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BILL OF PARTICULARS R. CRIM. P. Rule 7(f)

The purpose of the Bill of Particulars is to provide the defendant with details of the alleged offense which are omitted from the pleading against him and which are necessary to enable a defendant to understand the charges against him (as guaranteed by the Sixth Amendment to the Constitution) and to protect himself from double jeopardy (as guaranteed by the Fifth Amendment of the Constitution). MOORE’S FEDERAL PRACTICE § 7.06[1]; US v. Leach, 427 F.2d 1107, 1110 (1^st Cir. 1970), cert. den., 400 US 829; US v. Schenbari, 884 F.2d 901 (4^th Cir. 1973); US v. Moore, 57 F.R.D. 640 (N.D. Ga. 1972). While technically the Bill of Particulars is not a discovery device, Cooper v. US, 282 F.2d 257, 532 (9^th Cir. 1960); US v. Rosenberg, 10 F.R.D. 521, 523 (S.D.N.Y. 1950); US v. Long, 440 F.2d 288 (8^th Cir. 1971); it has the practical effect of disclosing information to the accused which is unavailable otherwise.

This broader discovery function of the Bill of Particulars has been recognized by an increasing number of courts.

US v. Dolan, 113 F. Supp. 757, 759 (D.D.C. 1953);

US v. Rosenfield, 264 F. Supp. 760 (N.D. Ill. 1967);

US v. Smith, 16 F.R.D. 372, at p. 374 (W.D. Mo. 1954);

US v. Addonizi, 451 F.2d 49, at p. 64, n. 16 (3d Cir. 1972), cert. den. 465 US 936; 3 WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL § 129 at 281.

 

The Motion for a Bill of Particulars must be filed within 10 days after arraignment and a court may, within its discretion, refuse to hear a tardy motion, MOORE’S FEDERAL PRACTICE

• 7.06[3]; Advisory Committee Note to FED. R. CRIM. P. Rule 7(f). The Motion should cite the deficiencies of specific counts of the indictment and be accompanied by a brief in support thereof. While “cause” need no longer be shown in order to obtain a Bill of Particulars, see Advisory Committee Note to FED. R. CRIM. P. Rule 7(f) F.R.Cr.P]; the question of granting or denying a bill is still left to the trial court’s discretion. MOORE’S FEDERAL PRACTICE § 7.06[2]; WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL § 129 at 281.

However, such Bill of Particulars should be liberally construed. Walsh v. US, 371 F.2d 436, 437 (1^st Cir. 1967); US v. Addonizio, 451 F.2d 49 (3^rd Cir. 1971), cert. den., 405 US 936. The test for granting a Bill of Particulars has been described as whether such information is necessary for the defendant to adequately prepare for trial and avoid surprise. King v. US, 402 F.2d 289 (10^th cir. 1968); US v. Ahmad, 53 F.R.D. 194, 199 (M.D. Pa. 1971).

Once a Bill of Particulars has been provided by the Government, its proof must conform to that Bill. Thus, a Bill of Particulars not only provides the defendant with additional facts not set out in the indictment, but limits the Government’s proof as well. US v. Neff, 212 F.2d 297, 309 (3d Cir. 1954); US v. Glaze, 313 F.2d 757 (2d Cir. 1963). See contra US v. Lacob, 416 F.2d 756, 759 (7^th Cir. 1969), cert. den., 396 US 1059 (1970); US v. Flom, 558 F.2d 1179 (5^th Cir. 1977).

Once the bill is filed, great caution is necessary to insure the bill is not misleading as to hamper defendant’s preparation and cause unfair surprise. US v. Chavez, 845 F.2d 219 (9^th Cir. 1988), opinion withdrawn on rehearing, U.S. v. Zanzucchi, 892 F.2d 56 (9th Cir. 1989).

The fact that the indictment or information is valid is no defense to a motion for a Bill of Particulars, US v. Faulkner, 53 F.R.D. 299, 310 (E.D. Wis. 1971); the underlying purpose of Rule 7(f) is not to cure defects in the Government’s pleading, but rather to “…furnish the defendant further information respecting the charge stated in the indictment when necessary to the preparation of his defense, and to avoid prejudicial surprise at trial.” US v. White, 16 F.R.D. 371, 375 (W.D. Mo. 1954); US v. Haskins, 345 F.2d 111, 114 (6^th Cir. 1965); Pipkin v. US, 243 F.2d 491 (5^th Cir. 1957); US v. Bearden, 423 F.2d 805, 809 (5^th Cir. 1970).

And, where the information sought is necessary to the preparation of a defense to prevent surprise, then the “…accused is entitled to this ‘as of right’” regardless of whether such disclosure would be privileged otherwise. US v. White, 16 F.R.D. 372 (W.D. Mo. 1954); MOORE’S FEDERAL PRACTICE § 7.06[2]; WRIGHT, FEDERAL PRACTICE AND PROCEDURE:

CRIMINAL § 129 at 282-283. See also US v. US Gypsum, 37 F. Supp. 398, 402 (D.D.C.); Singer

1. US, 58 F.2d 74 (3d Cir. 1932); US v. Allied Chemical & Dye Corp., 42 F. Supp. 425, at p. 428 (S.D.N.Y. 1941); Fontana v. US, 262 F.2d 288 (8^th Cir. 1919).

