UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE UNITED STATES OF AMERICA v. RICHARD R. BAUMGARTNER, a/k/a "JB," a/k/a "Judge B" ) ) ) ) ) ) Docket No. 3:12-cr-60 (Judges Greer/Shirley) GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION FOR A BILL OF PARTICULARS [DOCS. 25, 26] The government responds in opposition to defendant's Motion to for a Bill of Particulars (Docs. 25, 26). I. No hearing on this motion is required. This case is set for trial before Judge Greer on October 23, 2012, a date which both parties agreed upon, and the government will be ready to try defendant on that date. While a hearing on all pretrial motions has been set for August 27, 2012 at 10:00 am, the government asserts that, given its position regarding the only three motions for which defendant requested an evidentiary hearing (i.e., the three motions to suppress), no hearing is necessary.1 The pretrial motions filed by defendant - several of which are boilerplate motions - are ripe for adjudication based on the pleadings alone. II. Response to Motion for a Bill of Particulars (Docs. 25, 26) The government opposes defendant's request for a bill of particulars. Defendant's litany of questions to which he seeks answers (Doc. 25 at 1-2) is an obvious and sweeping demand that he be provided with a blueprint of the government's case. For the reasons set forth below, the The government will not be using any of the evidence that defendant claims should be suppressed in Docs. 30-32. The government's responses to the rest of defendant's motions will be filed on or before August 20, 2012. 1 Case 3:12-cr-00060 Document 34 Filed 08/15/12 Page 1 of 6 PageID #: 196 Indictment and the ample discovery provided to the defendant provide him with more than adequate details about the charges contained in the Indictment. Federal Rule of Criminal Procedure 7 permits a district court, in its discretion, to "direct the government to file a bill of particulars." Fed. R. Crim. P. 7(f). A bill of particulars is meant "to minimize surprise and assist the defendant in obtaining the information needed to prepare a defense and to preclude a second prosecution for the same crimes." United States v. Salisbury, 983 F.2d 1369, 1375 (6th Cir. 1993); accord United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976). "It is not meant as a tool for the defense to obtain detailed disclosure of all evidence held by the government before trial," Salisbury, 938 F.2d at 1375, and it "is not intended as 'a means of learning the government's evidence and theories.'" United States v. Musick, 291 F. App'x 706, 724 (6th Cir. 2008) (quoting 1 Charles Allen Wright & Arthur R. Miller, Federal Practice & Procedure ? 129 (4th ed. 2011)); accord United States v. Gabriel, 715 F.2d 1447, 1449 (10th Cir. 1983) ("A bill of particulars may not be used to compel the Government to disclose evidentiary details or 'to explain the legal theories upon which it intends to rely at trial.'" (quoting United States v. Burgin, 621 F.2d 1352, 1359 (5th Cir. 1980))); Hemphill v. United States, 392 F.2d 45, 49 (8th Cir. 1968) ("Acquisition of evidentiary detail is not the function of the bill of particulars."). "Thus, the test in ruling on a motion for a bill of particulars is whether providing such details is necessary to the preparation of the defense and avoidance of prejudicial surprise." Musick, 291 F. App'x at 724 (emphasis added); accord United States v. Matos-Peralta, 691 F. Supp. 780, 791 (S.D.N.Y. 1988) ("The ultimate test must be whether the information sought is necessary, not whether it is helpful."). 2 Case 3:12-cr-00060 Document 34 Filed 08/15/12 Page 2 of 6 PageID #: 197 The Sixth Circuit recently reiterated many of the principles discussed above when it affirmed Judge Greer's denial of a motion for a bill of particulars in a case involving a defendant's use of a computer to distribute child pornography between September 16, 2007, and November 6, 2007. United States v. Tillotson, 2012 U.S. App. LEXIS 16217, *1, *4 (6th Cir. Aug. 3, 2012). Tillotson complained that, absent a bill of particulars containing answers to particularized questions - similar to what defendant demands in the instant case - he could not prepare his defense because the indictment did not contain sufficient detail. Id. at *4. The Tillotson Court agreed with the district court that the indictment was "more than sufficient to inform [Tillotson] of the nature of the charges against him" and that "[he] and his attorneys well understand the nature of the prosecution and the anticipated evidence against [him]." Id. Importantly, the district court, as well as the Sixth Circuit, found that the indictment "and the discovery material that the United States provided eliminated any remaining ambiguity." Id. at *8. Here, as in the cases cited above, a bill of particulars is not warranted. The Indictment provides defendant with sufficient notice for him to understand the charges. For example, the