United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
motion, defendant George Bush, Jr. seeks a bill of
particulars. See Doc. 127. Specifically, Mr.
Bush's motion asks the court to require the government to
specify: (1) the date of the earliest statement or event
purportedly showing that a conspiracy existed; (2) “the
nature of” all statements or events-other than those
already specified by the Indictment-that purportedly
demonstrate a conspiracy existed; (3) the date of the
earliest statement or event purportedly showing that each
defendant joined the alleged conspiracy; (4) the date of the
earliest statement or event purportedly showing that Mr. Bush
joined the charged conspiracy; and (5) “a list of drug
transactions in which the defendant was allegedly
involved”-including each name of the others involved,
location and approximate dates of the transactions, nature
and quantity of the drugs, and “drug weight”
that, according to the government, Mr. Bush and the other
alleged conspirators allegedly distributed. Id. at
court heard argument on the motion at a hearing on July 18,
2019. The government opposes the motion. See Doc.
144. But, the government already has provided some
information in response to the motion. Namely, the United
States has announced that it plans to seek a Superseding
Indictment that will expand the date when the alleged
conspiracy began and also correct an existing error in its
terminal date. See Doc. 144. So, in limited
respects, Mr. Bush's motion already has secured some of
the relief he seeks.
its discretion,  the court has decided to deny the motion.
The court's reasoning begins with the legal standard
governing a motion like this one. It does not favor Mr. Bush.
“The purpose of a bill of particulars is to inform the
defendant of the charge against him with sufficient precision
to allow him to prepare his defense, to minimize surprise at
trial, and to enable him to plead double jeopardy in the
event of a later prosecution for the same offense.”
United States v. Higgins, 2 F.3d 1094, 1096 (10th
Cir. 1993) (quoting United States v. Dunn, 841 F.2d
1026, 1029 (10th Cir. 1988)); United States v.
Gabriel, 715 F.2d 1447, 1449 (10th Cir. 1983) (trial
court's ruling denying bill of particulars “will
not be disturbed if the indictment is sufficient to enable
the defendant to prepare a defense, to avoid prejudicial
surprise at trial, and to bar the risk of double
jeopardy”). A “bill of particulars is not
necessary if the Indictment sets forth the elements of the
offense charged and sufficiently apprised the defendant of
the charges to enable him to prepare for trial.”
United States v. Levine, 983 F.2d 165, 167 (10th
Cir. 1992) (affirming district court's decision denying
motion for bill of particulars in full discovery case)
(internal quotation marks omitted). Of note here, a defendant
may not use a bill of particulars to compel the government to
provide a “detailed exposition of its evidence or
explain the legal theories upon which it intends to rely at
trial.” United States v. Burgin, 621 F.2d
1352, 1359 (5th Cir. 1980), cert. denied, 449 U.S.
1015 (1980) (cited by Tenth Circuit in Gabriel, 715
F.2d at 1449).
recited above, Mr. Bush's motion would require the
prosecutor to specify “the nature of any and all
statement[s] and/or events, other than those already
contained in the indictment, upon which the government
intends to rely to prove that the conspiracy existed.”
Doc. 127 at 2. Likewise, it seeks a statement specifying
“the earlier statement and/or event” which the
prosecution will invoke “to establish when . . . each
defendant joined the conspiracy.” Id. And,
most tellingly, the motion asks for a list of all drug
transactions in which defendants “were involved.”
Id. In short, Mr. Bush's motion, if granted,
would mandate a detailed roadmap of the government's case
against him. This approach is inconsistent with Fed. R. Crim.
P. 7(c) and the Federal Rules of Criminal Procedure as a
whole. It is particularly inappropriate in a full discovery
case, as this one is. See Doc. 148 at 15
(acknowledging this case is a full discovery case).
telling is what Mr. Bush doesn't assert in his motion
papers. He never asserts that the Indictment fails to inform
him of “the charge against him with sufficient
precision to allow him to prepare a defense.” See
Levine, 983 F.2d at 166-67. Nor does he assert that he
faces “unfair surprise at trial, ”
Higgins, 2 F.3d at 1094, or that without the bill he
risks a “second prosecution for the same offense”
he faces here. Id. Instead, Mr. Bush contends a bill
of particulars “is necessary to bring additional focus
to the massive amount of discovery produced” and to
“ensure efficiency at trial.” Doc. 127 at 1. An
efficient trial is surely a desirable thing. The court
commends procedures to counsel that will promote efficiency
at the expense of inefficiency. But this aspiration can't
support the sweeping relief sought by Mr. Bush's motion.
Indeed, his motion cites no case where a court has entered an
order like the one he seeks now.
Bush's best argument asserts that the discovery in this
case “is voluminous, consisting of over 100, 000 pages
. . . and weeks of video surveillance materials . . .
.” Doc. 127 at 2. The court agrees with the premise of
Mr. Bush's argument. Reviewing the discovery and
identifying all material facts in the fashion sought by Mr.
Bush's motion would require substantial effort. But
nothing suggests that Mr. Bush and his counsel are incapable
of performing this work, or even that they have tried to do
it but cannot.
the case authorities don't recognize a bill of
particulars as a device for shifting work from one side of
the caption to another. The court isn't persuaded by Mr.
Bush's argument that the evidence-especially the images
captured on video-is something “more clearly known to
law enforcement agents” than anyone else. The
government asserts that a substantial part of the video it
secured during the investigation portrays Mr. Bush as a
participant in events. Mr. Bush and his attorneys can examine
that video and discern whether it shows what the government
claims it to portray. And if, for example, the video evidence
captured Mr. Bush participating in a conversation or some
other events, he can explain to his counsel what the video
shows and who the participants are. In contrast, if Mr. Bush
concludes that he is not the person shown on the
government's video evidence, he is capable of providing
that information to his counsel. But in either event, the
government isn't more capable of conducting the review or
creating the inventory of information sought by Mr.
Mr. Bush has not demonstrated that the Indictment against him
fails “to set forth the elements of the offense charged
. . . .” Levine, 983 F.2d at 167. Nor has he
asserted that the Indictment has failed to inform him of the
charges in a fashion that keeps him from “prepar[ing]
for trial.” Id. Given these conclusions, Mr.
Bush has failed to shoulder the burden imposed by the
prevailing legal standard. The court thus denies his motion
for a bill of particulars.
THEREFORE ORDERED BY THE COURT THAT defendant George
Bush, Jr.'s Motion for Bill of Particulars (Doc. 127) is
IS SO ORDERED.
See, e.g., United States
v. Kunzman, 54 F.3d 1522, 1526 (10th Cir. 1995);
United States v. Griffith, 362 F.Supp.2d 1263, ...