Opinion
No. 00-40065-01-RDR.
January 5, 2001.
MEMORANDUM AND ORDER
On January 4, 2001, the court held a hearing on the pending pretrial motions in this case. During that hearing, the court made several rulings concerning those motions. The purpose of this memorandum and order is to memorialize the rulings.
The defendant is charged in a fourteen-count superseding indictment. He is charged with one count of bank robbery in violation of 18 U.S.C. § 2113(a) and 2 [Count 1]; one count of using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1) and 2 [Count 2]; four counts of making a false statement to the government in violation of 18 U.S.C. § 1001 [Counts 3, 4, 5 and 6]; seven counts of accessory after the fact in violation of 18 U.S.C. § 3 [Counts 7, 8, 9, 10, 12, 13 and 14]; and one count of misprision of a felony in violation of 18 U.S.C. § 4 [Count 11].
The defendant filed the following pretrial motions: (1) motion to dismiss various counts of superseding indictment as multiplicitous; (2) motion for bill of particulars and production of grand jury material; and (3) motion to file additional motions. Recently, the defendant filed a motion for mental examination of government's chief witness, Christopher Nemmers, by defense expert. The court has allowed the government until January 12, 2001 in which to file a response. The defendant shall have three days following the filing of the government's response in which to file a reply. At that time, the court will consider whether oral argument is necessary on this motion.
MOTION TO DISMISS VARIOUS COUNTS OF SUPERSEDING INDICTMENT
The defendant seeks to dismiss counts 3, 4, 5 and 6 of the superseding indictment because they are multiplicitous and, therefore, in violation of the Double Jeopardy Clause. He contends that he cannot be charged with three separate crimes when he made the same statements to the same person in response to the same questions. The government asserts that these counts are not multiplicitous and they do not violate double jeopardy.
Counts 3, 4, 5 and 6 charge crimes of making false statements. These counts apparently arise from conversations that the defendant had with an FBI agent on February 11, 1999; February 13, 1999; February 14, 1999; and February 15, 1999. The indictment charges that on each day, the defendant told the FBI agent that he had not seen or heard from Christopher Nemmers when in fact he had seen and spoken with Nemmers.
The test for determining whether two counts of an indictment are multiplicitous is set forth in Blockburger v. United States, 284 U.S. 299 (1932): "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each [count] requires proof of an additional fact which the other does not." Id. 284 U.S. at 304.
In United States v. Olsowy, 836 F.2d 439 (9th Cir. 1987), the Ninth Circuit dismissed multiple counts of 18 U.S.C. § 1001 violations based on the defendant's repetition of the same false statement. "[W]e hold that where identical false statements, in either oral or written form, are made in response to identical questions, the declarant may be convicted only once." Olsowy, 836 F.2d at 443. See also United States v. Graham, 60 F.3d 463, 466-67 (8th Cir. 1995) (defendant could not be convicted of multiple 18 U.S.C. § 152 offenses for the repetition of the same false statement). "The holding in Olsowy provides a two-part test for determining whether multiplicitous counts for false statements are permissible. The first is whether a declarant was asked the same question and gave the same answer. The second element is whether later false statements further impaired the operations of the government."United States v. Salas-Camacho, 859 F.2d 788, 791 (9th Cir. 1988).
In this case, unlike Olsowy, the defendant challenges the charges prior to trial. The Olsowy test involves factual issues that need development in the record. The court finds that the defendant's motion is premature at this point. At the conclusion of the trial, the court will reconsider what statements were made and what acts of concealment were committed, as well as whether the later acts or statements further impaired the operations of government. Accordingly, this aspect of the defendant's motion will be denied at this time.
The defendant next contends that Count 14, which charges that the defendant was an accessory after the fact to an aggravated robbery of the night auditor at the Embassy Suites Hotel in Overland Park, Kansas, should be dismissed because there is an insufficient Commerce Clause nexus to be charged as a federal crime. The defendant relies upon UnitedStates v. Morrison, 120 S.Ct. 1740 (2000) and United States v. Lopez, 514 U.S. 549 (1995) for support. The government asserts that present Tenth Circuit law requires that the defendant's argument be rejected.
