United States District Court, N.D. Illinois, Eastern Division
July 26, 2004.
UNITED STATES OF AMERICA, Plaintiff,
RICHARD CARMAN, OMAR AVILA, Defandants.
The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
Before the Court are Defendants Richard Carman and Omar Avila's
(collectively "Movants") individual motions for bills of
particulars pursuant to Federal Rule of Criminal Procedure
Rule 7(f). For the reasons stated below, the motions are denied.
On March 26, 2003, Movants and others were charged in a
twenty-nine count superseding indictment.*fn1 Of these
twenty-nine counts, the indictment charged Richard Carman with
Counts One through Twenty-Four, and Avila with Counts One through
Five. Count One consists of a RICO violation, alleging seventeen
predicate acts. Count Two consists of a RICO conspiracy. Count
Three alleges a drug conspiracy while Counts Four and Five allege
that Movants kidnapped and murdered Sindulfo Miranda. The
remaining counts against Richard Carman allege numerous statutory violations, including charges for drug possession and
distribution, firearm possession, extortion, and witness
Shortly after the filing of the superseding indictment, Movants
filed their Motions for a Bill of Particulars.*fn2 In
essence, Movants ask that the Court direct the Government to file
a Bill of Particulars in order for them to understand the scope
of the government's allegations, adequately prepare for trial and
avoid being placed in double jeopardy.
Under Rule 7(f) of the Federal Rules of Criminal Procedure,
"the trial judge has discretion to grant or deny a request for a
bill of particulars." United States v. Andrus, 775 F.2d 825,
843 (7th Cir. 1985). Absent abuse of discretion, the trial
court's decision will not be disturbed on appeal. See Wong Tai
v. United States, 273 U.S. 77, 82 (1927). Furthermore, "[t]he
denial of a motion for a bill of particulars does not constitute
an abuse of discretion `unless the deprivation of the information
sought leads to the defendant's inability to adequately prepare
his case, to avoid surprise at trial, or avoid the later risk of
double jeopardy.'" United States v. Roya, 574 F.2d 386, 391
(7th Cir. 1978) (quoting United States v. Addonizio,
451 F.2d 49, 64 (3d Cir. 1971)).
In analyzing the whether a bill of particulars is necessary,
courts have looked to factors such as "the complexity of the
charges, the clarity of the indictment, and the availability of
discovery." United States v. Silesia Flavorings Inc., No. 03 CR
851, 2004 U.S. Dist. LEXIS 3147, at *15 (N.D. Ill. Feb. 26,
2004). The necessity of a bill of particulars depends on "whether
the indictment sets forth the elements of the offense charged and
sufficiently appraises the defendant of the charges to enable him to prepare for trial." Roya, 574 F.2d at 391. This
requirement is satisfied when "an indictment setting forth the
elements of each offense charged, the time and place of the
defendant's conduct that violated that offense, and citation to
the statute or statutes violated." United States v. Kendall,
665 F.2d 126, 134 (7th Cir. 1981).
In analyzing the sufficiency of the indictment, Movants do not
allege, nor does this Court find, that the indictment fails to
sufficiently set forth the elements of the offenses with which
they are being charged. Furthermore, for all counts, the
indictment cites the applicable statute. However, Movants make
numerous requests for more specificity involving the times, dates
and places associated with the allegations set forth in the
indictment. For example, Count 24 of the superseding indictment
alleges that "in or about August 2001" Richard Carman distributed
crack cocaine. As such, in his motion for a bill of particulars,
Richard Carman seeks "specificity when `in or about August 2001'
Defendant distributed a controlled substance." (Carman Mot. at
As currently set forth, this Court finds that the dates and
places listed in indictment are not so vague or indefinite that
Movants will be unable to know the nature of the charges against
them, nor will they be limited in their ability to prepare for
trial or avoid double jeopardy. Furthermore, the precedent set
forth by the Seventh Circuit in Kendall does not mandate that
an indictment list the exact time and place of a defendant's
allegedly illegal conduct. See Kendall, 665 F.2d at 134.
Moreover, a "defendant's constitutional right is to know the
offense with which he is charged, not to know the details of how
it will be proved." Id. at 135. As such, because the Court
finds that the indictment sets forth the elements of the offenses
Movants are charged with and sufficiently apprises them of those
charges so that they can prepare for trial, a bill of particulars
Additionally, "a bill of particulars is not required when
information necessary for a defendant's defense can be obtained
through some other satisfactory form." United States v. Canino, 949 F.2d 928, 949 (7th Cir. 1991) (internal quotation omitted).
In the present case, the Government has opted for an "open-file"
policy for the approximately 10,000 pages of witness and
non-privileged investigative materials.*fn3 Because an
"open-file" policy is considered "an adequate `satisfactory form'
of information retrieval," the bill of particulars is
unnecessary. Canino, 949 F.2d at 949. Moreover, 10,000 pages
are not so voluminous to necessitate a bill of particulars,
especially in a case where Movants have a lengthy period to
review the information prior to trial and where the indictment
sufficiently apprises Movants of the charges against them. See
United States v. Hassur, No. 01-40124-01-JAR, 2002 WI, 31682362,
at *2 (D. Kan. Nov. 22, 2002) (denying defendant's motion for a
bill of particulars in light of the government's "open-file"
policy and the finding that the indictment is specific enough to
narrow the defendant's research of discovery materials which
included "a three inch stack of reports, 200 boxes in a warehouse
and 33 boxes of records").
Richard Carman contends that it would be "far simpler, and more
time-efficient for the government to file a bill of particulars"
but offers no authority for this proposition.*fn4 (Carman
Reply at 5.) This statement misunderstands the purpose of a bill
of particulars. A bill of particulars is a tool used not for the
sake of simplicity or efficiency, but for the purpose of
informing a defendant when he lacks the "central facts which will
enable him to conduct his own investigation of the transactions
giving rise to the charge." United States v. Manetti,
323 F. Supp. 683, 696 (D. Del. Feb. 8, 1971). As noted above, in the exercise of discretion courts have
looked to the complexity of the charges, the indictment's clarity
and the availability of discovery. While multi-defendant RICO
cases often involve many charges, the Court finds that the
indictment sufficiently apprises Movants of the charges against
them. When combined with the Government's "open-file" discovery
policy, the Court is more than satisfied that Movants can
adequately prepare their case while avoiding surprise at trial
and the risk of double jeopardy. Accordingly, Movants' motions
For the foregoing reasons, Carman's [doc. no. 124] and Avila's
[doc. no. 173] motions for a bill of particulars are denied.