United States District Court, E.D. Tennessee
MEMORANDUM OPINION AND ORDER
RONNIE GREER UNITED STATES DISTRICT JUDGE
matter is before the Court on defendants' appeal of the
Magistrate Judge's decision denying defendants' joint
motion for a bill of particulars, [Doc. 141]. The United
States has responded in opposition to the motion, [Doc. 157].
Also before the Court is defendants' appeal of the
Magistrate Judge's decision denying defendants' joint
motion to strike surplusage in the indictment, [Docs. 140,
142], and the United States' response, [Doc. 156]. These
matters are ripe for review.
eleven defendants are pharmacists, pharmacies, wholesalers,
or managers who operated pharmacies. Defendants were charged
by the grand jury in an October 9, 2018 indictment. [Doc. 1].
Count One alleges defendants conspired with each other,
HealthRight, Scott Roix, and other persons and entities known
to the grand jury to commit health care fraud in violation of
18 U.S.C. § 1349. [Id. at 1-36]. Counts Two to
Thirty allege defendants committed mail fraud in violation of
18 U.S.C. § 1341. [Id. at 36 -39]. Finally,
Counts Thirty-One and Thirty- Two allege defendants
introduced misbranded drugs in interstate commerce with the
intent to defraud and mislead in violation of 21 U.S.C.
§§ 331(a), 353(b)(1), and 333(a)(2). [Id.
Standard of Review
enacted 28 U.S.C. § 636 to relieve the burden on the
federal judiciary by permitting the assignment of
district-court duties to magistrate judges. See United
States v. Curtis, 237 F.3d 598, 602 (6th Cir. 2001)
(citing Gomez v. United States, 490 U.S. 858, 869-70
(1989)); see also Baker v. Peterson, 67 Fed.Appx.
308, 310 (6th Cir. 2003). Section 636(b) allows district
judges, subject to certain exceptions, to "designate a
magistrate judge to hear and determine any pretrial matter
pending before the court." 28 U.S.C. §
district court applies a "clearly erroneous or contrary
to law" standard of review for
"nondispositive" preliminary matters. See
Curtis, 237 F.3d at 603 (citing United States v.
Raddatz, 447 U.S. 667, 673 (1980)); see also 28
U.S.C. § 636(b)(1)(A). The clearly erroneous standard
applies only to factual findings made by the Magistrate
Judge, while legal conclusions will be reviewed under the
more lenient contrary to law standard." E.E.O.C. v.
Burlington N. & Santa Fe Ry. Co., 621 F.Supp.2d 603,
605 (W.D. Tenn. 2009) (internal quotation marks omitted).
Under the clearly erroneous standard for findings of fact,
the Court need only consider whether any evidence or showing
exists to support the Magistrate Judge's finding and
whether the finding was reasonable. Tri-Star Airlines,
Inc. v. Willis Careen Corp. of Los Angeles, 75 F.Supp.2d
835, 839 (W.D. Tenn. 1999) (citations omitted). "When
examining legal conclusions under the 'contrary to
law' standard, the Court may overturn 'any
conclusions of law which contradict or ignore applicable
precepts of law, as found in the Constitution, statutes, or
case precedent.'" Doe v. Aramark Educ. Res.,
Inc., 206 F.R.D. 459, 461 (M.D. Tenn. 2002) (citing
Gandee v. Glaser, 785 F.Supp. 684, 686 (S.D. Ohio
1992), aff'd, 19 F.3d 1432 (6th Cir. 1994));
see 32 Am.Jur.2d Federal Courts § 140 (2018)
("A magistrate judge's order is contrary to law when
it fails to apply or misapplies relevant statutes, case law,
or rules of procedure").
Motion for a Bill of Particulars
moved for a bill of particulars. [Docs. 103, 114]. The
Magistrate Judge denied defendants' motion in a May 3,
2019 order. [Doc. 132]. Pending before the Court is
defendants' joint appeal of the Magistrate Judge
decision. [Doc. 141].
Court “may direct the government to file a bill of
particulars.” Fed. R. Crim. P. 7(f). “The purpose
of a bill of particulars is to give a defendant key factual
information not contained in the indictment, so as to enable
him or her to prepare a defense and avoid surprise at
trial.” United States v. Page, 575 Fed.
App'x 641, 643 (6th Cir. 2014); see also United
States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976)
(setting out three purposes of a bill of particulars:
"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, and
indefinite for such purposes"). It is meant "as a
tool to minimize surprise," not to entitle the defendant
"to discover all the overt acts that might be proven at
trial." United States v. Salisbury, 983 F.2d
1369, 1375 (6th Cir. 1993). The decision to grant a bill of
particulars "is within the sound discretion of the trial
court." Id. Put another way, a bill of
particulars "is meant to apprise the defendant of the
essential facts of a crime and should be required only where
the charges of an indictment are so general that they do not
advise a defendant of the specific acts of which he is
accused." United States v. Kerik, 615 F.Supp.2d
256, 277 (S.D.N.Y. 2009) (quotation marks and citation
omitted). "The bill of particulars is not intended as
'a means of learning the government's evidence and
theories.'" United States v. Musick, 291
Fed.Appx. 706, 724 (6th Cir. 2008).
instant case, a grand jury indicted the defendants for their
alleged roles in a health care fraud conspiracy with a
telemedicine company in a thirty-two-count indictment
charging counts of conspiracy, mail fraud, and introduction
of misbranded drugs into interstate commerce. [Doc. 1].
Defendants argue that, in order to prepare for trial, they
need information to narrow the scope of the allegations
included in the indictment more precisely and request a bill
of particulars under Federal Rule of Criminal Procedure 7(f).
[Doc. 141 at 6-8].
Court finds that the forty-page indictment adequately informs
the defendants of the “nature and cause of the
accusation[s]” against them such that they may prepare
a defense and avoid surprise at trial. Russell v.
United States, 369 U.S. 749, 761 (1962). The Court
agrees with the Magistrate Judge's conclusion that the
three charging counts of the indictment capture each element
to prove the offense under the corresponding statutes and
provide specific dates for each charge. [Doc. 132 at 4].
See also 18 U.S.C. §§ 1341, 1347; 21
U.S.C. §§ 331(a), 353(b)(1), 333(a)(2); [Doc. 1].
defendants seek particularization of the precise acts each
defendant allegedly committed and the specific role each
defendant allegedly fulfilled as part of its involvement in
the conspiracy. [Doc. 141 at 7]. The indictment provides
defendants with pages of alleged overt acts encompassing the
conduct of each defendant. [Doc. 1 at 1-34]. Nevertheless,
the Court finds defendants have access to information from
other sources, such as the searchable 1.4 terabytes of data
the government has provided defendants as part of discovery,
that details the government's allegations as to each
defendant's participation in the health care fraud
conspiracy, and the other charges alleged in the indictment.
See United States v. Paulino, 935 F.2d 739, 750 (6th
Cir. 1991) (holding that additional particularization is not
necessary when the defendant has access to the details sought
from other sources) superseded on other gnds. by
stat., United States v. Caseslorente, 220 F.3d
727 (6th Cir. 2000) (on sentencing issue); [Doc. 125 at
defendants request particularization of the names of the
individuals with whom defendants conspired. Specifically,
“[o]f particular concern to Defendants' ability to
prepare for trial is the Indictment's repeated references
to additional unnamed other actors and conduct.” [Doc.
141 at 6]. However, the Sixth Circuit has held the government
is not required to furnish in a bill of particulars the names
of co-conspirators or other persons present when a defendant
allegedly participated in a conspiracy. United ...