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United States v. Serrano-Serrano

United States District Court, D. Utah, Central Division

December 13, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
MARCOS IVAN SERRANO-SERRANO, Defendant.

          District Judge, Robert J. Shelby

          MEMORANDUM DECISION AND ORDER

          PAUL M. WARNER, UNITED STATES MAGISTRATE JUDGE

         District Judge Robert J. Shelby referred this case to Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(A).[1] Before the court is a motion for a bill of particulars filed by Marcos Ivan Serrano-Serrano (“Defendant”).[2] 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).

         Defendant 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.[3] 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.”[4] Defendant requests that the Government be ordered to identify whether it has relied or intends to rely upon the following with respect to the above-mentioned counts:

(a) Specific conduct of the defendant;
(b) Intercepted telephone calls of the defendant;
(c) Confidential informant information that the Defendant was involved;
(d) Witnesses testimony that the Defendant was involved;
(e) Co-Defendants' debriefing implicating the defendant in the conspiracy.
(f) By other means or proof?[5]

         Defendant also requests that the Government isolate specific recordings it intends to use at trial in the material already provided to Defendant.

         Pursuant 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.

         An 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.

         “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 (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 ...


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