Summary
collecting child sex-abuse cases that recognize this proposition
Summary of this case from U.S. v. KeurenOpinion
Case No. C4-03-16
May 16, 2003.
ORDER DENYING DEFENDANT'S MOTION FOR BILL OF PARTICULARS
Before the Court is the Defendant's Motion for Bill of Particulars filed on April 28, 2003, pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure. For the reasons outlined below, the motion is denied.
I. BACKGROUND
The Defendant, Raymond Azure ("Azure"), is charged by Indictment with sexually abusing three (3) children under the age of twelve. Count One of the Indictment charges Azure with knowingly engaging in a sexual act with K.A. in or about August 2002. Count Two charges Azure with engaging in sexual contact with J.A. at the Keith Azure residence in the summer of 1994. Count Three charges Azure with engaging in sexual contact with J.A. in a pasture near Raymond Azure's residence in or about the second half of 1994. Count Four charges Azure with engaging in sexual contact with B.A. at the Raymond Azure residence in or about 1993 or 1994.
Azure asserts that the Indictment lacks adequate detail in two respects: (1) the dates of the offenses as alleged in the Indictment are too broad, rendering it nearly impossible for him to prepare his defense; and (2) Count One fails to allege the location where the Government believes the abuse took place. Azure asks the Court to direct the Government to provide him with a bill of particulars containing additional details of the alleged offenses so that he may effectively prepare his defense.
In response, the Government contends that the Indictment is sufficient, namely because it contains all of the essential elements of the offenses charged; it fairly informs Azure of the charges against which he must defend; and it alleges sufficient information to allow Azure to plead to a conviction or acquittal as to bar a subsequent prosecution. The Government further contends that the Indictment contains general allegations with respect to the date of the offenses which are acceptable in this instance because dates are not an essential element to any of the offenses charged. The Government contends that it has provided Azure with all discovery materials and information available as to the nature of the charges and that Azure is, therefore, not entitled to a bill of particulars. Finally, with respect to the location of the offense charged in Count One, the Government argues that Azure has been provided with discovery materials indicating that the alleged incident occurred at the Keith Azure residence.
II. LEGAL DISCUSSION
A bill of particulars serves to inform the defendant of the nature of the charge against him with sufficient precision to enable him to prepare for trial, to avoid or minimize the danger of surprise at trial, and to enable him to plead his acquittal or conviction in bar of another prosecution for the same offense when the indictment is too vague and indefinite. United States v. Hernandez, 299 F.3d 984, 989-90 (8th Cir. 2002). The Court, in its discretion, may direct the Government to file a bill of particulars pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure. See Fed.R.Civ.P. 7(f). To establish reversible error from the denial of a motion for a bill of particulars, a defendant must show that he was actually surprised at trial and suffered prejudice from the denial. United States v. Hernandez, 299 F.3d 984, 989-90. The granting or denial of a bill of particulars lies within the broad discretion of the trial court. United States v. Hernandez, 299 F.3d 984, 989-90 (8th Cir. 2002); United States v. Maull, 806 F.2d 1340, 1345 (8th Cir. 1986); United States v. Arenal, 768 F.2d 263, 268 (8th Cir. 1985).
In his motion, Azure's primary complaint is that the Indictment does not inform him with any specificity as to when the alleged offenses occurred. As a general rule, the accused is not entitled to a bill of particulars giving the exact date of the commission of the alleged crimes where time is not an essential element of the crime. See United States v. Nunez, 668 F.2d 10, 11-12 (1st Cir. 1981); United States v. Austin, 448 F.2d 399, 401 (9th Cir. 1971) ("generally, exact dates are not required so long as they are within the statute of limitation . . . and no prejudice is shown"). Although the Eighth Circuit Court of Appeals has not specifically addressed the application of this general rule in the context of cases involving the abuse of young children, there is no dispute that Azure has been provided with the approximate date(s) of the alleged offenses; the identities of the victims in the case; and the location of the alleged offenses. Azure has received all of the victim and witness statements and the alleged victims are relatives. The Government is not in possession of any additional information at this stage which would provide any more specificity. The question before the Court is whether the Government should be required to describe the dates of Azure's alleged offenses with greater specificity.
State courts confronted with this issue have observed that children by their very nature have difficulty pinpointing specific dates in time. See State v. Varney, 641 A.2d 185, 186 (Me. 1994) (concluding that the trial court did not abuse its discretion in denying the defendant's motion for a bill of particulars when the child-victim was unable to testify as to the exact dates on which her alleged abuse occurred); State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991) ("it must be acknowledged that in many cases of child sexual abuse, the state will be unable to offer specific dates on which the alleged offenses occurred"); State v. Armstrong, 712 P.2d 1258 (Kan. 1986) ("where a prosecution involving indecent liberties with a child does not commence promptly after the alleged commission of an offense or the event is not otherwise brought to the public notice, it is not unusual for uncertainty as to dates to appear, particularly when the memories of children are involved"). While the findings are not binding, the Court finds their general observations concerning the vagaries of a child's memories to be instructive. The Court further finds that the discussion of this issue by the Supreme Court of Tennessee in State v. Byrd, to be particularly insightful.
Faced with charges unlimited by meaningful date restrictions, the defendants [who were charged with sexually abusing their minor children] were entitled to information from the state sufficient to permit the preparation of their defense.
At the same time it must be acknowledged that in many cases of child sexual abuse, the state will be unable to offer specific dates on which the alleged offense occurred. . . .
In recognizing these procedural limitations, however, we do not wish to imply that the prosecution may satisfy its burdens . . . simply by alleging in a bill of particulars that it is unable to give specific dates on which the offenses occurred. There is always the possibility that descriptive information can be made available that will tend to narrow the time-frame of the indictment, even if exact dates cannot be provided.
For example, in a child sexual abuse case involving a victim too young to give exact dates, the child may be able to define the time of the offense by reference to such memorable occasions in a child's life as birthdays, seasonal celebrations and holidays, the beginning or end of the school year, or visitations by relatives. . . . The state's ability to distinguish one event from another suggests that the prosecution may have additional information in its possession that would enable the defense to identify more narrowly the time of the alleged offense and to refine and particularize its trial strategy, even if that information is not date-specific.
State v. Byrd, 820 S.W.2d 739, 741-42.
The dates of the offenses alleged in Counts One, Two, and Three have been defined by reference to a specific month or season. Given the ages of Azure's alleged victims, the times of these offenses are relatively specific under the circumstances and would not appear to hamper Azure's ability to prepare his defense. The date of the offense alleged in Count Four is more troubling in that contains a less meaningful time frame, i.e., "in or about 1993 or 1994." However, the Government has expressly stated that Azure has been provided with all of the discovery materials, including the alleged victim and witness statements. Azure possesses all of the information available to the Government concerning these alleged offenses. Requiring the Government to provide a bill of particulars would serve no legitimate purpose as Azure should be capable, from the discovery materials provided, of gleaning any existing relevant information concerning the date of this alleged offense.
Accordingly, the Court DENIES Azure's Motion for Bill of Particulars (Docket No. 15).
IT IS SO ORDERED.