Opinion
CRIMINAL NO. 1:CR-02-146-01, 1:CR-02-146-02, 1:CR-02-146-03
February 14, 2003
MEMORANDUM AND ORDER
Before the court is Defendants Grass, Brown and Bergonzi's amended motion for a bill of particulars. In this motion, Defendants seek eighty-five separate requests for further particulars regarding the charges in the indictment.
The court notes at the outset that Defendants' reply brief was untimely filed according to the Middle District Local Rules. According to Local Rule 7.7, a "brief in reply . . . may be filed by the moving party within ten (10) days after service of the respondent's brief." Id. Here, the Government's certificate of service indicates that it sent, via United States mail, its brief in response to Defendants' motion on January 24, 2003. (Govts. Br. in Resp. to Defs. Amend. Mot. for Bill of Part. at Cert. of Service.) Ten business days from the date of service was February 7, 2003. Counting three days for mailing, would make Defendants' reply brief due on February 10, 2003. The certificate of service attached to Defendants' Reply in Support of Defendants' Amended and Renewed Motion for a Bill of Particulars is dated February 12, 2003. (Defs. Reply Br. in Supp. of Amend. Mot. for a Bill of Part. at Cert. of Service.) Thus, the reply brief was filed two days past the date on which it was due. Because this is the first instance where Defendants have submitted an untimely filing, the court will entertain Defendants' arguments in their Reply Brief as if it was timely filed. However, Defendants are admonished to comply with the Middle District Local Rules in all future dealings with the court.
Rule 7(f) of the Federal Rules of Criminal Procedure governs requests for bills of particulars. That rule, in relevant part, states:
The Court may direct the filing of a bill of particulars. A motion for a bill of particulars may be made before arraignment or within ten days after arraignment or at such later time as the Court may permit. A bill of particulars may be amended at any time subject to such conditions as justice requires.
The purpose of a bill of particulars is to inform the defendant of the nature of the charges against him so as to enable him to adequately prepare his defense, avoid surprise during the trial, and to protect the defendant against a second prosecution for an inadequately described offense. United States v. Addonizio, 451 F.2d 49, 63-64 (3d Cir. 1972). A bill of particulars may not be used merely as a discovery device to acquire evidentiary details about the Government's case. United States v. Smith, 776 F.2d 1104, 1111 (3d Cir. 1985). Instead, it is "intended to give the defendant the minimum amount of information necessary to permit the defendant to conduct his own defense." United States v. Marini, 90 F. Supp.2d 574, 590-91 (M.D.Pa. 2000) (citations omitted); accord United States v. Giampa, 904 F. Supp. 235, 280 (D.N.J. 1995) ("Although Rule 7(f) is construed liberally, it does not permit the defendant to receive wholesale discovery of the Government's evidence."). A bill of particulars should only be granted where the indictment is too vague or indefinite to reasonably allow a defendant to prepare his defense. Marini, 90 F. Supp.2d at 591.
In the instant case, Defendants claim that:
Although there has been voluminous discovery in this case, the government has remained largely silent on the specific acts which are alleged to give rise to this criminal complaint. As noted repeatedly in the Memorandum of Law that accompanied the original motion, it is impossible for defendants to sift through hundreds of thousands of documents . . . and discern exactly what conduct requires defending in this case.
(Defs. Amend. Mot. for a Bill of Part. at p. 2-3.)
The court is convinced that the thirty-seven count, ninety-six page indictment issued in this case provides Defendants with "the minimum amount of information necessary to permit the [Defendants] to conduct [their] own defense." Marini, 90 F. Supp.2d at 591. The indictment contains a twenty-three page introduction, a thirty-three paragraph description of the manner and means allegedly employed by Defendants, and over 140 overt acts which were allegedly committed by Defendants. Additionally, the indictment alleges with specificity many of the dates, times, documents, accounts and persons that the Government will likely rely on at trial. Moreover, the Government has supplemented the indictment through extensive pre-trial discovery. Since the issuance of the indictment, the Government has had an "open-file" policy with Defendants. The Government has turned over all of its Brady material, and in an effort to accommodate Defendants, has turned over its Jencks material earlier than required.
Defendants argue that it is precisely because of the extensive pretrial discovery in this case that they need a bill of particulars. Specifically, Defendants argue that without a bill of particulars they "will simply be stabbing in the dark as to what the government seems to think is criminal about their actions." (Defs. Br. in Supp. of Mot. for Bill of Part. at 7.) The court disagrees. The indictment is clear about what actions, allegedly committed by Defendants, are criminal. A bill of particulars is only necessary when the indictment itself is insufficient to put Defendants on notice of the allegations lodged against them. It is not designed to narrow the scope of the information provided by the Government in its pretrial discovery disclosures. Likewise, it is not a means for Defendants to peek at the Government's trial strategy. What Defendants' bill of particulars seeks is a comprehensive outline of how the Government is going to prove the allegations contained in the indictment. In other words, Defendants want the government to "weave all the information at its command into a . . . fully integrated trial theory for the benefit of defendants." United States v. Boffa, 513 F. Supp. 444, 485 (D.Del. 1980). This is beyond the scope of a bill of a particulars.
The amended bill of particulars are replete with requests that seek the court to order the Government to specifically demonstrate how they are going to prove the allegations in the indictment. For example, Defendants request the following information:
Page 23, ¶ 2(b): Identify every statement, representation, trick, scheme or device that falsified, concealed, or covered up a material fact. More specifically, for each one, identify the material fact that was falsified, concealed, or covered up, the materiality of the fact, and the identity of each alleged co-conspirator who knew the representation or scheme to be for the purpose of falsifying, concealing, or covering up material facts.
(Defs. Mot. for Bill of Part. at 4, ¶ d.)
This request is clearly aimed at discerning before trial, the Government's trial strategy and is, in the court's opinion, an attempt by the Defendants to force the Government to commit itself to a particular version of the facts. Moreover, Defendants request ignores the information provided in the indictment. The page and paragraph to which this particular request is directed deals with various allegedly false statements and filings submitted to the United States Securities and Exchange Commission ("SEC"). While not specifically alleged in the particular paragraph at issue, the indictment describes in detail the allegedly false filings to the SEC — including dates and persons alleged to have caused such filings. ( See, e.g., Indictment, Count 1, at p. 39, ¶ 39; p. 42, ¶ 49; p. 46, ¶ 65; and p. 54, ¶ 101). Many of the other particulars sought by Defendants are similarly crafted.
The court will not order the Government to provide Defendants with a road map of their trial strategy. Discovery of the Government's legal theories simply lies beyond the scope of a bill of particulars. See United States v. Parlevecchio, 903 F. Supp. 788, 795-96 (D.N.J. 1995). (denying defense request for the Government's theory of the prosecution on an obstruction charge). Moreover, given the breadth and detail of the indictment, as well as the pretrial discovery in this case, the court believes that the Government has provided Defendants with all of the information required to prevent unfair surprise at trial.
Therefore, in accordance with the foregoing, IT IS HEREBY ORDERED THAT Defendants' Amended and Renewed Motion for a Bill of Particulars is DENIED.