United States District Court, E.D. Tennessee, Greeneville Division
MEMORANDUM OPINION AND ORDER
Clifton L. Corker, United States Magistrate Judge.
pretrial motions 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
appropriate. Defendant, Matthew Martland, has filed a Motion
for Bill of Particulars [Doc. 85]. The other Defendants moved
to join in this motion, [Docs. 93-95, 97, 100], and such
motions were granted. [Docs. 96, 101]. The Government filed a
response [Doc. 108]; Martland replied [Doc. 121]. This motion
is now ripe for resolution.
Background and Parties' Positions
are former employees of Wellco Enterprises, Inc., a now
defunct manufacturer and supplier of military and rugged
footwear that sold such footwear to the Government and the
public [Docs. 36, 81]. The Superseding Indictment alleges
Defendants conspired to commit and committed wire fraud,
defrauded the United States, and smuggled goods into the
United States by importing military-style boots that were
made in China. It also alleges deceptive marketing and sale
of the boots as “Made in the USA” and compliant
with the Trade Agreements Act of 1979, 19 U.S.C. § 2501
et seq. and the Berry Amendment, 10 U.S.C. § 2533a.
to Rule 7(f) of the Federal Rules of Criminal Procedure,
Martland moves the Court to order the Government to provide a
bill of particulars “particularizing the allegations
against” Martland. He asks the Government to identify
the “specific conduct forming the basis of the charges
against him - to include the dates and locations of such
conduct” [Doc. 86');">86, p. 12]. He also seeks specificity as
to the conduct supporting the charges against the
co-Defendants because the Superseding Indictment alleges he
conspired with and aided and abetted them.
support, Martland first argues the Government is obligated to
provide particularization. Next, he argues the Superseding
Indictment is not sufficiently particular because it relies
upon domestic preference and labeling laws that are enforced
on a case by case basis. He contends that such statues are
vague, are affected by a range of regulations and case law,
and that the Superseding Indictment makes no reference to
such regulations. He summarizes that the “allegations
of violations of these statutes, coupled with conclusory
recitations of the essential elements of the charged offenses
are not sufficiently clear and definite to inform” him
of the charges.
Martland argues that a bill of particulars is necessary to
allow certain pretrial or trial preparation, specifically (1)
preparation “for the actual charges the government will
attempt to prove” and, (2) filing of motions to
“prevent introduction of prejudicial assertions”
he believes are irrelevant to the charges or are otherwise
inadmissible [Doc. 86');">86, p. 10]. He elaborates that a bill of
particulars will allow him to “sift more efficiently
through the evidence, ” enable counsel to “more
intelligently interview potential witnesses” and
prepare jury instructions, and generally avoid waste of
judicial resources [Id. at 11].
Government objects, arguing that the Superseding Indictment
is detailed and that the Government has provided extensive
discovery in this case. The Government argues Defendants'
motion is a generic and vague request for information. It
also asserts that Defendants seek a bill of particulars for
improper purposes, i.e. to re-produce the voluminous
discovery and improperly compel the Government to identify
its primary evidence, case theories and witnesses.
replies by reiterating many grounds cited in the original
motion and supporting brief. He also adds that the
Superseding Indictment is insufficient without an allegation
of an overt act by Martland.
7(c)(1) of the Federal Rules of Criminal Procedure provides
that an “indictment or information must be a plain,
concise and definite written statement of the essential facts
constituting the offense charged.” The Supreme Court
has held that an indictment is sufficient “if it,
first, contains the elements of the offense charged and
fairly informs a defendant of the charge against which he
must defend, and, second, enables him to plead an acquittal
or conviction in bar of future prosecutions for the same
offense.” Hamling v. United States, 418 U.S.
87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974);
United States v. Landham, 251 F.3d 1072, 1079 (6th
Cir. 2001). Hamling also requires that the statutory
language “be accompanied with such a statement of the
facts and circumstances as will inform the accused of the
specific offenses, coming under the general description, with
which he is charged.” 418 U.S. at 117-18 (quoting
United States v. Hess, 124 U.S. 465, 8 S.Ct. 564, 31
L.Ed. 508 (1888).
7(f) of the Federal Rules of Criminal Procedure states:
The Court may direct the government to file a bill of
particulars. The defendant may move for a bill of particulars
before or within 14 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.
purposes of a bill of particulars are to inform the defendant
of the nature of the charge against him with sufficient
precision to enable him to prepare for trial, to avoid or
minimize the danger of surprise at the time of trial, and to
enable him to plead his acquittal or conviction in bar of
another prosecution for the same offense when the indictment
itself is too vague for such purposes. UnitedStates v. Birmley, 529 F.2d 103, 108 (6th Cir.
1976). A bill is meant to be used 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 ...