United States District Court, D. Utah, Central Division
District Judge, Robert J. Shelby
MEMORANDUM DECISION AND ORDER
M. WARNER, UNITED STATES MAGISTRATE JUDGE
Judge Robert J. Shelby referred this case to Magistrate Judge
Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(A). Before the court is a motion for a bill of
particulars filed by Marcos Ivan Serrano-Serrano
(“Defendant”). The court has carefully reviewed the
written memoranda submitted by Defendant and the United
States (“Government”). Pursuant to criminal rule
12-1(d) of the Rules of Practice for the United States
District Court for the District of Utah, the court has
concluded that oral argument is not necessary and will
determine the motion on the basis of the written memoranda.
See DUCrimR 12-1(d).
seeks a bill of particulars regarding Counts 1, 2, and 3
(Conspiracy to Distribute Methamphetamine, Heroin, and
Cocaine, respectively, in violation of 21 U.S.C. § 846);
and Count 5 (Distribution of Methamphetamine in violation of
21 U.S.C. § 841(a)(1)) of the Superseding
Indictment. Specifically, Defendant argues that a bill
of particulars is necessary in this case because of
“the lack of information in the voluminous discovery
and wiretap recording.” Defendant requests that the
Government be ordered to identify whether it has relied or
intends to rely upon the following with respect to the
(a) Specific conduct of the defendant;
(b) Intercepted telephone calls of the defendant;
(c) Confidential informant information that the Defendant was
(d) Witnesses testimony that the Defendant was involved;
(e) Co-Defendants' debriefing implicating the defendant
in the conspiracy.
(f) By other means or proof?
also requests that the Government isolate specific recordings
it intends to use at trial in the material already provided
to Rule 7(c)(1) of the Federal Rules of Criminal Procedure,
“[t]he indictment . . . must be a plain, concise, and
definite written statement of the essential facts
constituting the offense charged.” Fed. R. Crim. P.
7(c)(1). If the indictment does not meet this threshold, Rule
7(f) provides that “[t]he court may direct the
government to file a bill of particulars [and/or 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.” Fed. R. Crim P. 7(f). As an initial matter,
the court notes that Defendant made his Initial Appearance on
the Superseding Indictment on February 16, 2016, and filed
his motion for a bill of particulars on September 25, 2016.
Thus, Defendant's motion was filed over seven (7) months
after his arraignment, well-beyond the fourteen (14) day time
limit. Thus, the court could deny Defendant's motion on
this basis alone. The court, however, has considered
Defendant's motion on the merits and concludes that it
fails on that basis as well.
indictment is “‘generally sufficient if it sets
forth the offense in the words of the statute so long as the
statute adequately states the elements of the
offense.'” United States v. Dunn, 841 F.2d
1026, 1029 (10th Cir. 1988) (quoting United States v.
Salazar, 720 F.2d 1482, 1486 (10th Cir. 1983), cert.
denied, 469 U.S. 1110 (1985)). “An indictment need not
go further and allege ‘in detail the factual proof that
will be relied upon to support the charges.'”
Id. (quoting United States v. Crippen, 579
F.2d 340, 342 (5th Cir.1978), cert. denied, 439 U.S. 1069
(1979) (citations omitted)). When an indictment sets forth
the elements of the charged offense and sufficiently apprises
the defendant of the charges to enable him to prepare for
trial, a motion for bill of particulars should be denied.
See Id. at 1029-30; see also United States v.
Dahlman, 13 F.3d 1391, 1400 (10th Cir. 1993);
Salazar, 720 F.2d at 1486.
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 (quotations and citation omitted). While a
bill of particulars is not a discovery device, it may
“amplify the indictment by providing additional
information.” Id. “[T]he defendant is
not entitled to notice of all of the evidence the government
intends to produce, but only the theory of the
government's case.” United States v.
Levine, 983 F.2d 165, 167 (10th Cir. 1992) (quotations
and citation omitted). The denial of a motion for a bill of
particulars is reviewed “for an abuse of discretion,
” and will not be ...