United States District Court, N.D. Illinois
September 23, 2004.
The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Defendant, Fred Schreier, filed a motion for more definite
particulars and a motion pursuant to Fed.R. Crim. P. 8(a) and 14
to sever the two counts of his superseding indictment.
The superseding indictment charges defendant with violating
18 U.S.C. § 1954 by receiving and agreeing to receive from
co-defendant, Michael Linder, a motorcycle, because of
defendant's actions, decisions, and other duties relating to two
union pension funds (Count I), and with violating 18 U.S.C. § 664
by unlawfully and willfully abstracting and converting, and
aiding and abetting another to do so, $18,000 from one of the tow
pension funds (Count II). The government, in response to this
court's prior order, also submitted a bill of particulars that
specifies the particular conduct of defendant that is alleged to
violate §§ 1954 and 664.
The focus of defendant's motion for more definite particulars
is that in paragraphs 8, 9, and 10 of the bill of particulars the
government has not identified the specific dates upon which
defendant performed the acts set forth therein.
The test for whether a motion for a bill of particulars should
be granted is whether the defendant has been sufficiently
apprised of the charges to enable him to prepare for trial.
United States v. Fassnacht, 332 F.3d 440, 446 (7th Cir.
2003). An indictment which includes each of the elements of the
charged offenses, the time and place of the accused's conduct
which constitutes a violation, and a citation to the relevant
statutes is sufficient. Fassnacht, 332 F.3d at 446. A bill of
particulars is not required where the information necessary for a
defense can be obtained through some other satisfactory form such
as government disclosure of evidence. United States v. Canino,
949 F.2d 928, 948 (7th Cir. 2001).
Here, defendant has been adequately apprised between the
superseding indictment, the bill of particulars, the discovery
made available from the government, and his own knowledge of the
events. The specific dates relevant to paragraphs 8, 9, and 10
need not be identified under these circumstances.
Fed.R. Crim. P. 8(a) allows joinder of multiple counts if they
are "the same or similar conduct, or are based on the same act or
transaction, or are connected with or constitute parts of a
common scheme or plan." The similarity of character of different
offenses does not significantly depend on their separation in
time, so counts of like class may be joined even if they are not
temporally or evidentially linked. United States v. Lanas,
324 F.3d 894, 900 (7th Cir. 2003). The broadest possible basis
for joinder, that the offenses are of the same or similar
character, is a clear directive to compare the offenses charged
for categorical, and not evidentiary, similarities. United
States v. Alexander, 135 F.3d 470, 476 (7th Cir. 1998). The
same or similar character standard may be satisfied even if the
offenses are not of identical statutory origin. Alexander,
135 F.3d at 476. There is a strong policy preference in favor of
joinder, and Rule 8(a) must be broadly construed to that end.
Alexander, 135 F.3d at 476.
Here, the two counts against defendant have been properly
joined under either the same or similar character theory or the
common scheme or plan theory. Both offenses are categorically
similar in that they involves the alleged bestowal of an improper
benefit upon defendant by Linder. They also reflect a common
scheme or plan by Linder to influence defendant. While they are
distinctly different crimes, they are sufficiently related to
satisfy Rule 8(a). The time between the two offenses, given their
similarities, is not significant for purposes of joinder.
Even though two charges may be properly joined under Rule 8(a),
the court may exercise its discretion and grant a severance under
Fed.R. Crim. P. 14 when it appears that the defendant will
suffer prejudice by joinder. Lanas, 324 F.3d at 900. Prejudice
requiring severance is not shown if evidence on the severed
counts would be admissible at the trial of the remaining counts.
United States v. Handlin, 366 F.3d 584, 591 (7th Cir.
2004). This would include the admission of evidence at the other
trial under Rule 404(b) of the Federal Rules of Evidence. United
States v. Rollins, 301 F.3d 511, 518 (7th Cir. 2002).
In this case, defendant has not identified any prejudice from
the joinder of Counts I and II sufficient to overcome the
judicial economy reflected in the joinder under Rule 8(a).
Further, even if the two charges were severed, evidence of the
other would be admissible at each trial under Rule 404(b) to show
motive and intent as well as to rebut any defense of mistake.
For the foregoing reasons, the court denies defendant's motion
for more definite particulars and motion for severance.
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