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United States v. Newman

December 5, 2007


The opinion of the court was delivered by: H. Bruce Guyton United States Magistrate Judge

(Phillips / Guyton)


All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for disposition or report and recommendation regarding disposition by the District Court as may be appropriate. Several pretrial motions are pending hearing before this Court on December 20, 2007. The Court has reviewed each motion and the authority set forth in support and finds that the parties have presented a thorough statement of their arguments and that a hearing is not necessary to disposition of every motion. Specifically, the following motions are subject to disposition on their merits without hearing and are addressed herein:

1. Motion to Dismiss or in the Alternative to Compel the Government File a Fed. R. Crim. P. 7(c) Bill of Particulars and for a Continuance [Doc. 35] filed by Julia Newman

2. Motion to Exclude Late Produced Discovery Pursuant to Fed. R. Crim. P. 16 (d) [Doc. 36] filed by Julia Newman

3. Motion to Renew Request for Rule 12(b)(4)(B) Notice [Doc. 37] filed by Julia Newman

4. Motion to Compel Fed. R. Crim. P. 16(a)(1)(E) Jail Telephone Tape Recordings of Scott West, Mike West and Phillip Apodaca or Other Cooperating Witnesses [Doc. 44] filed by Julia Newman



A. Defendant

In this motion, defendant Julia Newman argues that although this Court ordered the United States to provide a Bill of Particulars in the predecessor case, the government never did so.*fn1

Newman argues that instead of narrowing the scope of the charge against her, as intended to be accomplished in the Bill of Particulars, the government has instead expanded the case by increasing the time span of the conspiracy, the geographic range of the criminal activity and the number of defendants by the "consolidated" indictment. Newman asserts that this government action only increases the earlier necessity for a Bill of Particulars as to her alleged participation. Newman argues that she cannot meaningfully identify and file pretrial motions without the Bill of Particulars first requested on January 11, 2007, and ordered by this Court on June 25, 2007. 3:06-CR-102 [Doc. 147]. Newman argues that this condition is exacerbated by the ongoing disclosure of large amounts of Rule 16 material from the government. Newman raised this issue at the time of the consolidated indictment proceedings, but reports that the government still has not provided the Bill of Particulars.

Newman asks that the Court provide a remedy in three alternative forms of relief. First, Newman argues that it is appropriate for the Court to dismiss the indictment, stating that to do otherwise condones the government conduct in derogation of this Court's order. Second, Newman proposes severance of her case for trial from the other defendants in this indictment. As a third remedy, Newman asks for a continuance of the December 3, 2007, trial date in order to properly prepare in light of the delayed Bill of Particulars.

B. Government

The United States has filed a consolidated response in opposition to a number of Newman's motions at [Doc. 47], setting forth its position as to this motion at pages 2 - 9. The government argues that Newman is aware of the proof that the government will present at trial regarding her participation in the alleged conspiracy. The government asserts that Newman should therefor not be afforded relief from the prosecution's failure to respond with a formal Bill of Particulars because she has been in possession of the same information from other sources. The United States' response now sets forth the information ordered in the earlier case, describing the function of the conspiracy the government will attempt to prove overall and then Newman's alleged specific involvement at [Doc. 47, pages 6 and 7]. The government argues that it has not failed to comply with the order to provide a Bill of Particulars and sets forth various dates of disclosure of the same information to Newman through other means.

C. Conclusion

The Court finds that the government's description of what it seeks to prove at trial regarding the conspiracy and Newman's involvement satisfies the defendant's request for a Bill of Particulars. While the Court does not find the United States did or did not delay compliance with the order to provide this information, it does find that at this point no further remedy is warranted because the December 3, 2007, trial date has been continued for other reasons. [Doc. 53]. The trial has been continued some five months in order that the parties may pursue all pretrial motions and prepare for trial thereafter. This continuance affords time for Newman to consider the United States' response and prepare ...

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