IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES )
)
v. ) Criminal No. xx-159-01 (PLF)
)
xxxxxxxxxxxxxxxxxxxxxxx, )
)
Defendant. )
_________________________ )
DEFENDANT'S MOTION FOR A BILL OF PARTICULARS
Defendant, by and through undersigned counsel, and pursuant to Fed. R. Crim. P. 7(f), and the Fifth and Sixth Amendments to the United States Constitution, hereby move this Court for an order compelling the government to file a bill of particulars, setting forth the following:
COUNT 1 (Conspiracy)
1. Identify the specific locations "elsewhere" where the conspiracy functioned.
2. Identify the "unindicted" co-conspirators with whom the defendant conspired who are "known" to the grand jury.
3. Identify all overt acts not listed in the indictment but upon which the government may rely at trial.
4. Identify the transactions which provide the basis for the allegation that the alleged conspiracy involved greater than 50 grams of cocaine base.
5. Identify the manner and means of the conspiracy.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
__________________________
L. Barrett Boss
Assistant Federal Public Defender 625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
(202) 208-7500
Counsel for Mr. Winnegan
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES )
)
v. ) Criminal No. xx-159-01 (PLF)
)
xxxxxxxx xxxxxxxxxxxxxxxx, )
)
Defendant. )
_________________________ )
MEMORANDUM OF LAW
IN SUPPORT OF DEFENDANT'S MOTION
FOR A BILL OF PARTICULARS
Defendant xxxxxxxx submits that this Court should, pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure, grant defendant's motion for a bill of particulars as requested. The information sought by the defendant's motion is necessary to enable him to prepare an effective defense to the government's broad based conspiracy allegations. Accordingly, this Court should, following applicable precedent, order the government to provide the requested bill of particulars.
A bill of particulars is "appropriate to permit a defendant to identify with sufficient particularity the nature of the charge against him, thereby enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted for the same offense." United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. l988) (quoting United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. l987). All of these purposes will be served by a bill of particulars in this case.(1)
For example, all of the requested particulars address the government's broad-ranging and ill-defined conspiracy allegations in Count One of the Indictment. The need for a bill of particulars in cases involving such broad conspiratorial allegations is well recognized. See United States v. Hubbard, 474 F. Supp. 64, 81 (D.D.C. 1979) (Ordering the government to provide a list of all unindicted co-conspirators and all overt acts in furtherance of the conspiracy but not named in the indictment); See also United States v. Mannino, 480 F. Supp. 1182, 1185 (S.D.N.Y. 1979) (Ordering bill of particulars with regard to overt acts).
In AUSA Gellar's discovery letter, he noted that the government did not plan on introducing any evidence pursuant to Fed. R. Evid. 404(b); however, at the same time, he indicated the government's intention to admit the "other crimes" evidence as overt acts of the conspiracy. As set forth in a separately filed motion, the government should not be permitted to circumvent Rule 404(b) by contending that other bad act evidence is admissible as an overt act in furtherance of the conspiracy. No matter what the government calls these uncharged bad acts, it is clear that the defense should have specific notice sufficient to permit Mr. Winnegan's counsel to investigate the allegations and to prepare a defense to them.
Sound judicial administration requires pretrial notice of the intention to use other uncharged crimes evidence. Thus, in fairness to the accused and to this Court, the defendants' motion should be granted.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
__________________________
L. Barrett Boss
Assistant Federal Public Defender 625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
(202) 208-7500
Counsel for Mr. Winnegan
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES )
)
v. ) Criminal No. xx-159-01 (PLF)
)
xxxxxxxxx xxxxxxxxxxxxxx, )
)
Defendant. )
_________________________ )
O R D E R
Upon consideration of Defendant xxxxxxxxxx Motion For A Bill of Particulars, the government's Response thereto, and the entire record in this matter, it is this ________ day of _____________, 1997, hereby
ORDERED that defendant xxxxxxxxx Motion is granted; and it is further
ORDERED that the government immediately provide the requested information responsive to the defendant's bill of particular's motion.
PAUL L. FRIEDMAN
U.S. DISTRICT JUDGE
Copies to:
L. Barrett Boss Mark Gellar
625 Indiana Avenue, N.W. Assistant U.S. Attorney
Suite 550 555 4th Street, N.W.
Washington, D.C. 20004 Washington, D.C. 20001
CERTIFICATE OF SERVICE
I hereby certify that on the 7th day of May 1997, the foregoing Motion and Memorandum were served by hand upon:
Mark Gellar
Office of the United States Attorney
for the District of Columbia
555 - 4th Street, N.W.
Washington, D.C. 20001
L. Barrett Boss
Assistant Federal Public Defender
1. The government may not respond that the defendants should know the particulars demanded, for they are presumed to be innocent; in any event, the request for a bill of particulars is aimed at the facts as alleged by the government, not as they may have actually occurred. United States v. Ramirez, 602 F. Supp. 783 (S.D.N.Y. 1985); United States v. Tanner, 279 F. Supp. 457, 474 (C.D. Ill. 1967); United States v. Tucker, 262 F. Supp. 305, 307 (S.D.N.Y. 1966).