Opinion
No. 02-40144-01/02/03-SAC
January 27, 2003.
MEMORANDUM AND ORDER
This case comes before the court on the defendant Jose Luis Portilla-Sanchez's following pretrial motions: Motion for Discovery Related to Drug Detection Dog (Dk. 42); Motion for Disclosure of 404(b) and Relevant Conduct Evidence (Dk. 43); Motion for Bill of Particulars (Dk. 44); Motion to Join the Defendant J. Santos Duran-Martinez's Motion to Compel Discovery of Informants (Dk. 45); and Motion to Disclose Expert Testimony (Dk. 46); and the defendant Santos Duran-Martinez's following pretrial motions: Motion for Disclosure of Informing Regarding Prior or Subsequent Bad Acts (Dk. 38); Motion to Compel Disclosure of Existence and Substance of Promises of Immunity, Leniency or Preferential Treatment (Dk. 39), Motion for Discovery and Inspection (Dk. 40); and Motion Adopting other Co-Defendants' Pretrial Motions (Dk. 41); and the defendant J. Santos Duran-Martinez's following pretrial motions: Motion to Compel Disclosure of Existence and Substance of Promises of Immunity, Leniency or Preferential Treatment (Dk. 36), and Motion to Compel Discovery of Informants (Dk. 37). The government has filed separate responses to each defendant. Because the motions do not require an evidentiary hearing and the issues have been fully briefed by both sides, the court will rule forthwith and cancel the hearing scheduled for Thursday, January 30, 2003, at 2:00 p.m.
DISCOVERY MOTIONS (Dks. 36, 37, 39, 40, 42, and 46)
It is an established and published guideline of this court that before filing discovery requests or related motions, "government counsel and defense counsel shall confer in an attempt to agree on a mutually acceptable pretrial exchange" of the requested information. If no agreement is reached, a party's discovery motion "shall disclose that counsel conferred and were unable to agree upon production of the requested information." The guidelines further specify that the court "may summarily deny all motions that do not comply with the above requirements."
The defendants' discovery motions (Dks. 36, 37, 39, 40, 42, and 46) do not state that counsel conferred with government's counsel and were unable to reach an agreement. The government's counsel represents in the responses to these motions that counsel did not consult with him "in an attempt to resolve the discovery issues related" to the motions. The defense counsel in this case have appeared numerous times in this court and are well aware of its procedural guidelines governing discovery motions. The court shall summarily deny the discovery motions for failure to comply with the court's guidelines.
MOTIONS TO JOIN (Dks. 41 and 45)
The court grants these motions on the conditions stated in its procedural guidelines.
MOTIONS FOR RULE 404(B) DISCLOSURES (Dk. 38 and 43)
As to both motions, the government represents that it has no information of any prior bad acts by either defendant and that if it should learn of such information later then it will notify the defense counsel sufficiently in advance of trial to have its admissibility contested. Based on the government's representation, the court denies both motions as moot.
MOTION FOR BILL OF PARTICULARS (Dk. 44)
The defendant Portilla-Sanchez seeks a bill of particulars as to the conspiracies charged in counts two and four. In anticipation of the government's allegation of Pinkerton liability, the defendant wants to learn the identities of undisclosed and unidentified co-conspirators, aiders and abettors, and other individuals allegedly involved in the conspiracies. The defendant contends that the indictment lacks the specificity needed to prepare a defense in this case and to raise a double jeopardy bar in a subsequent prosecution for possession or distribution of controlled substances. Finally, the defendant wants to know the particular quantity of drugs which he is alleged to have conspired to distribute manufacture and possess and argues that the indictment is insufficient in notifying him only of a broad range of possible penalties.
