U.S. v. Kelley
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Stephen J. Atherton, Emporia, KS 66801, Joseph D. Johnson, Joseph D. Johnson, Chartered, Topeka, KS,
for James O Kelley, defendant.
James O Kelley, Lawrence, KS, pro se.
Steven L. Davis, Patton, Davis & Putnam, P.A., Emporia,
KS, William K. Rork, Rork Law Office, The Liberty Building,
Topeka, KS, Gerald Austin Mccormick, defendant.
Gerald Austin McCormick, pro se.
MEMORANDUM AND ORDER
CROW, Senior J.
*1 On April 2, 1997, the grand
jury returned a two count indictment charging the defendants, James Kelley and
Gerald Austin McCormick, with conspiracy to possess with the intent to
distribute 106 marijuana plants (Count 1) and possession with the intent to
distribute 106 marijuana plants (Count 2).
This case comes before the court upon the following motions filed by the
defendants:
Motion filed by James Kelley (represented by Joseph Johnson):
1. Motion to Join in Pre-trial Motions Filed by Co-Defendant (Dk.27).
Motions filed by Gerald Austin McCormick (represented by William K. Rork):
[FN1]
FN1.
McCormick was initially represented by Steven L. Davis. McCormick's motion to
suppress and motion for separate trial were filed by Davis. Rork entered his
appearance on May 29, 1997.
1. Motion for Separate Trial (Dk.25).
2. Motion to Suppress (Dk.26).
3. Motion to Allow Filing of Additional Motions (Dk.40).
4. Brady Motion to Compel Disclosure of Exculpatory Evidence and Memorandum in
Support Thereof (Dk.41).
5. Motion For Discovery of Rule 404(b) Evidence and For Hearing on Rule 404(b)
Evidence Outside the Presence of the Jury and in Limine (Dk.42).
6. Motion For Bill of Particulars (Dk.43).
7. Motion for Discovery, Inspection and Disclosure (Dk.44); Memorandum of
Points and Authorities in Support of Motion for Discovery, Inspection and
Disclosure, and Further Requests (Dk.45).
8. Motion for Disclosure of Impeaching Information (Dk.46); Memorandum in
Support of Motion for Disclosure of Impeaching Evidence (Dk.47).
On July 8, 1997, the government filed a consolidated response to the
defendant's motions (Dk.48). The government's response repeatedly indicates
that this is a "full discovery" [FN2]
case. On July 10, 1997, McCormick filed a reply brief challenging, inter
alia, the government's assertion that he has been provided full discovery.
FN2.
In United States v. Perdue, 8 F.3d 1455 (10th Cir.1993),
the Tenth Circuit discussed the meaning of the phrase "full
discovery." In Perdue, the defendant argued that the government
violated a discovery order and did not abide by its statement that it was
providing full discovery. The Tenth Circuitstated:
By the phrase "full
discovery," [the defendant] presumably means that the government informed
defense counsel that it would divulge case evidence within its control. If the
government tells the defense it is conducting
a case under principles of
"full discovery," it undertakes a moral obligation to disclose
relevant evidence within its knowledge so as not to lull defense counsel into
not making a discovery motion. While the government may have been careless in
this case, there is no indication that it acted in bad faith by failing to advise
defense counsel of the statement.
Based upon its assessment of the written pleadings filed by the defendants, the
court concludes that it is unnecessary to hold the hearing currently set to
commence on Thursday, September 4, 1997, at 2:00 p.m. This memorandum and order
constitutes the court's rulings on the defendant's pretrial motions.
Motion to Join in Pre-trial Motions Filed by Co-Defendant (Dk.27).
Kelley's motion to join the pretrial motion filed by McCormick is granted
subject to the limitations imposed by this court's Criminal Procedural
Guidelines. See Criminal Procedural Guideline I.F. ("A motion to join
another party's motion will be granted only upon the following conditions. The
joining party will not be allowed to raise any legal or factual arguments that
are additional to or different from those found in the original motion, unless
they are advanced in the motion to join. Issues, such as prejudice, standing,
fairness, or need, that are unique to the party seeking to join must be made in
the written motion to join or the court will deem them to have been waived.").
Motion for Separate Trial (Dk.25); Motion to Suppress (Dk.26); Motion to
Allow Filing of Additional Motions (Dk.40).
