Opinion
No. 01-40074-01-SAC.
December 18, 2001.
MEMORANDUM AND ORDER
The case comes before the court on the defendant's following pretrial motions: Motion for Bill of Particulars (Dk. 75) and Motion for Notice of Co-Conspirator Statements (Dk. 77). The government has filed its written response to these motions. (Dk. 84). Neither motion raises any matters requiring the introduction of evidence, and both can be decided on the arguments fully briefed therein. Without delaying its ruling for oral argument, the court promptly issues this order as its ruling on both pending motions.
MOTION FOR BILL OF PARTICULARS
The defendant seeks a bill of particulars identifying those persons who are known by the government, were identified to the grand jury, and are alleged now to be part of the conspiracy charged in Count 9 of the Superseding Indictment. The defendant is the only person named in Count 9. No other persons are identified by name as co-conspirators in Count 9. The defendant argues that without notice of the other co-conspirator(s) this count fails to provide him with adequate notice to prepare a defense. Citing United States v. Anderson, 31 F. Supp.2d 933, 937 (Kan. 1998), the defendant argues he is entitled to know who are the unidentified co-conspirators alleged in the government's factual theory. The government opposes this motion saying that the indictment sufficiently alleges the elements of the charged offense, that it has supplied all reports from the investigative file, that the discovery provided to date supplies the defendant with the requested information, and that it has furnished the defendant as of December 17, 2001, with a copy of Michelle Warren's grand jury testimony which comprises the factual basis for the conspiracy charge in Count 9.
Rule 7(c) of the Federal Rules of Criminal Procedure requires that an indictment be merely a "plain, concise and definite written statement of the essential facts constituting the offense charged." 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). An indictment is held only to minimal constitutional standards. United States v. Edmonson, 962 F.2d 1535, 1541 (10th Cir. 1992). The sufficiency of an indictment is judged "by practical rather than technical considerations." Id. The district court has broad discretion in deciding a motion for bill of particulars. Id.
"`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, to minimize surprise at trial, and to enable him to plead double jeopardy in the event of a later prosecution for the same offense.'" Dunn, 841 F.2d at 1029 (quoting United States v. Cole, 755 F.2d 748, 760 (11th Cir. 1985)); see United States v. Ivy, 83 F.3d 1266, 1281 (10th Cir.) ("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.") (quoting United States v. Levine, 983 F.2d 165, 166-67 (10th Cir. 1992)) (citations and internal quotation marks omitted), cert. denied, 519 U.S. 901 (1996); United States v. Kunzman, 54 F.3d 1522, 1526 (10th Cir. 1995). "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 at 938 (citing United States v. Wright, 826 F.2d 938, 943 (10th Cir. 1987) (citing 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))). The district court has broad discretion in deciding a motion for bill of particulars. United States v. Edmonson, 962 F.2d at 1541.
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. Dunn, 841 F.2d at 1029. 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). It is not necessary for a conviction that a conspirator "`know of the existence or identity of the other members 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 (Kan. 2000); United States v. Villata-Gomez, 994 F. Supp. 1322, 1335 (Kan. 1998); but see United States v. Anderson, 31 F. Supp.2d at 938 .
In this case, the indictment contains the essential elements of the offense charged and fairly informs the defendant of the charges against which he must defend. Additionally, the government asserts that all of the information requested in the motion for bill of particulars can be found in the discovery already furnished and that it "knows of no supplemental or additional information that it has not already provided or agreed to provide in the future." (Dk. 84, p. 5). The government further represents that it recently provided the grand jury transcript of the witness's testimony establishing the factual basis for this conspiracy charge. 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 928, 949 (7th Cir. 1991), cert. denied, 504 U.S. 910 (1992). Accordingly, the defendant has not met his burden to show that failure to grant his request 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.
MOTION FOR NOTICE OF CO-CONSPIRATOR STATEMENTS
Pointing to the conspiracy charged in Count 9, the defendant moves the court for an order requiring the government to identify any co-conspirator statements that the government intends to offer pursuant to Fed.R.Evid. 801(d)(2)(E). If the government intends to offer such statements, then the defendant believes he is entitled to a pretrial James hearing to determine the admissibility of those statements. The defendant remarks this request is particularly appropriate because the government has not named any co-conspirators. Thus, the defendant asks the government to identify the co-conspirators and any statements allegedly made by them that would be admissible under this hearsay exception. Finally, the defendant asks for a James hearing on those statements. The government responds that it is unaware of any co-conspirator statements other than those already disclosed in discovery. Should it become aware of any other specific co-conspirator statements, the government affirms its obligation to disclose the same to the defendant at the earliest opportunity.
