, 2015. Furthermore, if this issue is not moot, it will be soon because at the recent final pretrial conference the government agreed, without objection from counsel for any defendant, to identify unindicted co-conspirators it intends to call at trial by April 6, 2015, two weeks before the start of trial. Accordingly, in these circumstances the Court finds it appropriate to modify the U.S. Magistrate Judge's order as to unindicted co-conspirators. As set forth in the pretrial conference minute entry,
Accordingly, for the foregoing reasons,