Doc 47 OCR extract - part 4: GOVERNMENT'S OMNIBUS RESPONSE TO DEFENDANT MANGIAPANE'S PRE-TRIAL MOTIONS
F. The Government Does Not Oppose the Defendant's Request for a Pretrial Conference
The defendant has asked the Court to set a time at least thirty days prior to trial for a pretrial conference pursuant to Fed. R. Crim. P. 17.1 (D.I. 41). The government does not oppose the general request for a pretrial conference in this matter, and defers to the Court on the question of when such a conference should be held.[8]
The defendant's motion states that during such a conference the Court should "make a complete record as to what efforts the prosecutor has made to search for the items requested by the Motions" filed by the defendant. The government opposes this request. The government is charged with complying with its discovery obligations, whether imposed by statute, rule, or Order of this Court. The government is not required to make a record of what steps it has taken to comply with those obligations, and the defendant has cited no legal basis for such a request. See Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987); United States v. Leung, 40 F. 3d 577, 582 (2d Cir. 1994) ("Typically, the prosecution itself makes the initial determination as to what evidence must be disclosed to the defense."). Unless the defendant becomes aware of specific Brady material that has been withheld, and brings that evidence to the Court's attention, the government's determination on disclosure in the pre-trial context is generally regarded as final. See Ritchie, 480 U.S. at 59; United States v. Ramos, 27 F.3d 65, 71 (3d Cir. 1994).
Accordingly, to the extent that the Court grants any of the defendant's motions, this request for a record as to the efforts made by the government to comply with its discovery obligations should be denied.
[8]The government respectfully submits that the Court also should conduct a hearing at its earliest convenience to colloquy the defendant on his intention to proceed pro se.
G. The Defendant's Motion for a Bill of Particulars Should be Denied
The indictment in this case in twenty-seven pages in length. The securities fraud conspiracy counts (Counts 1 and 6) detail the alleged manner and means, and allege eighteen (18) and twenty-one (21) overt acts, respectively. The money laundering conspiracy counts (Counts 4 and 9) similarly identify with specificity the manner and means, and allege eight (8) and eleven (11) overt acts, respectively.[9]
Despite this detail, the defendant argues that "no information has been provided regarding the nature and scope of the conspiracy," see Motion for Bill of Particulars (D.1. 42) at 2, and that the indictment lacks specificity. He seeks a bill of particulars pursuant to Fed. R. Crim. P. 7(f) as a remedy for these alleged deficiencies.[10] A cursory review of the indictment demonstrates that these claims are without merit. Moreover, for the reasons set forth below, the Court should not order a bill of particulars in this case.
[9]The defendant's motion asserts that "Counts 1, 2, and 3 do not name Defendant Mangiapane." Motion for Bill of Particulars at 3. This is incorrect. Defendant Mangiapane is named as a defendant in Count 1. See indictment at II 6 (charging paragraph), 7 (manner and means). Mangiapane is not named as a defendant in Counts 2 and 3.
[10]Local Rule 5(d)(2) requires a defendant seeking discovery under Fed. R. Crim. P. 7(f) to confer with counsel for the government before filing his motion. The Local Rule further provides that the Clerk shall not accept for filing any discovery motion under rule 7(f) that is not accompanied by a certification of compliance with this meet and confer requirement. The defendant did not confer with the government prior to filing his motion, nor did his motion contain a certification of compliance with Local Rule 5(d)(2).
11. Applicable Law
The basic law concerning bills of particulars in this circuit is well-established. Bills of particulars are governed by Rule 7(f) of the Federal Rules of Criminal Procedure, which places the resolution of the defendant's motion squarely within this Court's discretion. See Fed. R. Crim. P. 7(f); United States v. Armocida, 515 F.2d 49, 54 (3d Cir. 1975). As this Court held in United States v. Stewart, 2003 WL 21730636 at *1 (D. Del. July 23, 2003) (Faman, J.), a bill of particulars should not be granted so long as the indictment provides the "minimum amount of information necessary to permit the defendant to conduct his own investigation." See also United States v. Smith, 776 F.2d 1104, 1111 (3d Cir. 1985).[11]
[11]Put differently, rule 7(f) motions should be granted only when the indictment fails to provide factual or legal information in a manner that significantly impairs the defendant's ability to prepare his defense, or is likely to lead to prejudicial surprise at trial. See United States v. Rosa, 891 F.2d 1063, 1066 (3d Cir. 1989).
A bill of particulars is not a discovery device. Stewart, supra. As a Judge of this Court wrote in 1971:
Thus, it is not the function of a bill of particulars to fully inform the defendant of the evidence which the government will present. Of necessity, therefore, while one of its legitimate functions may be to reduce the role of surprise in criminal cases, it will not do to say that the rule must be applied to shield defendants from the possibility of confrontation with unanticipated evidence. Nor is the rule intended to give the defendant the benefit of the government's investigative efforts.