The broader discovery function of the Bill of Particulars is necessitated by the “presumption of innocence,” since “being presumed to be innocent, it must be assumed “that he is ignorant of the facts on which the pleader funded his charges’.” US v. Smith, 16 F.R.D. 372, 386 (N.D. Mo. 1954); WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL §129 at 286-287. Furthermore, the more limited discovery allowed in criminal cases warrants a more liberal construction of Rule 7(f). WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL § 129 at 281. Liberal construction is particularly applicable in criminal anti-trust cases and tax cases where the issues are more complex than ordinary criminal cases. US v. Bestway Disposal Corp., 681 F. Supp. 1027 (W.D.N.Y. 1988); US v. Bestway Disposal Corp., 681 F. Supp. 1027 (W.D.N.Y. 1988); US v. Earnhart, 683 F. Supp. 717 (E.D. Ark. 1987); US v. Bailey, 689 F. Supp. 1463 (N.D. Ill. 1988).

Bill of Particulars have been granted to provide information regarding the names and addresses of individuals who witnessed the crime. US v. White, 379 F.2d 559 (7^th Cir. 1966); US

1. Debrow, 346 US 374, 378 (1953); Will v. US, 389 US 90 (1967)(compelling disclosure of witness who over heard defendant’s incriminating statements). Such requests should not be conducted as a demand for a “witness-list” but for the “identification of the times , places, and persons present in order to prepare [a] defense.” US v. Smith, 16 F.R.D. 372, 374-75 (W.D. Mo. 1954).

Note the discussion in Will v. US, 389 US 90 (1967). “it is not uncommon for the Government to be required to disclose the names of some potential witnesses in a bill of particulars, where this information is necessary or useful for trial.” (emphasis added). Will v. US, 39 US 90 (1967).

“Without definite specification of the time and place of commission of the overt acts complained of, and of the identity of the person or persons dealt with, there may well be difficulty in preparing to meet the general charges of the information, and some danger of surprise.” US v. Smith, 16 F.R.D. 372 (W.D. Mo. 1954).

Bills of Particulars have been granted to order disclosure of names of individuals who merely have knowledge of the transaction charged, US v. Soloman, 26 F.R.D. 397 (S.D. Ill. 1967);

the specific acts of price fixing or refusals to sell upon which the Government intends to rely in an anti-trust case,

US v. Metropolitan Leather and Find. Ass’n., 82 F. Supp. 449, 454-55 (S.D.N.Y. 1949);

the name of a Government informer who witnesses the criminal act charged,

Rovario v. US, 353 US 63, 64 (1967);

the means employed to commit the alleged offense,

US v. Tucker, 473 F.2d 1290 (6^th Cir. 1973); US v. Burgio, 279 F.2d 843 (S.D. N.Y. 1968);

US v. Baker, 262 F. Supp. 657, 671-72 (D.D.C. 1966); US v. Bel-Mar Laboratories, 284

1. Supp. 873, 888 (E.D.N.Y. 1968);

whether the defendant is charged with aiding and abetting and if so how he is alleged to have aided and abetted,

US v. Baker, 262 F. Supp. 657, 674 (D.D.C. 1966);

when, where and in what manner defendant is alleged to have become a member of a charged conspiracy,

US v. Tanner, 279 F.Supp. 457, 474 (N.D. Ill. 1967);

the names of all alleged co-conspirators not named in the indictment but known to the prosecution,

US v. Tanner, 279 F. Supp. 457, 475 (N.D. Ill. 1967); US v. Baker, 262 F. Supp. 657, 675

(D.D.C. 1966); US v. Pilnick, 267 F. Supp. 791, 801 (S.D.N.Y. 1967); US v. Burgio, 279

1. Supp. 843, 846 (S.D.N.Y. 1968);

any overt acts in furtherance of an alleged conspiracy not specified in the indictment upon which the Government may rely at trial,

US v. Leach, 427 F.2d 1007, 1110 (1^st Cir. 1970), cert. den., 406 US 829;

US v. Pilnick, 267 F. Supp. 791, 801 (S.D.N.Y. 1960); US v. Baker, 262 F. Supp. 657, 675

(D.D.C. 1966); US v. Tanner, 279 F. Supp 457, 478 (N.D. Ill. 1967);

the places where the overt acts of a conspiracy tare alleged to have been performed, US v. Crisona, 279 F.Supp. 457, 475 (S.D.N.Y. 1967);

the particular acts of an alleged conspiracy which each defendant is alleged to have personally performed,

US v. Tanner, 279 F. Supp. 457, 474-76 (N.D. Ill. 1967);

and the names of victims of alleged crimes (not named in the indictment),

US v. Davidoff, 845 F.2d 1151 (2d Cir. 1988); Blumenfield v. US, 284 F.2d 46, 49 (8^th Cir.