Indictment identifies the nature of the concealment (i.e., material misrepresentations about Deena Castleman) in each of the seven counts, and it identifies the person to whom defendant directed those material misrepresentations. (Doc. 1, Indictment.) It also identifies in each count the federal felony that defendant concealed - a drug trafficking conspiracy. By reading the Indictment, defendant knows, for each count contained in the Indictment, the nature of the concealment and the identity of the person to whom defendant directed the concealment. Moreover, comparing the details contained in each count in the indictment against the detailed 3 Case 3:12-cr-00060 Document 34 Filed 08/15/12 Page 3 of 6 PageID #: 198 discovery memorandum provided to defendant on May 15, 2012 (see Doc. 9, Motion to Declare Case Complex, Ex. 1), "eliminate[s] any remaining ambiguity." Tillotson, supra. Reviewing the discovery already provided is, as Tillotson stated, a "prudent course of action[.]" Id. at *9. The Indictment and the generous discovery materials2 provide defendant with more than enough information to prepare his defense and avoid any subsequent prosecution for the same offense. Indeed, a motion for a bill of particulars has been denied in a misprision case where the indictment contained even less information than the current one. See United States v. Boyd, 2007 WL 4223532 at *2 (E.D. Tenn. Nov. 28, 2007). Like defendant here, the defendant in Boyd sought to have the government disclose the specific acts he committed in furtherance of the offense. Id. The court rejected that argument because "the government is not required to divulge the details of such acts which defendant seeks through a Bill of Particulars." Id.; see also Salisbury, 983 F.2d at 1375 (explaining that "a defendant is not entitled to discover all the overt acts that might be proven at trial"). In reality, defendant asks the Court to do its job for him by forcing the government to lay out the exhaustive details of its entire case pretrial. As the Third Circuit has explained, a bill of particulars is only intended to "give the defendant . . . that minimum amount of information necessary to permit the defendant to conduct his own investigation." United States v. Smith, 776 F.2d 1104, 1111 (3rd Cir. 1985) (emphasis original). Additionally, where the prosecution has provided meaningful discovery, a bill of particulars is not necessary. United States v. Soc'y of Independent Gasoline Marketers, 1980 U.S. App. LEXIS 21757, *14-*15 (4th Cir. Jun. 24, The government has elected in this case to provide defendant with discovery far beyond its obligations under the applicable rules and case law. 4 2 Case 3:12-cr-00060 Document 34 Filed 08/15/12 Page 4 of 6 PageID #: 199 1980); see also United States v. Cowan, 2009 WL 2613950 at *6 (E.D. Tenn. Aug. 24, 2009) (denying bill of particulars and pointing out that the government had provided full discovery to the defendant) (citing United States v. Martin, 1987 WL 38036 at *3 (6th Cir. 1987). No bill of particulars is required here because defendant has all the information he seeks. He simply has to examine the discovery provided to him. Additionally, defendant's statements, concerning his knowledge of the contents of the TBI's file, which he made in his various pleadings reveal that his alleged "need" for a bill of particulars is disingenuous. (See Doc. 26 at 4) ("Many of the alleged facts - as interpreted in the TBI Report of Investigation have been on public display for months[.]"); Doc. 27 at 1 ("The TBI Report is rife with rumors, innuendo, inaccuracies, and falsehoods by individuals interviewed[.]"). Moreover, defendant's Motion to Dismiss for Failure to State an Offense makes clear that defendant knows what he has been charged with. III. Conclusion As in Tillotson and the other cases cited above, no bill of particulars is warranted in this case. The Indictment itself provides sufficient notice and the government has provided defendant with extensive discovery. Defendant, therefore, has no basis to claim that he is "entitled" to have the government take the final step and lay out its entire case - point by point - in the form of a bill of particulars. Accordingly, his motion requesting a bill of particulars should be denied. Respectfully submitted, William C. Killian United States Attorney By: s/ David P. Lewen, Jr. David P. Lewen, Jr. Zachary C. Bolitho Assistant United States Attorneys 800 Market Street, Suite 211 Knoxville, Tennessee 37902 5 Case 3:12-cr-00060 Document 34 Filed 08/15/12 Page 5 of 6 PageID #: 200 CERTIFICATE OF SERVICE I hereby certify that on August 15, 2012, the foregoing Response was filed electronically. Notice of this filing will be sent by operation of the Court's electronic filing system to all parties indicated on the electronic filing receipt. s/David P. Lewen, Jr. Assistant United States Attorney 6 Case 3:12-cr-00060 Document 34 Filed 08/15/12 Page 6 of 6 PageID #: 201