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United States v. Jordan

January 10, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
GRAY Y. JORDAN, JULIA C. NEWMAN, SHERRY FARMER, WILLIAM JORDAN, MELVIN SKINNER, AND SAMUEL SKINNER, DEFENDANTS.



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

(Phillips / Guyton)

MEMORANDUM AND ORDER

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. This Court conducted a hearing on all pending pretrial motions on December 20, 2007. Gray Jordan was present with his attorney, Randall Reagan. Julia Newman was present with her attorney, Herbert Moncier. Sherry Farmer had no motions pending before the Court and her appearance was excused in advance of the hearing. Attorney Mark Sallee participated by telephone; his client William Jordan was excused from appearance at the hearing as he likewise had no motions before the Court. Attorney Michael McGovern was present with his client, Samuel Skinner. Melvin Skinner was present with his attorneys, Ralph Harwell and Tracy Jackson Smith.

The government was represented by Assistant United States Attorney Hugh Ward. On December 21, 2007, the Court took the pretrial motions, the authority cited therein, along with the argument of counsel and the proffers of proof presented at the hearing under advisement. This Order is intended to address all non-dispositive pretrial motions, with a Report and Recommendation to the District Court to follow with regard to the severance motions.

1. MOTION FOR ADDITIONAL BILL OF PARTICULARS [DOC.43]

(NEWMAN)

Newman moves the Court to order the United States to provide further information on her role in the alleged conspiracy, to include whom she is alleged to have conspired with and when. Newman requests the following specific additional relief:

1. James Michael West: Information about the nature of the charged conspiracy as it relates to James Michael West, a defendant in 3:06-CR92, a case alleged to be related to this case. Newman seeks with dates when James Michael West became a cooperating individual and asks that the government clarify whether West was cooperating with law enforcement during the three day period, August 1 - 3, 2006. Newman asks that the United States clarify the nature of the continuing conspiracy after such time as West became a cooperating witness.

2. Relationship Between Conspiracies: Newman asks for the government to explain the interrelationship of three charged conspiracies and identify whether she therefor is an "unindicted co-conspirator" in United States v. Ramirez, 3:07-CR-44. Also, Newman asks about a number of other particulars pertaining to the interplay of the prosecution theory on the three large cases.

GOVERNMENT RESPONSE [DOC.47]

The United States does not respond to the merits of Newman's arguments, relying simply on the Court's previous ruling on Newman's Bill of Particulars issues. The response refers the Court to the government's previously-filed response at 3:06-CR-102 [Doc. 78].

ANALYSIS

The Federal Rules of Criminal Procedure provide broad authority for the Court to order the government to provide a bill of particulars when warranted. Rule 7(f) reads:

[t]he court may direct the government to file a bill of particulars. The defendant may move for a bill of particulars before or within 10 days after arraignment or at a later time if the court permits. The government may amend a bill of particulars subject to such conditions as justice requires.

Fed. R. Crim. P. 7(f).

However, the rules do not delineate under what circumstances it is appropriate for the Court to order such remedy. The Sixth Circuit has had occasion to addressed this issue a number of times and had provided ample guidance for lower courts. "A bill of particulars is meant to be used as a tool to minimize surprise and assist defendant in obtaining the information needed to prepare a defense and to preclude a second prosecution for the same crimes. It is not meant as a tool for the defense to obtain detailed disclosure of all evidence held by the government before trial." United States v. Salisbury, 983 F.2d 1369, 1375 (6th Cir. 1993) (citations omitted). The granting of a bill of particulars is within the court's discretion. See id. (holding that the appellate court reviews the denial of a bill of particulars for an abuse of discretion). The level of detail in the indictment can be a basis for denying the motion for a bill of particulars. Id. Additionally, "a defendant is not entitled to a bill of particulars with respect to information which is available through other sources." United States v. Paulino, 935 F.2d 739, 750 (6th Cir. 1991), superseded on other grounds by statute, United States v. Caseslorente, 220 F.3d 727 (6th Cir. 2000) (on sentencing issue).

The Sixth Circuit has held that "the Government is not required to furnish the name of all other co-conspirators in a bill of particulars." United States v. Crayton, 357 F.3d 560, 568 (6th Cir. 2004), cert. denied, 542 U.S. 910 (2004). Furthermore, "a defendant is not entitled to a list of the names and addresses of the government's witnesses." United States v. Perkins, 994 F.2d 1184, 1190 (6th Cir.), cert. denied, 510 U.S. 903 (1993).

The Sixth Circuit has approved the provision of dates that a defendant is alleged to have conspired. See, e.g., United States v. Rey, 923 F.2d 1217, 1222 (6th Cir. 1991); United States v. Fears, 450 F. Supp. 249, 251 (E.D. Tenn. 1978). This Court has already ordered the government to particularize Newman's involvement in this respect [Doc. 147 at pages 35-37] and finds no further remedy is necessary.

Newman's request includes the precise nature of the conduct alleged by the government, the location of such conduct; and Newman's relationship with persons purportedly involved in other cases. The Sixth Circuit rule is that "a defendant is not entitled to discover all the overt acts that might be proven at trial." Salisbury, 983 F.2d at 1375.

Aside from what may have been related through discovery disclosures, the Court finds there is a surfeit of information about the government's theory of this case available to the defendant on the public documents filed in the related cases on the court's electronic filing system. For example, the following narrative of the government's allegations is gleaned from a brief perusal of the public filings in United States v. West, et al, 3:06-CR-092; United States v. Skinner, et al., 3:06-CR-100; ...


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