In United States v. Bolton, 68 F.3d 396, 398 (10th Cir. 1995), the Tenth Circuit held that the government need only show a de minimis effect on interstate commerce to establish the jurisdictional nexus under the Hobbs Act, 18 U.S.C. § 1951. The defendant recognizes this Tenth Circuit precedent, but suggests that the Supreme Court's recent decisions in Morrison and Lopez have created a more stringent test than recognized in Bolton.
Recently, in United States v. Malone, 222 F.3d 1286, 1294-95 (10th Cir. 2000), the Tenth Circuit rejected the argument made by the defendant. There, the Court stated:
In United States v. Morrison, the Supreme Court held that 42 U.S.C. § 13981 of the Violence Against Women Act of 1994 ("VAWA") could not be sustained under the Commerce Clause. See ___ U.S. at ___, 120 S.Ct. at 1754. In reaching this conclusion, the court relied heavily on its earlier decision of United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). This court in Bolton determined thatLopez was consistent with our precedent in that only a de minimis effect on interstate commerce in individual instances was necessary to prove the jurisdictional nexus under the Hobbs Act. Bolton, 68 F.3d at 399. We find nothing in Morrison that would alter this conclusion.
Id. at 1294-95.
This court finds nothing here that requires dismissal of this charge at this time. The court, however, will reexamine this issue at trial after we hear the evidence presented by the government.
MOTION FOR BILL OF PARTICULARS AND PRODUCTION OF GRAND JURY MATERIAL
The defendant seeks a bill of particulars concerning the offenses charged in Counts 7, 8, 9, 10, 12, 13 and 14 of the superseding indictment. Specifically, the defendant requests information concerning what he allegedly did to "receive, relieve, comfort and assist" Christopher Nemmers in the crimes alleged in those charges. The government objects to the defendant's motion. The government contends that the defendant has not met the burden required to justify such a request. The government further notes that this is a full discovery case.
The decision to grant a bill of particulars lies within the discretion of the court. United States v. Sturmoski, 971 F.2d 452, 460 (10th Cir. 1992). The purpose of a bill of particulars is not to obtain discovery, evidentiary detail of the government's case, or information regarding the government's legal theories. United States v. Gabriel, 715 F.2d 1447, 1449 (10th Cir. 1983). The purpose of a bill of particulars is to supplement the allegations of the indictment when necessary to (1) enable the defendant to prepare his defense; (2) avoid unfair surprise to the defendant at trial; and (3) preclude a second prosecution for the same offense. Id. "A bill of particulars is not necessary if the indictment sets forth the elements of the offense charged and sufficiently apprises the defendant of the charges to enable him to prepare for trial." United States v. Ivy, 83 F.3d 1266, 1281 (10th Cir.), cert. denied, 519 U.S. 901 (1996).
The government has indicated that this is a "full discovery" case. Under these circumstances and the fact that the defendant has failed to specifically identify any prejudice, the court does not believe that the government should be required to provide a bill of particulars. Accordingly, the motion shall be denied.
The defendant has also requested the production of the grand jury material that led to the superseding indictment. As correctly pointed out by the government, the defendant has not demonstrated a particularized need for this material. Accordingly, this request must also be denied.
MOTION FOR PERMISSION TO FILE ADDITIONAL MOTIONS
The defendant asks to file additional motions in anticipation of receiving a bill of particulars. With the denial of the motion for bill of particulars, the court shall also deny this aspect of the motion. The defendant also seeks additional time to file a motion to dismiss based on double jeopardy grounds. The defendant has not provided the basis for this motion and has failed to demonstrate why such a motion was not timely filed. This request shall also be denied.
IT IS THEREFORE ORDERED that defendant's motion to dismiss various counts of superseding indictment as multiplicitous (Doc. # 39) be hereby denied. The court will consider these arguments again at the conclusion of the evidence in this case.
IT IS FURTHER ORDERED that defendant's motion for bill of particulars and production of grand jury material (Doc. # 40) be hereby denied.
IT IS FURTHER ORDERED that defendant's request for permission to file additional motions (Doc. # 38) be hereby denied.
IT IS FURTHER ORDERED that the government shall have up to and including January 12, 2001 in which to file a response to defendant's motion for mental examination of government's chief witness. The defendant shall have three days following the filing of the government's response in which to file a reply.
IT IS SO ORDERED.