An indictment is held only to minimal constitutional standards, and the sufficiency of an indictment is judged "by practical rather than technical considerations." United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir. 1997). "An indictment is sufficient `if it contains the elements of the offense charged, putting the defendant on fair notice of the charge against which he must defend and if it enables a defendant to assert an acquittal or conviction in order to prevent being placed in jeopardy twice for the same offense.'" United States v. Poole, 929 F.2d 1476, 1479 (10th Cir. 1991) (quoting United States v. Staggs, 881 F.2d 1527, 1530 (10th Cir. 1989), cert. denied, 493 U.S. 1020 (1990)). In the Tenth Circuit, it is usually enough for the indictment to track the statute when the statute adequately expresses all of the elements to the offense. United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir. 1988).
"The purpose of a bill of particulars is to inform the defendant of the charge against him with sufficient precision to allow him to prepare his defense." United States v. Ivy, 83 F.3d 1266, 1281 (10th Cir.) (quotation omitted), cert. denied, 519 U.S. 901 (1996). It serves to minimize the defendant's surprise to the substantive facts of the charges, not the evidentiary basis of the charge. See Wong Tai v. United States, 273 U.S. 77 (1927); United States v. Hopkins, 716 F.2d 739, 745 (10th Cir. 1982). "Unless the request for the bill of particulars shows, on its face, that failure to grant the request would result in prejudicial surprise, the preclusion of an opportunity for meaningful defense preparation, [or double jeopardy problems,] defendant has the burden of showing [by brief, affidavit or otherwise] that his or her request meets one of the three criteria." United States v. Anderson, 31 F. Supp.2d 933, 938 (D.Kan. 1998) (citing United States v. Wright, 826 F.2d 938, 943 (10th Cir. 1987) (citing in turn United States v. Thevis, 474 F. Supp. 117, 123-24 (N.D.Ga. 1979), aff'd, 665 F.2d 616 (5th Cir.), cert. denied, 456 U.S. 1008 (1982))), reconsideration granted in part on other grounds, 36 F. Supp.2d 1264 (D.Kan. 1998). The district court has broad discretion in deciding a motion for bill of particulars. United States v. Edmonson, 962 F.2d 1535, 1541 (10th Cir. 1992).
In exercising its discretion, the trial court must remain mindful of the parameters placed on a bill of particulars. Though it may provide more information, a bill of particulars is not intended to serve as a discovery device or to compel the government's disclosure of the factual proof planned for trial. United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir. 1988). A defendant is not entitled to notice of "all the evidence the government intends to produce, but only the theory of the government's case." United States v. Levine, 983 F.2d 165, 167 (10th Cir. 1992). Nor is it a way to require the government's explanation of the legal theories expected at trial. United States v. Gabriel, 715 F.2d 1447, 1449 (10th Cir. 1983). Evidentiary detail is not a proper request for a bill of particulars. United States v. Barbieri, 614 F.2d 715, 719 (10th Cir. 1980). A bill of particulars is not required where the information necessary for one's defense can be obtained through some other satisfactory form. See United States v. Canino, 949 F.2d 928, 949 (7th Cir. 1991), cert. denied, 504 U.S. 910 (1992). Thus, a defendant's access to evidence is a factor to be considered. See United States v. Kunzman, 54 F.3d 1522, 1526 (10th Cir. 1995).
The indictment sets forth the essential elements of the conspiracy offenses charged and provides the defendants with minimal notice of the charges against which they must defend. The indictment sufficiently alleges the timing of the conspiracies, the defendant co-conspirators involved, the location of the conspiracies, and their unlawful objects. The indictment specifies the beginning and concluding dates of both alleged conspiracies and so frames the conspiracy as occurring within the specified two-day period. The indictment defines the nature of each conspiracy as the possession of the described drug with the intent to distribute it. The indictment describes the location of the conspiracy as the District of Kansas and names the three defendants as co-conspirators. The indictment finally identifies the kind and amount of drugs involved in each conspiracy. An indictment for conspiracy to possess with the intent to distribute controlled substances "need not go further and allege `in detail the factual proof that will be relied upon support the charges.'" Dunn, 841 F.2d at 1029 (quoting United States v. Crippen, 579 F.2d 340, 342 (5th Cir. 1978), cert. denied, 439 U.S. 1069 (1979)).
