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, Michael Linder, filed a motion for more definite
particulars and a motion pursuant to Fed.R. Crim. P. 8(a) and 14
to sever Counts I and II from Count III of the superseding
The superseding indictment charges defendant in Count I with
violating 18 U.S.C. § 1954 by directly and indirectly giving,
offering, or promising to give or offer to co-defendant Fred
Schreier a motorcycle because of the actions, decisions, and
other duties of Schreier related to two union pension funds.
Count II alleges a similar violation of § 1954 based on a
motorcycle defendant allegedly gave to co-defendant, Thomas
Kisting. Count III alleges that defendant unlawfully and
willfully abstracted and converted and aided and abetted another
in unlawfully and willfully abstracting and converting $18,000
from one of the two pension funds. The government, in response to
the 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.
Defendant contends in his motion for more definite particulars
that he is entitled to know specific dates as to paragraphs 8, 9,
and 10 of Count I and paragraphs 4, 7, 8, and 9 of Count II as
well as information to prove the respective motorcycles were
given by defendant because of Schreier's and Kisting's specific
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 by the superseding
indictment, the bill of particulars, the discovery provided by
the government, and his own knowledge of the events. The specific
dates need not be identified in these circumstances, and the
government has no obligation to provide specific evidence to
defendant as to how it intends to prove its case.
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.
In this case, Counts I and II have been properly joined with
Count III under either the same or similar character theory or
the common scheme or plan theory. Both offenses are categorically
similar in that they involve the alleged bestowal of an improper
benefit by defendant upon union representatives. They also
reflect a common scheme or plan by defendant to influence union
representatives related to the two pension funds. While Counts I
and II are distinctly different crimes from Count III, they are
sufficiently related to satisfy Rule 8(a). The time between the
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).
Here, defendant has not identified any prejudice from the
joinder of Counts I and II with Count III sufficient to overcome
the judicial economy reflected in the joinder under Rule 8(a).
Further, even if Counts I and II were severed from Count III,
evidence of each would appear to be admissible at each trial
under Rule 404(b) to show motive and intent as well as to rebut
any claim of mistake.
For the foregoing reasons, the court denies defendant's motion
for more definite particulars and motion for severance.
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