IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA )
)
v. ) CRIMINAL ACTION
)
xxxxxxxxxxx, JR., ) NO. 1:98-CR-262
______________________________)
MOTION FOR BILL OF PARTICULARS
AND BRIEF IN SUPPORT THEREOF
COMES NOW Defendant, xxxxxxxxxxxxx, JR., by and through undersigned counsel, and respectfully submits this Motion for a Bill of Particulars and Brief in Support Thereof pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure, and requests this Honorable Court enter an Order directing the United States to file a Bill of Particulars to the following matters, persons and places concerning the offense charged in the above-styled indictment. As grounds for this Motion, Defendant shows the following:
(1)
Defendant is charged, along with one other co-defendant, in a two count indictment charging him with conspiracy to violate 18 U.S.C. §1201(a)(1), and with aiding and abetting a kidnapping in violation of 18 U.S.C. §2 and §1201.
(2)
The indictment charges that Mr. xxxxx and his codefendant knowingly and willfully conspire and agree with one another and others known and unkown to unlawfully kidnap and transport a small child in interstates commerce from Georgia to Quebec City, Canada.
(3)
Rule 7(f) of the Federal Rules of Criminal Procedure provides for the filing of a bill of particulars. The purpose of a bill of particulars is to give the defendant more particular information. United States v. Haas, 583 F.2d 216 (5th Cir. 1978). The bill of particulars provides the defendant with information about the details of the charges against him that are necessary to the preparation of his defense and to avoid prejudicial surprise at trial. United States v. Diecidue, 603 F.2d 535 (5th Cir. 1979), cert denied 445 U.S. 946 (1979); United States v. Bascaro, 742 F.2d 1335, 1365 (11th Cir. 1984).
(4)
The Motion is not an attack upon the sufficiency of the indictment. The fact that the indictment is valid is not a defense to a motion for a Bill of Particulars, United States v. Faulkner, 53 F.R.D. 299, 310 (D. Wis. 1971), inasmuch as the underlying purpose of Rule 7(f) of the Federal Rules of Criminal Procedure is not to cure defects in the Government's pleadings. In fact, a Bill of Particulars cannot save an invalid indictment. United States v. Farinas, 299 F. Supp. 852 (S.D.N.Y. 1969).
(5)
The purposes of a Bill of Particulars are to inform the defendant of the nature of the charge against him with sufficient precision to enable him to prepare for trial, to avoid or minimize the danger of surprise at time of trial and to enable him to plead his acquittal or conviction in bar of another prosecution for the same offense when the indictment itself is too vague and indefinite for such purposes.
United States v. Haskins, 345 F.2d 11, 114 (6th Cir. 1965); United States v. Francisco, 575 F.2d 815, 818 (10th Cir. 1978).
(6)
To serve the purposes stated above, Mr. xxxxx requests that this Court order the Government to disclose the following Particulars regarding Count ONE of the above-styled indictment:
a. State all instances in which the government alleges a conspiracy began, including but not limited to the date the alleged conspiracy began, location of the conspiratorial acts, individuals alleged to have participated in the conspiracy, and subsequent dates of activity related to the alleged conspiracy, any dates any conspirators joined the conspiracy.
b. State with as much particularity as possible the individuals, known and unknown by the grand jury alleged to have participated in the conspiracy;
c. State with as much particularity as possible any overt acts conducted by Mr. xxxxx in planning the conspiracy or the kidnaping;
d. State with as much particularity as possible any overt acts conducted by Mr. xxxxx in carrying out the conspiracy or the kidnapping
To serve the purposes stated above, Mr. xxxxx requests that this Court order the Government to disclose the following Particulars regarding Counts ONE and of the above-styled indictment:
a. State with particularity the age, size, length and weight of Samuel Lee Grant Smith at the time he was allegedly kidnapped;
b. State with as much particularity as possible the age, height, weight and physical condition of Randy Edward Burton at the time he was found;
c. State with as much particularity as possible the exact location on Highway 5 where Randy Edward Burton was allegedly abandonned
d. State with as much particularity as possible how the funds or revenue are used by the business establishment, ie. For the local business, or are the funds deposited in the corporate account, etc.
e. State with particularity what percentage of funds, if any, are used for items or costs related to or involving interstate commerce and what the items or costs are.
f. State with as much particularity as possible in what ways the alleged robberies affected interstate commerce either directly or indirectly.
(7)
In these requests for Particulars, Defendant is not asking the government to reveal its list of witnesses nor all of the evidence upon which its case is based. Rather, the Defendant is merely attempting to adequately prepare for the defense of his case.
A defendant is presumed innocent upon his plea of not guilty and it cannot be assumed by the Court that the defendant knew the particulars sought in a Motion for Bill of Particulars. The defendant can only be considered ignorant of the facts on which the Government founds its charges. United States v. Tucker, 262 F. Supp. 305, 307 (S.D.N.Y. 1960). United States v. Burgio, 279 F. Supp. 843, 846 (S.D.N.Y. 1968).
WHEREFORE, it is respectfully requested that this Court exercise its sound discretion and order the United States to provide the particulars requested herein so as to assure that the Defendant may adequately prepare for trial and avoid prejudicial surprise.
This ___ day of August, 1998.
Respectfully submitted,
___________________________________
MARGARETH ETIENNE
STATE BAR NO. 251023
Attorney for xxxxx WADE xxxxx, JR.
Federal Defender Program, Inc.
Suite 3512
101 Marietta Tower
Atlanta, Georgia 30303
404/688-7530
CERTIFICATE OF SERVICE
This is to certify that I have this day served a copy of the foregoing Motion to Preserve Evidence and Brief in Support upon:
Chris Wray, Esquire
Assistant United States Attorney
1800 Richard B. Russell Building
75 Spring Street, S.W.
Atlanta, Georgia 30335
by hand delivery.
This ________ day of August, 1998.
___________________________________
MARGARETH ETIENNE
STATE BAR NO. 251023
Attorney for xxxxx WADE xxxxx, JR.
Federal Defender Program, Inc.
Suite 3512, 101 Marietta Tower
Atlanta, Georgia 30303
404/688-7530
Respectfully submitted,
___________________________
SANDRA MICHAELS
ATTORNEY FOR xxxxx xxxx xxxxx, JR.
STATE BAR NO. 504014
84 Peachtree St.
Suite 701, Flatiron Building
Atlanta, Georgia 30303
(404) 681-0400
CERTIFICATE OF SERVICE
This is to certify that I have this day served a copy of the foregoing Motion for a Bill of Particulars and Brief in Support thereof upon:
Sheila Tyler, Esq.
Assistant United States Attorney
1800 Richard B. Russell Building
75 Spring Street, S. W.
Atlanta, Georgia 30335
by hand delivering a copy of the same.
This ___ day of November, 1996.
___________________________
SANDRA MICHAELS
ATTORNEY FOR xxxxx, JR. STATE BAR NUMBER: 504014
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