"As a general rule, the accused is not entitled to a bill of particulars which provides the exact date of the commission of the alleged crimes where time is not an essential element of the crime." United States v. Agard, 531 F. Supp.2d 1072 (D. N.D. 2008) (citing United States v. Nunez, 668 F.2d 10 (1 Cir. 1981); United States v. Austin, 448 F.2d 399 (9 Cir. 1971)). The Eighth Circuit Court of Appeals has determined that the date of an offense is not a material element of aggravated sexual assault. SeeUnited State v. Youngman, 481 F.3d 1015 (8 Cir. 2007).

Accordingly, at the pre-trial stage, courts considering whether to grant a motion for a bill of particulars ask whether the defendant has been adequately informed of the charges such that he can prepare a defense and avoid surprise at trial. See United States v. Cree, No. 12-26, 2012 WL 6194395, at *6 (D. Minn. Dec. 12, 2012); Johnson, 225 F. Supp. 2d at 992; United States v. Agard, 531 F. Supp. 2d 1072, 1074 (D.N.D. 2008). Judge Keyes correctly applied this standard to Defendants' motions.

); see, e.g., United States v. Turner, No. 14-20019, 2015 WL 687313, at *3 (E.D. Mich. Feb. 18, 2015) (rejecting motion for bill of particulars in case where the defendant was charged with possessing a firearm in furtherance of a crime of violence where defendant requested “the exact date and times and specific place on which each specific alleged offense occurred”); United States v. Agard, 531 F.Supp.2d 1072 (D. N.D. 2008) (“As a general rule, the accused is not entitled to a bill of particulars which provides the exact date of the commission of the alleged crimes where time is not an essential element of the crime.”).

Similarly, the Eighth Circuit has determined that the date of an offense is not a material element of aggravated sexual assault when committed within the jurisdiction of the United States. See United States v. Youngman, 481 F.3d 1015 (8th Cir. 2007); see also United States v. Agard, 531 F. Supp. 2d 1072, 1074 (D.N.D. 2008) ("It is clear that time is . . . not a material element of the offense of sexual abuse of a minor."). Carter does not explain why he needed additional time to prepare for trial, based on the amended criminal information, or explain how a continuance would have produced a different result.

See United States v. Chen, 378 F.3d 151, 163 (2d Cir. 2004) (stating that district court did not abuse its discretion in denying "bill of particulars specifying the exact time and place of each alleged act associated with each offense identified in the indictment"); United States v. Crule, No. 15-CR-143-V, 2017 WL 5166565, at *2 (W.D.N.Y. Nov. 8, 2017) ; (rejecting request for details of the charged conspiracy such as "the precise date" defendant became a member, and the location of cocaine that was found); United States v. Turner, No. 14-20019, 2015 WL 687313, at *3 (E.D. Mich. Feb. 18, 2015) (rejecting motion for bill of particulars where defendant requested "the exact date and times and specific place on which each specific alleged offense occurred"); United States v. Agard, 531 F.Supp.2d 1072 (D. N.D. 2008) ("As a general rule, the accused is not entitled to a bill of particulars which provides the exact date of the commission of the alleged crimes where time is not an essential element of the crime."). Put simply, "[e]videntiary details such as the who, what, when, where, and why of the crimes alleged fall within the scope of discovery and do not warrant a bill of particulars."

A bill of particulars cannot be used as a discovery device or to obtain a detailed disclosure of the government's evidence or theories. United States v. Wessels, 12 F.3d 746, 750 (8th Cir. 1993); United States v. Agard, 531 F. Supp. 2d 1072, 1074 (D.N.D. 2008). District courts have broad discretion in determining whether to grant or deny a motion for a bill of particulars.

The clerical error contained in the criminal information does not appear to have any legal significance because neither of these statutes includes the date of the occurrence as an element. See United States v. Turner, 975 F.2d 490, 494 (8th Cir. 1992) (recognizing that a variance between indictment and proof is not fatal as long as the date is not a material element to the crime); United States v. Agard, 531 F. Supp. 2d 1072, 1074 (D.N.D. 2008). Finally, Petitioner maintains that his claims are not procedurally defaulted because he complied with the pleading requirements of Rule 37.1.