United States v. Manetti, 323 F. Supp. 683, 695 (D. Del. 1971). Accordingly, courts have been generally reluctant to grant motions for bills of particulars. See 24 James Wm. Moore et al., Moore's Federal Practice at § 607.07 (3d ed. 1999). This is for numerous reasons. First, a bill of particulars is not intended to be the equivalent of interrogatories in civil practice, and defendants should not be permitted to circumvent the limits of discovery established by the Rules of Criminal Procedure. See United States v. Almodovar, 1996 WL 700267 (D. Del. Nov. 26, 1996) at *4. It is "firmly established" that the defendant is not entitled to a "wholesale discovery of the government's evidence" or a list of its prospective witnesses. United States v. Boffa, 513 F. Supp. 444, 485 (D. Del. 1980). Indeed, the Third Circuit has emphasized that "a bill of particulars, unlike discovery, is not intended to provide the defendant with the fruits of the government's investigation . . . . Rather, it is intended to give the defendant only that minimum amount of information necessary to permit the defendant to conduct his own investigation." United States v. Smith, 776 F.2d 1104, 1111 (3d Cir. 1985) (internal citations omitted); see also Stewart, supra.
Second, courts want to avoid the inherent unfairness of "freezing" the government's evidence in advance of trial. See United States v. Rosa, 891 F.2d 1063, 1066 (3d Cir. 1989); Boffa, 513 at 485. Such "freezing" comes about because the government's proof at trial must conform to the particulars furnished in a bill. Boffa, 513 F. Supp. at 485. The government is not required to "weave all the information at its command into a warp of fully integrated trial theory for the benefit of the defendants" prior to trial, especially when that theory commits the government to a particular presentation of its proof. Id. Similarly, it is not necessary for the government in a conspiracy case to disclose "the precise details that a defendant and his alleged co-conspirators played in forming and executing a conspiracy or all the overt acts the government will prove in establishing a conspiracy." Almodovar, 1996 WL 700267 at *4.
In an effort to balance these considerations, this Court may consider not only the indictment when determining if a bill of particulars is appropriate, but also all of the information that otherwise has been made available to the defendant. See, e.g., United States v. Mariani, 90 F. Supp. 2d 574, 592 (M.D. Pa. 2000). In other words, the defendant's access to discovery weakens the case for a bill of particulars. United States v. Urban, 404 F.3d 754, 772 (3d Cir. 2005). Accordingly, "when discovery provided by the government fills in the outline of the indictment, the necessity for a bill of particulars declines." United States v. Sourlis, 953 F. Supp. 568, 578 (D.N.J. 1996) (citing Boffa); United States v. Caruso, 948 F. Supp. 382, 393-94 (D.N.J. 1996) (finding that discovery materials provide defendant with adequate information and denying motion for bill of particulars).
2. The Indictment is Sufficient on its Face
In light of these legal principles, there is no significant need for a bill of particulars in this case. The various conspiracy charges specifically allege the dates on which the offenses occurred, identify the manner and means of the conspiracies, and set forth lengthy lists of overt acts. These allegations provide considerably more detail than the broad language found to be sufficiently specific in United States v. Almodovar, 1996 WL 700267 (D. Del. Nov. 26, 1996).[12] Moreover, the discovery being provided to the defendant more than adequately provides him with enough information to adequately inform him of the nature of the charges, to prepare his defenses, to avoid surprise at trial, and to protect him against a second prosecution for an inadequately described defense.
[12]The charge in Almodovar read, in relevant part:
From in or about December 1994 and continuing through on or about September 4, 1996, in the State and District of Delaware and elsewhere, [the defendants] did knowingly conspire with each other and unindicted co-conspirators known and unknown to the Grand Jury to distribute and mixture containing cocaine base, a/lcia/ "crack" cocaine and a mixture containing cocaine....
1996 WL 700267 at *I.
The issue in this case is analogous to that before the Court in Almodovar, in which the defendant was indicted on a narcotics conspiracy charge, and subsequently moved for a bill of particulars. Among the defendant's requests was a demand for the exact dates and times or dates and periods of time when he allegedly conspired to distribute crack and cocaine. Almodovar, 1996 WL 700267 at *3-4. The Court denied each of the defendant's requests. See id. at *5-6.
The Almodovar court expressly rejected a request for the identification of the times, places, dates, and amounts of controlled substances transported by the defendant or his co-conspirators, on the basis that it fell "in the category of cases in which the answers will freeze the government's case." Almodovar, 1996 WL 700267 at *5-6.
The Almodovar reasoning applies directly to this case. As with the indictment in Almodovar, the indictment in this case provides a sufficient statement of the period of the conspiracy to permit the defendant to prepare his defense. See Ahnodovar, 1996 WL 700267 at *5. Moreover, "[e]videntiary details pertaining to the inception and termination of the alleged conspiracy and the particular defendant's participation therein need not be required of the government." Mariani, 90 F. Supp. 2d at 592. Similarly, this Court in Boffa also rejected the defendant's request for a bill of particulars requiring the government to "disclose the detailed information concerning the dates each person entered and left the conspiracy. . . ." Boffa, 513 F. Supp. at 485. The indictment provides more than the minimum amount of information necessary to permit the defendant to conduct his own investigation, see Stewart, supra, and thus the Court should deny the defendant's request for "evidentiary minutia," see id., in this case.
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Doc 47 OCR extract - part 4
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