Opinion
No. 02-40012-01-SAC
June 20, 2002
MEMORANDUM AND ORDER
This case comes before the court on the defendant's following four pretrial motions: Demand for Notice of Evidence to be offered pursuant to Rule 404(b) (Dk. 18, Motion to Disclose Expert Testimony (Dk. 19), Motion for Bill of Particulars (Dk. 20, and Motion to Dismiss Indictment (Dk. 22. The government has filed a consolidated response to the defendant's motions. (Dk. 15. The court heard counsels' oral argument concerning these motions on May 16, 2002. Having reviewed all matters submitted and researched the law relevant to these issues, the court is ready to rule.
INDICTMENT
The grand jury returned a single count indictment against the defendant on January 30, 2002. This count charges that on August 29, 2000, in the District of Kansas, involving a matter within the jurisdiction of the Department of Housing and Urban Development ("HUD"), the defendant knowingly and willfully made a false representation in signing the "Application/Tenant Certification" wherein he represented that all information he provided concerning his net income and assets for purposes of determining his eligibility for participation in the public housing program was accurate and complete to the best of his knowledge. The indictment further alleges that the defendant knew that he had furnished inaccurate and incomplete information about his income and assets to the City of Topeka Housing Authority.
Demand for Notice of Evidence (Dk. 18)
The government responds that it has provided the defendant with reports regarding his criminal history and other discovery information which the government intends to offer in showing the defendant's intent, knowledge, and common plan or scheme. At the hearing, the defendant said he was satisfied with the government's response and asked for no judicial intervention. The court denies the defendant's request as moot.
Motion to Disclose Expert Testimony (Dk. 19)
The government responds that it agrees to provide the requested information if any expert witness is called. At the hearing, the defendant accepted the government's representation and asked for no judicial ruling. The court denies the motion as moot.
Motion to Dismiss Indictment (Dk. 22)
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)). "`It is generally sufficient that an indictment set forth an offense in the words of the statute itself, as long as those words themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.'" Tillman v. Cook, 215 F.3d 1116, 1132 (10th Cir.) (quoting Hamling v. United States, 418 U.S. 87 (1974) (quotation omitted)), cert. denied, 531 U.S. 1055 (2000). "`The test of the validity of an indictment is not whether the indictment could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards.'" United States v. Gama-Bastidas, 222 F.3d 779, 785 (10th Cir. 2000) (quoting United States v. Fitzgerald, 89 F.3d 218, 222 (5th Cir.), cert. denied, 519 U.S. 987 (1996)).
The elements of an offense under 18 U.S.C. § 1001 are as follows: "`that (1) the defendant made a statement; (2) the statement was false, fictitious, or fraudulent as the defendant knew; (3) the statement was made knowingly and willfully; (4) the statement was within the jurisdiction of the federal agency; and (5) the statement was material.'" United States v. Harrod, 981 F.2d 1171, 1175 (10th Cir. 1992) (quoting United States v. Irwin, 654 F.2d 671, 675-76 (10th Cir. 1981), cert. denied, 455 U.S. 1016 (1982)), cert. denied, 508 U.S. 913 (1993). The indictment here alleges the essential facts for each of the elements. The indictment informs the defendant that the statement he signed on August 29, 2000, entitled "Application/Tenant Certification" was false in representing that he had provided accurate and complete information concerning his net income and assets. The indictment further alleges that the defendant knowingly and willfully made this false statement for a matter within the jurisdiction of HUD and that this statement was made for purposes of determining the defendant's eligibility for participation in the public housing program.
The defendant complains that the indictment does not inform him how or why his representation or affirmation was not true. More specifically, the defendant believes the indictment must allege the "exact nature" of the false statements or omissions made concerning his income and assets. The court believes "[i]t is simply asking too much of the indictment to require an allegation of the particular statements" or omissions that the government intends to prove are false at trial. See United States v. Wood, 958 F.2d 963, 976 (10th Cir. 1992). The indictment here puts the defendant on fair notice of the charge against him, though it does not allege with particularity the underlying representations or omissions causing the defendant's affirmation to be false.
Motion for Bill of Particulars (Dk. 20)
"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).
As stated earlier, the indictment contains the essential elements of the offense charged and fairly informs the defendant of the charges against which he must defend. The defendant argues the indictment fails to specify "(1) what particular facts were allegedly false, (2) to whom the alleged false statements were made, (3) when they were made, or (4) whether they were oral or written." (Dk. 21, p. 1). The government asserts the indictment answers each of those questions: (1) "information concerning the defendant's assets and income was neither true nor complete," (2) "the false statements were made to representatives of the City of Topeka Housing Authority," (3) "the statement was made on August 29, 2000," and (4) "the defendant `signed an `Application/Tenant Certification' from the City of Topeka Housing Authority" containing the false representation. (Dk. 25, pp. 9-10).
Additionally, the government points out that all of the information requested is further found in the approximately 100 pages of discovery already furnished the defendant. The government represents that it has provided almost every piece of documentary evidence it has and that it has given the defendant access to the relevant files of the Topeka Housing Authority. The government spells out that the false statement is limited to the certification period from August 1999 through August 2000 and that it refers to his failure to report approximately $27,000 in income from Skyview Systems and workers' compensation benefits. The government notes that the defendant in his re-certification for eligibility claimed his only income came from social security benefits paid to his wife. Thus, his false statement about the extent of his income and his failure to report additional income "is the government's case in a nutshell." (Dk. 25, p. 12). Based on what the government has provided already in discovery and on what the government has clarified in its response, the court finds that 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.
IT IS THEREFORE ORDERED that the defendant's Demand for Notice of Evidence to be offered pursuant to Rule 404(b) (Dk. 18) is denied as moot;
IT IS FURTHER ORDERED that the defendant's Motion to Disclose Expert Testimony (Dk. 19) is denied as moot;
IT IS FURTHER ORDERED that the defendant's Motion for Bill of Particulars (Dk. 20) is denied; and
IT IS FURTHER ORDERED that the defendant's Motion to Dismiss Indictment (Dk. 22) is denied.