Neither McCormick's motion for separate trial nor his motion to suppress were
accompanied by a separate concise memorandum citing all authorities and stating
with particularity all legal and factual arguments upon which he relies as
required by this court's Criminal Procedural Guidelines. On May 8, 1997,
the court entered a minute order indicating that McCormick had not complied
with the expectations of this court's Guidelines. Nevertheless, the
court extended the time to file such memoranda until June 5, 1997. No such
memoranda have been filed. In his reply brief, McCormick essentially argues
that the government's failure to provide him with full discovery has hampered
his counsel's ability to file appropriate motions and accompanying memoranda. [FN3]
FN3.
McCormick's reply brief indicates that his "counsel adamantly denies 'full
discovery' has been provided and via this response and a specific additional
written response (within seven days at a maximum), will forward specifically
and precisely what documents evidence by those correlated and put together in
the fashion I could best do based upon their disarray, printed front and back
where not sequentially or even close to
being sequentially related to
the material (front or back) those precise documents, the opportunity to go to
the government's office and compare the reports I have with what reports the
government has, and to specifically and precisely make certain that all of the
materials are available for discovery so full motions and further memorandums,
further motions and requests before this Honorable Court can be of subsistence,
rather than conjecture and otherwise insufficient to properly allow totality of
review by the Court for the position of this accused, based upon the acts and
statements above referenced."
No subsequent pleading was
apparently filed.
*2 The government indicates
that this is a "full discovery" case. The government indicates that
it has turned over all of the information in its possession and "[t]here
is nothing further for [it] to disclose at this time." Although defense
counsel indicates that he would like more information to assist in preparation
of his client's defense, in the absence of an adequate showing that the government's
assertion is incorrect, the court will accept government counsel's
representation. The defendant's motion for severance and motion to suppress are
summarily denied based upon non-compliance with this court's Guidelines.
At this juncture, the defendant has not made an adequate showing that it is
necessary to grant him the extra time he seeks to file new or supplemental
motions. That request is denied. Notwithstanding this ruling, upon good cause
shown, the court will reconsider this ruling and possibly extend the time to
file new or supplemental pretrial motions.
Brady Motion to Compel Disclosure of Exculpatory Evidence and Memorandum in
Support Thereof (Dk.41); Motion for Discovery, Inspection and Disclosure
(Dk.44); Motion for Disclosure of Impeaching Information (Dk.46).
These discovery motions are denied as moot in light of the government's
repeated assurances that this is a "full discovery" case and that it
has and will continue to fulfill all of its constitutional and statutory
obligations regarding disclosure of information.
Motion For Discovery of Rule 404(b) Evidence and For Hearing on Rule 404(b)
Evidence Outside the Presence of the Jury and in Limine (Dk.42).
This motion is denied as moot in light of the government's response that it
does not at this point intend to offer any evidence against either defendant
pursuant to Fed.R.Evid. 404(b).
Motion For Bill of Particulars (Dk.43).
In a two page motion, McCormick asks the court to enter an order requiring the
government to file a bill of particulars. Other than mentioning Fed.R.Crim.P. 7(f), McCormick's motion fails to cite or
discuss any of the legal standards for determining whether a bill of
particulars is warranted. McCormick suggests that "[j]ust referring to the
language of the statute involved without more, and with specificity setting
forth any and all acts for which any basis of guilt by the government is
sought, should not be sufficient for the prosecution herein."
The government opposes the defendant's motion, arguing that a bill of
particulars is unwarranted under the applicable legal standards. The government
suggests that based upon his conclusory arguments, the defendant is merely
seeking additional discovery in the form of a bill of particulars.
Bill
of Particulars
"An indictment is sufficient 'if
contains the elements of the offense charged, putting the defendant on fair
notice of the charge against which he must defend and if it enables a defendant
to assert an acquittal or conviction in order to prevent being placed in
jeopardy twice for the same offense.' " United States v. Poole, 929 F.2d 1476, 1479 (10th
Cir.1991) (quoting United States v. Staggs, 881 F.2d
1527, 1530 (10th Cir.1989), cert. denied, 493 U.S. 1020, 110 S.Ct. 719, 107 L.Ed.2d 739 (1990)). In the
Tenth Circuit, it is usually enough for the indictment to track the statute
when the statute adequately expresses all of the elements to the offense. United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir.1988).
