Opinion
No. CR-19-02942-TUC-JGZ (LAB)
06-24-2021
United States of America, Plaintiff, v. Jose Adan Olivas, Defendant.
Report and Recommendation
The District Court referred this case to the Magistrate Judge for a hearing on Defendant Jose Adan Olivas's motion for bill of particulars. (Doc. 169) Co-Defendant Padilla filed a notice of joinder. (Doc. 171) The government filed a response. (Doc. 175) A hearing was held on 6/16/21. No exhibits were presented. No witnesses testified. Charge :
The defendants are charged in a nine-count indictment with conspiracy to transport illegal aliens for profit, 8 counts of transportation of illegal aliens for profit and a forfeiture allegation, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(v)(I), (A)(ii) and (B)(i), 18 U.S.C. §§ 2, 982(a)(6) and (b)(1), and 21 U.S.C. §§ 853 and 2461(c). Motion for bill of particulars :
Defendant Olivas seeks a bill of particulars pursuant to Rule 7(f), Fed.R.Crim.P., to provide the defense with a more specific statement of the charged offenses. He moved the Court to order the government to answer seven specific questions. At the hearing, defense counsel narrowed his requests to the following three inquiries:
(1) What are the names of all co-conspirators referred to as "persons known to the grand jury" in count one of the indictment,(Doc. 169, p. 4)
(2) With respect to count 1 of the indictment, describe the alleged co-conspirators 'unknown to the grand jurors' and if there is no such evidence, then strike the clause as Fed.R.Crim.P. Rule 7(d) surplusage,
(3) Name all co-conspirators now known to the government from law enforcement investigation subsequent to indictment.
Defendant Olivas argues a bill of particulars is necessary "to add precision to the charges to enhance his trial preparation, to eliminate surprise at trial, and to enable him to avoid a second prosecution if indictment is too vague." (Doc. 169, p. 3) He claims the indictment charges defendants with transporting illegal aliens but does not specify what Olivas knew when transporting the illegal aliens. (Doc. 169, p. 1)
The government confirmed that it has and will continue to disclose all relevant information. It will provide its witness list sufficiently in advance of trial to allow the defense to conduct a thorough investigation. The Court concludes that the indictment, in conjunction with the disclosure, adequately informs the defendants of the charges against them. Rule 7(f), Fed.R.Crim.P., does not require a bill of particulars under the facts of this case. The motion should be DENIED. DISCUSSION :
Rule 7(f) allows a motion for bill of particulars before or within 14 days after arraignment, or later if the court permits. The government argues that defense has given no justification for the late request. Arraignment was conducted 11/27/19.
Defendant Olivas's motion for a bill of particulars arises from his assertion that the indictment does not include specific information related to the conspiracy charge. He claims that the "indictment charges defendants with transporting illegal aliens but does not specify what particular acts Olivas knew he was transporting." (Doc. 169, p. 1) He argues that defendants should not be deprived of information needed to prepare a defense because it might be used as evidence by the government. (Doc. 169, p. 2) Defendant Olivas also claims the lack of specific information will inhibit his ability to confront adverse witnesses, implicating his right to due process. (Doc. 169, p. 3) He asks the court to direct the government to answer specific questions posited regarding the indictment's conspiracy charge so he may mount an effective defense.
The government opposes the motion for bill of particulars because the indictment and disclosure adequately inform the defendants of the charges. (Doc. 175, p. 1) It argues it has provided full disclosure, including over 1,000 pages of reports and other case related documents, along with access to all disclosable evidence as required by federal law. (Doc. 175, p. 3) It explains that there is no valid ground for the requested bill of particulars because all evidence introduced at trial will be contained in pretrial disclosures or properly noticed prior to trial. (Doc. 175, p. 4)
Fed. R. Crim. P. Rule 7(f) allows the court to direct the government to file a bill of particulars to reduce surprise, enable adequate trial preparation, and protect the defendant against being placed in double jeopardy. United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983). A bill of particulars is used to remedy vague indictments and entitles the defendant to the theory of the government's case, but not to all the evidence it intends to produce. United States v. Giese, 597 F.2d 1170, 1180-81 (9th Cir. 1983). "Full discovery... obviates the need for a bill of particulars." Id. To obtain a bill of particulars, a court should consider "whether the defendant has been advised adequately of the charges through the indictment and all other disclosures made by the government." (Doc 175, p. 2)
In the present case, Defendant Olivas argues that he is entitled to a bill of particulars due to vagueness of the indictment, which may compromise his defense at trial. (Doc 169. p. 2) Several of Olivas's specific requests pertain to names of co-conspirators that were "unknown to the grand jurors," as written in the indictment. (Doc. 169, p. 4) He claims the details of the charges are necessary "to prepare a defense, to avoid prejudicial surprise at trial and to protect against a second prosecution based upon the same facts." (Doc. 169, p. 4)
The Court recognizes the necessity for a bill of particulars to develop an adequate defense, particularly when an indictment is too vague or indefinite. Olivas argues the indictment is vague due to the "unknown persons" mentioned in the conspiracy charge. While "unknown persons" is not specific, the vagueness can be remedied through means other than a bill of particulars. The government has asserted that it intends to produce such information through discovery and disclosure, as per its legal obligation. As such, the Court can set a disclosure deadline prior to trial, allowing the defandants sufficient time to prepare their defense.
In weighing the competing interests in this case, the Court concludes that a bill of particulars is not appropriate because the indictment adequately informs the defendants of the charges and the information they have requested has been and will continue to be produced through the pre-trial discovery process. RECOMMENDATION :
In view of the foregoing, it is recommended that, after its independent review of the record, the District Court DENY the motion for a bill of particulars. (Doc. 169)
Defense counsel may serve and file written objections within 14 days. If objections are not timely filed, the partys' right to de novo review may be waived. No reply to objections shall be filed unless leave is granted from the District Court.
The Clerk of the Court is directed to send a copy of this Report and Recommendation to all parties.
Dated this 24th day of June, 2021.
/s/_________
Honorable Leslie A. Bowman
United States Magistrate Judge