United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN CHIEF UNITED STATES DISTRICT JUDGE
Fourth Superseding Indictment (“FSI”) charges
defendants with one count of wire fraud in violation of 18
U.S.C. §§ 1343 and 2. Before the court are
defendants' Third Motion for Bill of Particulars (Dkt.
51), Motion to Dismiss Indictment (Dkt. 52), and Motion in
Limine (Dkt. 53). In response to the latter motion, the
government states that it does not intend to offer evidence
regarding the administrative order and correspondence
identified therein in its case-in-chief as long as defendants
do not open the proverbial door. Given the government's
response, the court denies the motion in limine as moot.
remaining two motions are inter-related. Defendants claim the
FSI is fatally defective because it fails to allege that the
purported misrepresentations were material, an essential
element for a wire fraud charge. Alternatively, defendants
request the government provide a bill of particulars that:
(a) identify each fax that contains the material false and
fraudulent statement(s) and representation(s);
(b) identify the specific language of the faxes that is
materially false and fraudulent and why it is so;
(c) identify and provide the agreement that defendants
executed with Five Rivers;
(d) identify and provide the agreement that defendants
executed with Innovative;
(e) identify the requirement/duty or the regulatory bases why
failing to disclose the purchase price and commission charged
(f) identify and provide the agreement that defendant
executed with the “other cattle feeding
companies” referenced in the Fourth Superceding
(g) identify and provide the written agreement that
defendants executed with Grant County Feeders as sworn to by
court finds the FSI sufficiently sets forth the elements of
wire fraud because it tracks with the applicable
statute's language. And contrary to defendants'
arguments, the court finds the FSI does allege that
“the false and fraudulent pretenses and
representations” were material. Defendants'
construction of the FSI is flawed because it assumes adverbs
only modify verbs. The FSI alleges that defendants
“devised a scheme to obtain money by means of
materially false and fraudulent pretenses and representations
. . . .” Defendants argue the adverb
“materially” modifies the verb
“devise” because it's the closest verb. Dkt.
52 at 8. As a result, they contend the FSI alleged that
defendants materially devised a scheme to defraud, rather
than that the misrepresentations were material. Id.
at 8-9. Adverbs, however, also modify clauses, adjectives,
other adverbs or adverbial phrases. Dictionary.com,
April 11, 2017); Woodward English,
(visited April 11, 2017). Here, “materially”
immediately preceded the adjectives “false and
fraudulent, ” which modified the nouns “pretenses
and representations.” Thus, the FSI alleged the
misrepresentations were material. This construction comports
with the common usage of the word “material”;
while defendants' construction (defendants materially
devised a scheme to defraud) makes little sense.
defendants' motion for a bill of particulars, the court
grants it in part. A bill of particulars serves to
“inform the defendant of the charge against him with
sufficient precision to allow him to prepare his
defense.” United States v. Levine, 983 F.2d
165, 166-67 (10th Cir. 1992) (citations and internal
quotation marks omitted). See United States v. Ivy,
83 F.3d 1266, 1281 (10th Cir. 1996). The defendant bears the
burden to demonstrate that, in the absence of a bill of
particulars, he or she will not have any meaningful
opportunity to prepare a defense, risks unfair surprise at
trial, or faces a serious risk of double jeopardy. See
United States v. Diaz, 2011 WL 6118610, *2 (D. Kan. Dec.
8, 2011). Whether to grant a bill of particulars under Rule
7(f) is committed to the discretion of the court. Will v.
United States, 389 U.S. 90, 99 (1967).
ask the court to require the government to: (a) identify each
fax that contains the material misrepresentations, and (b)
identify the specific language of the faxes that is
materially false and fraudulent. The FSI informed defendants
that they are charged with a wire fraud scheme based on their
misrepresentations of the price ALC paid for the cattle and
its failure to disclose the actual commission charged by ALC.
Thus, defendants have failed to provide a basis to require
the government to identify the specific language of the faxes
that is materially false and fraudulent.
also seek information about the agreements between the
defendant and his victims, the applicable regulatory bases,
and the agreement referenced in the Application for Search
Warrant [see (c)-(g) above]. The FSI informed defendants that
they have a fiduciary duty to its customers based on their
registration under the Packers and Stockyards Act of 1921.
FSI at ¶ 2. Thus, defendants have failed to provide a
basis for the items requested in (c)-(g) above. Those
requests appear to be an attempt to determine what evidence
the government will produce. A criminal defendant “is
not entitled to notice of all of the evidence the
government intends to produce, but only the theory
of the government's case.” Levine, 983
F.2d at 166-67 (citations and internal quotation marks
omitted) (emphasis in the original). Where the government
complies with its discovery and disclosure obligations, a
bill of particulars will be granted only rarely. See
United States v. Ard, 2011 WL 686178, *3 (D. Kan. Feb.
18, 2011) (the court “has seldom granted discovery in a
full disclosure case”). A request for a bill of
particulars which “reads like a discovery request in