1960), cert. den., 365 US 812 (1961); US v. Moore, 57 F.R.D. 640 (N.D. Ga. 1972); US v.

Crisona, 271 F. Supp. 150, 156 (S.D.N.Y. 1967); US v. Caine, 270 F. Supp. 801, 806-807

(S.D.N.Y. 1967);

persons “as to whom [Defendant] occupied a position of organizer, supervisor, or manager.”

US v. Howard, 590 F.2d 564, 567 (4^th Cir. 1979); US v. Sperling, 506 F.2d 1323, 1344-45

(2d Cir. 1974), cert. den., 420 US 962 (1975);

Where an informant is involved and the Government insists on the privilege of nondisclosure of his identity a motion for Bill of Particulars is a proper means of seeking such information.

Disclosure of the identity and whereabouts of an informer is required where the defendant is able to show that such information is “relevant and helpful” to the defense. Rovario v. US, 353 US 53, 60-61 (1957). The Fifth Circuit’s test as to what is “relevant” and “helpful” is whether the informant’s “testimony would lend credence” to the defendant’s theory, and if so, then his “request for disclosure should be granted.” US v. Freund, 525 F.2d 873, 877 (5^th Cir. 1976).

Where the informer is found to have been a participant in the alleged criminal activity then his identity is “relevant and material” to the defense and disclosure should be required, Rovario v. US, 353 US 53 (1957) (noting informant alleged to have purchased narcotics from the defendant); Lopez-Hernandez v. US, 394 F.2d 820 (9^th Cir. 1968) (noting informant introduced defendant to an undercover agent).

Cf.                   US v. Davis, 487 F.2d 249 (5^th Cir. 1973) (stating disclosure not required where informant’s role consisted solely of introducing the defendant to agents).

Normally, no disclosure is required where informant was “mere tipster” who played no part in the prohibited transaction. US v. Clark, 482 F.2d 103 (5^th Cir. 1973); US v. Acosta, 411 F.2d 627 (5^th Cir. 1969). However, where the informant’s credibility is at issue, disclosure may be required even where his testimony is only relevant to the issue of probable cause for an arrest or search. US v. Anderson, 509 F.2d 724, 279 (9^th Cir. 1975).

In a case discussing the effect of the Supreme Court’s opinion in McCrary v. Illinois, 386 US 300 (1967)(upholding a State statutory privilege for the informant’s identity at a preliminary hearing to determine probable cause); the Fifth Circuit noted in US v. Fruend, 525 F.2d 873 (5^th Cir. 1976), that,

“Nevertheless, McCrary does not operate as a bar to ordering disclosure in all probable causes cases…. In a proper case, the trial court may wish to examine the informant to assess his credibility or accuracy.” US v. Fruend, 525 F.2d 873, 877 (5^th Cir. 1976).

See also           Curry v. Estelle, 531 F.2d 1260 (5^th Cir. 1976);

US v. Kiser, 716 F.2d 1268, 1271-2 (9^th Cir. 1983)..

Where the Government is unable to locate an informant whose identity is found to be “relevant and helpful” to eh defense, then such informant’s unavailability for the defense, even if through no fault of the prosecution, violates the Defendant’s constitutional right to “due process” where “…there is a reasonable possibility that, if [the informant] had been available to testify, the defendant would not have been convicted.” US v. Walton, 411 F.2d 283, 288 (9^th Cir. 1969); US

1. Leon, 487 F.2d 389 (9^th Cir. 1973).

If the identity of the informant is “already known” to the defendant then any privilege asserted by the government is irrelevant. US v. Godkins, 527 F.2d 1321 (5^th Cir. 1976); US v. Moreno, 536 F.2d 1042, 1048 n.7 (5^th Cir. 1976).

“If the identity of the informer is admitted or known then there is no reason for pretended concealment of his identity, and the privilege of secrecy would be merely an artificial obstacle of proof.” 8 Wigmore, Evidence, § 2374 at 766 (rev. ed. 1961).

Furthermore, defense counsel should demand that the government articulate the interests it has in resisting disclosure. It is not enough to merely assert that the informant’s identity cannot be disclosed for “security reasons.” And where “the record is silent about the interests which the government may have in resisting disclosure and production” then an “in camera” hearing would be required to make a determination. US v. Fischer, 531 F.2d 783, 788 (5^th Cir. 1976).

The trial court has the discretion to either grant or deny the motion for a Bill of Particulars. US v. Zavala, 839 F.2d 523 (9^th Cir. 1988). No abuse of discretion will be apparent as long as the defendant has a defense available to him.

Where the defense motion for a Bill of Particulars is denied the court should be requested to state the reasons for said denial in writing in order to provide adequate means of review. US v. Wells, 387 F.2d 807, 808 (7^th Cir. 1967).

Also, denial is appropriate in situations where the principal goal of a Bill of Particulars has already been accomplished. US v. Marquez, 686 F. Supp. 1354 (N.D. Ill. 1988).