Under Rule 801(d)(2)(E) of the Federal Rules of Evidence, a statement is not hearsay if it is made by "a coconspirator of a party during the course and in furtherance of the conspiracy." Before a co-conspirator's statement can be admitted pursuant to Rule 801(d)(2)(E), the trial court must determine by a preponderance of the evidence that: (1) that a conspiracy existed; (2) that the declarant and the defendant were both members of the conspiracy; and (3) that the statements were made in the course of and in furtherance of the conspiracy. United States v. Sinclair, 109 F.3d 1527, 1533 (10th Cir. 1997). In deciding whether the prerequisites for admission of the co-conspirator's out-of-court statement have been satisfied, the court may consider the hearsay statement sought to be admitted in addition to the independent evidence presented. Id.; United States v. Johnson, 911 F.2d 1394, 1403 (10th Cir. 1990), cert. denied, 498 U.S. 1050 (1991). "`[T]here need only be some independent evidence linking the defendant to the conspiracy.'" United States v. Lopez-Gutierrez, 83 F.3d 1235, 1242 (10th Cir. 1996) (quoting United States v. Martinez, 825 F.2d 1451, 1453 (10th Cir. 1987)). To be sufficient, the independent evidence need not be substantial, but it must be something other than the proffered statement. Id.
The Tenth Circuit has expressed a "strong preference" for the district court to conduct a James hearing in determining admissibility, but it has never held that such hearings are mandatory. United States v. Gonzalez-Montoya, 161 F.3d 643, 649 (10th Cir. 1998), cert. denied, 526 U.S. 1033 (1999). A trial court may determine the admissibility requirements prior to or during trial in a James hearing outside of the presence of the jury, or it may provisionally admit the statement subject to proof at trial that connects up the statements to the predicate conspiracy elements. Id.; see also United States v. Powell, 982 F.2d 1422, 1432 (10th Cir. 1992), cert. denied, 507 U.S. 946 (1993); United States v. Hernandez, 829 F.2d 988, 994 (10th Cir. 1987) ("[D]ue to intertwining nature of the non-hearsay testimony and the challenged statements," the court was justified in provisionally admitting the statements in lieu of following the preferred procedure), cert. denied, 485 U.S. 1013 (1988). "It is preferable that the court make these determinations before allowing the co-conspirator statements to be heard by the jury. When these determinations are made pre-trial, the district court should reaffirm its findings at the conclusion of the presentation of the Government's evidence at trial." United States v. Nicholson, 983 F.2d 983, 991 (10th Cir. 1993) (quoting United States v. Wright, 932 F.2d 868, 880 (10th Cir.) (citations omitted), cert. denied, 502 U.S. 962 (1991)).
"`[I]n certain instances where it is not "reasonably practicable to require the showing to be made before admitting the evidence, the court may admit the statements subject to being connected up."'" United States v. Cardall, 885 F.2d 656, 669 (10th Cir. 1989) (quoting United States v. Petersen, 611 F.2d 1313, 1330 (10th Cir. 1979) (quoting in turn United States v. James, 590 F.2d 575, 582 (5th Cir. (en banc), cert. denied, 442 U.S. 917 (1979)), cert. denied, 447 U.S. 905 (1980)). The decision to deviate from the preferred procedure resides within the trial court's sound discretionary judgment, but absent a substantial reason the preferred order of proof should be followed. United States v. Troutman, 814 F.2d 1428, 1448 (10th Cir. 1987). This exercise of discretion is often based "on the particular configuration of the government's evidence and the constraints of a multi-defendant trial." United States v. Roberts, 14 F.3d 502, 514 (10th Cir. 1993). If it does not hold a James hearing, the district court must at least make preliminary factual findings on the record regarding the admissibility of the statements. See United States v. Perez, 989 F.2d 1574, 1580 (10th Cir. 1993) (en banc).
The preferred procedure is followed if it occurs either in a pretrial proceeding or during trial before admission of the coconspirator statement. United States v. Hernandez, 829 F.2d at 994. A "defendant thus has no distinct right to a pretrial hearing with regard to the conspiracy determination." Id. (citing in part United States v. Monaco, 700 F.2d 577, 581 (10th Cir. 1983) ("a trial court has no obligation to determine admissibility of possible hearsay at the pretrial stage.")). "At times, the court will be able to make its determination on the basis of proffers or even on the opening or what it knows of the available proof from the pretrial or suppression hearings." 1 Weinstein's Evidence ¶ 104[05] at 104-56 (1986). A district court did not abuse its discretion in denying a pretrial James hearings when "the pretrial hearing would have taken approximately one week and would have involved recalling the officers, witnesses, and counsel in a complicated and repetitive procedure," Hernandez, 829 F.2d at 994.
In many cases, this court has found that during trial it is in a better position to analyze the admissibility of co-conspirator statements. Neither side has identified the number or nature of the co-conspirator statements likely to be offered in this case. Considering the charges and circumstances of this case, the court questions whether a pretrial evidentiary hearing is necessary here. Unless the defendant offers additional reasons for a pretrial hearing, the court will take up the defendant's evidentiary objections at trial. During the trial the court may require the government to present evidence by proffer or otherwise prior to receiving evidence containing co-conspirator statements." The government shall not mention during voir dire or opening argument any co-conspirator's statements or seek to introduce co-conspirator statements without first approaching the bench.
IT IS THEREFORE ORDERED that the defendant's Motion for Bill of Particulars (Dk. 75) and Motion for Notice of Co-Conspirator Statements (Dk. 77) are denied.