The opinion of the court was delivered by: Sue E. Myerscough United States District Judge
Tuesday, 04 October, 2011 03:04:10 PM
Clerk, U.S. District Court, ILCD
SUE E. MYERSCOUGH, U.S. District Judge
The Court now considers Defendant Jeffrey Price's Omnibus Motion (d/e 44), which includes a Motion to Set Appropriate Bond, Motion for a Bill of Particulars, Motion to Dismiss, and Motion for the Severance of Charges. For the reasons that follow, Defendant's Omnibus Motion is DENIED in its entirety.
MOTION TO SET APPROPRIATE BOND Section One of Defendant's Omnibus Motion is a Motion to Set Appropriate Bond. Defendant argues that the Detention Order (d/e 6) finding that Defendant was not a flight risk but posed a significant risk to the community was in error. Defendant requests that this Court place Defendant on a recognizance bond subject to conditions as determined appropriate by the Court.
Defendant has moved for release from custody on bond on three prior occasions. This Court denied each of those motions. Defendant's initial Motion for Bond (d/e 4) was heard before United States Magistrate Judge Byron G. Cudmore on October 27, 2009 and denied. See Order of Detention (d/e 6). At the hearing, Judge Cudmore heard testimony, reviewed the Government's exhibits, and found there was clear and convincing evidence that Defendant posed a danger to others if released on bond. Defendant made a second Motion for Recognizance at a Final Pretrial Conference held on May 4, 2011. This Court found that there was no good cause to disturb Judge Cudmore's previous Order of Detention and denied the Motion on May 6, 2011. Defendant filed a third Motion for Release on Recognizance (d/e 35) on July 7, 2011, which this Court heard and denied on July 11, 2011.
In the present Motion, Defendant requests that he be released on his own recognizance and be required to reside with his wife at 830 North Seventh Street, Riverton, Illinois, 62561. Defendant asserts that the Court's concern that he is a threat to the community can be "substantially alleviated" if the Court places him on bond "with sufficient conditions to minimize the possibility of further allegations." See Def.'s Mot. at 3. In Defendant's Second Supplement to Defendant's Omnibus Motion (d/e 59), Defendant asserts that due to his detention, he is unable: (1) to maintain the overall mental health and focus needed to endure this event; (2) to freely communicate with people necessary to help formulate his defense; (3) to freely research, read, or examine law related to his defense; (4) to properly manage his medication, diet, health, and well-being; (5) to maintain proper hygiene and dress; and (6) to have the full support and counsel of his spouse.
A detention hearing may be reopened at any time before trial "if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue of whether there are conditions of release that will reasonably assure . . . the safety of any other persons." 18 U.S.C. § 3142(f). Defendant's Motion to Set Appropriate Bond and Second Supplement to Omnibus Motion (d/e 59) offer no new information to distinguish the present Motion from his three previous motions to set bond. The concerns stated in the Second Supplement to Omnibus Motion are general complaints about detention that are not specific to this case. The Court finds no reason to reverse the Court's previous three orders on this matter. Accordingly, Defendant's Motion to Set Appropriate Bond is denied.
MOTION FOR A BILL OF PARTICULARS Defendant requests that this Court compel the Government to provide a bill of particulars. Defendant argues that the Superseding Indictment (d/e 18) fails to provide enough information for him to properly prepare a defense. Specifically, Defendant argues that the Superceding Indictment "does not specify how the Defendant attempted to knowingly use, induce, entice, and coerce R.P. to engage in sexually explicit materials." Def.'s Mot. at 7. Defendant also argues that Counts II and III "do not specify which computers, hard drives, and other storage materials these visual depictions were stored on and how they were related to the Defendant." Def.'s Mot. at 7. Defendant further asserts that a bill of particulars is warranted due to the complexity of this case, noting that the defense team is reviewing more than 1,150 pages of pretrial discovery.
The Government responds that the more than 1,000 pages of discovery that it has provided to Defendant are an adequate "satisfactory form" of information retrieval, making a bill of particulars unnecessary. See Gov. Resp. at 5 (quoting United States v. Canino, 949 F.2d 928, 949 (7th Cir. 1992) (holding that "[c]omplete and open discovery of all evidence assembled and revealed in the government's investigation . . . is an adequate 'satisfactory form' of information retrieval, making the bill of particulars unnecessary")).
The Government also responds that Defendant's request for a bill of particulars is not a request for a bill of particulars but is instead a request to know how the Government intends to prove the knowledge element in Counts II and III at trial, which is an improper request. Gov. Resp. at 6 (citing United States v. Agostino, 132 F.3d 1183, 1191 (7th Cir. 1997)).
The decision whether to require a bill of particulars under Rule 7(f) lies within the discretion of this Court. See United States v. Kendall, 665 F.2d 126, 134 (7th Cir. 1981) (citations omitted). The test for determining whether a court should order a bill of particulars is "whether the indictment sets forth the elements of the offense charged and sufficiently apprises the defendant of the charges to enable him to prepare for trial." United States v. Roya , 574 F.2d 386, 391 (7th Cir. 1978), cert. denied, 439 U.S. 857, 99 S. Ct. 172, 58 L. Ed. 165. Although a defendant has a right to know the offense with which he is charged, the government is not required to detail in the indictment how that charge will be proven. Agostino, 132 F.3d at 1191.
In this case, the Superseding Indictment sets forth the elements of the offenses charged and cites to the relevant statutes for each charge. See Roya, 574 F.2d at 391. The Superseding Indictment further describes the alleged conduct and the nature of the activity with which Defendant is charged. This Court finds that the Superseding Indictment satisfies the standard in Roya by sufficiently apprising Defendant of the charges to enable him to prepare for trial. Because this Court finds that a bill of particulars is unnecessary in this case, Defendant's Motion for a Bill of Particulars is denied.
MOTION TO DISMISS Section Three of Defendant's Omnibus Motion (d/e 44) is a Motion to Dismiss pursuant to Federal Rules of Criminal Procedure 12(b) and 34. First, Defendant argues that the Government cannot prove that Defendant committed the actus reus or had the mens rea necessary to commit the charged offenses because the Government lacks evidence to show that Defendant knew the photographs were on the computer or had placed the photographs on the computer. Second, Defendant cites Rule 12(b)(3)(B) and argues that this Court lacks subject matter ...