An indictment is held only to minimal constitutional standards. United States v. Edmonson, 962 F.2d 1535, 1541 (10th
Cir.1992). The sufficiency of an indictment is judged "by practical rather
than technical considerations." Id. The district court has broad discretion in
deciding a motion for bill of particulars. Id.
*3 " '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.' " Dunn, 841 F.2d at 1029 (quoting United States v. Cole, 755 F.2d
748, 760 (11th Cir.1985)). See United States v. Ivy, 83 F.3d
1266, 1281 (10th Cir.1996) ( "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.") (quoting United States v. Levine, 983 F.2d
165, 166-67 (10th Cir.1992) (citations and internal quotation
marks omitted), cert. denied, 117 S.Ct. 253 (1996); United States v. Kunzman, 54 F.3d 1522, 1526 (10th
Cir.1995).
Though it may provide more information, a bill of particulars is not intended
to serve as a discovery device or to compel the government's disclosure of the
factual proof planned for trial. Dunn, 841 F.2d at 1029. Nor is it a way to require the
government's explanation of the legal theories expected at trial. United States v. Gabriel, 715 F.2d 1447, 1449 (10th
Cir.1983).
Analysis
Based upon these standards, the defendant's request for a
bill of particulars is denied. The defendant has clearly made an inadequate
showing that a bill of particulars is warranted in this case. The indictment
adequately apprises the defendant of the crimes charged. A comparison of the
allegations in both counts with those found in the case law establishes the
sufficiency of the indictment. The absence of any allegations of an overt act
is not a deficiency in the conspiracy charge as proof of an overt act in
furtherance of the conspiracy is not an essential element of a § 846 violation.
United States v. Shabani, 513 U.S. 10, 115 S.Ct. 382, 130
L.Ed.2d 225 (1994).
Moreover, the government has provided both defendants with "full
discovery" which should enable the defendants to understand the
government's case. "A bill of particulars is not required when information
necessary for a defendant's defense can be obtained through 'some other satisfactory
form' " United States v. Canino, 949 F.2d 928, 949 (7th Cir.1991)
(citations omitted), cert. denied, 504 U.S. 910, 112 S.Ct. 1940, 118 L.Ed.2d 546 (1992).
"The nature and operations of the 'open file' policy is an adequate
'satisfactory form' of information retrieval, making the bill of particulars
unnecessary." Id. (citations omitted); see Kunzman, 54 F.3d at 1526;
United States v. Sturmoski, 971 F.2d 452, 460 (10th
Cir.1992) (given the government's full disclosure and the defendant's
failure to show that he was actually surprised at trial and thereby incurred
prejudice to his substantial rights, the district court did not abuse its
discretion in denying the defendant's motion for a bill of particulars).
*4 Under these circumstances,
the defendant's request for a bill of particulars is denied.
IT IS THEREFORE ORDERED that Kelley's "Motion to Join in Pre-trial Motions
Filed by Co-Defendant" (Dk.27) is granted under the conditions set forth
in the body of this opinion.
IT IS FURTHER ORDERED that McCormick's "Motion for Separate Trial"
(Dk.25) and "Motion to Suppress" (Dk.26) are summarily denied for
non-compliance with this court's Criminal Procedural Guidelines.
IT IS FURTHER ORDERED that McCormick's "Motion to Allow Filing of
Additional Motions" (Dk.40) is denied.
IT IS FURTHER ORDERED that McCormick's discovery motions: "Brady Motion to
Compel Disclosure of Exculpatory Evidence and Memorandum in Support
Thereof" (Dk.41), "Motion for Discovery, Inspection and
Disclosure" (Dk.44), and "Motion for Disclosure of Impeaching
Information" (Dk.46), are denied as moot.
IT IS FURTHER ORDERED that McCormick's Motion For "Discovery of Rule 404(b) Evidence and For Hearing on Rule 404(b) Evidence Outside the Presence of the Jury and in
Limine" (Dk.42) is denied as moot.
IT IS FURTHER ORDERED that McCormick's "Motion For Bill of
Particulars" (Dk.43) is denied.
In light of the court's disposition of the pending motions, the hearing set for
September 4, 1997, at 2:00 p.m. is canceled.
Dated this 2nd day of September, 1997, Topeka, Kansas.
D.Kan.,1997.
END OF DOCUMENT
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