The omission of additional allegations in the nature of overt acts is not a deficiency, for "a conspiracy indictment under 21 U.S.C. § 846 need not allege any specific overt acts in furtherance of a conspiracy." United States v. Brown, 934 F.2d 886, 889 (7th Cir. 1991). A general request for the overt acts seeks evidentiary material and is an improper discovery request. United States v. Welch, 198 F.R.D. 545, 550 (D.Utah 2001). Of course, the court could order the disclosure of this information if necessary to avoid unfair prejudice or surprise. See United States v. Anderson, 31 F. Supp.2d at 938. It is not necessary for a conviction that a conspirator "`know of the existence or identity of the other members of the conspiracy or the full extent of the conspiracy [as long as he has] a general awareness of both the scope and the objective of the enterprise.'" United States v. Eads, 191 F.3d 1206, 1210 (10th Cir. 1999) (quoting United States v. Evans, 970 F.2d 663, 669-70 (10th Cir. 1992), cert. denied, 507 U.S. 922 (1993)), cert. denied, 530 U.S. 1231 (2000). The government is not obligated to provide information on unindicted coconspirators. See United States v. Guebara, 80 F. Supp.2d 1226, 1229 n. 3 (D.Kan. 2000); United States v. Villata-Gomez, 994 F. Supp. 1322, 1335 (D.Kan. 1998); but see United States v. Anderson, 31 F. Supp.2d at 938 . The court is satisfied that the indictment here meets the minimal due process standards. The indictment is not so vague or incomplete as to prejudice the defendants in anticipating and preparing their defenses or in later asserting double jeopardy protection.
The government asserts that it has supplied the defendants with all discovery material in the case and that it is unaware of any additional evidence or information currently in its possession which has not been supplied to the defendants or been made available for their inspection. The government further represents that this supplied information is all that it possesses on the co-conspirators, aiders and abettors involved in the conspiracies. Also included in this information, according to the government, are the laboratory reports which inform the defendants as to the actual quantity of controlled substances involved in the respective conspiracies. The government points out that it has agreed to reciprocal disclosure of all witnesses prior to trial which should prevent any unfair surprise. A bill of particulars is not required where, as here, the information necessary for one's defense can be obtained through some other satisfactory form. See United States v. Canino, 949 F.2d at 949. Accordingly, the defendant has not met his burden of showing that the failure to grant his request for a bill of particulars would result in prejudicial surprise, would preclude an opportunity for meaningful defense preparation, or would cause double jeopardy problems. The motion for a bill of particulars is denied.
IT IS THEREFORE ORDERED that the defendant Jose Luis Portilla-Sanchez's Motion for Discovery Related to Drug Detection Dog (Dk. 42) and Motion to Disclose Expert Testimony (Dk. 46) are denied for failure to comply with court's guidelines; the Motion for Disclosure of 404(b) and Relevant Conduct Evidence (Dk. 43) is denied as moot; the Motion for Bill of Particulars (Dk. 44) is denied; and the Motion to Join the Defendant J. Santos Duran-Martinez's Motion to Compel Discovery of Informants (Dk. 45) is granted;
IT IS FURTHER ORDERED that the defendant Santos Duran-Martinez's Motion to Compel Disclosure of Existence and Substance of Promises of Immunity, Leniency or Preferential Treatment (Dk. 39) and Motion for Discovery and Inspection (Dk. 40) are denied for failure to comply with court's guidelines; the Motion for Disclosure of Informing Regarding Prior or Subsequent Bad Acts (Dk. 38) is denied as moot; and the Motion Adopting other Co-Defendants' Pretrial Motions (Dk. 41) is granted;
IT IS FURTHER ORDERED that the defendant J. Santos Duran-Martinez's Motion to Compel Disclosure of Existence and Substance of Promises of Immunity, Leniency or Preferential Treatment (Dk. 36) and Motion to Compel Discovery of Informants (Dk. 37) are denied for failure to comply with court's guidelines.