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United States v. Daugherty

United States District Court, E.D. Kentucky, Central Division, Lexington

February 28, 2017



          Robert E. Wier, United States Magistrate Judge

         Defendants David Black Daugherty, a former Social Security Administration Administrative Law Judge, and Alfred Bradley Adkins, a clinical psychologist, face an Indictment charging each with numerous counts, centering on an alleged 8 year Social Security fraud scheme involving thousands of claims and $600 million in alleged losses. See DE #1 (Indictment).

         Defendants Daugherty and Adkins separately, but harmoniously, moved for bills of particulars. DE ##129, 136 (Motions). The United States responded in opposition. DE #146, 147 (Responses). Daugherty received permission to, and did, reply. DE #157 (Reply). The matters are ripe for consideration. For the following reasons, the Court DENIES DE ##129 and 136.

         Legal Standard

         The 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 F. 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 facts 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 F. App'x 706, 724 (6th Cir. 2008).

         Analysis-Daugherty's Motion

         The Court initially comments on the structure of its handling of the motions. Although Daugherty's reply substantially clarifies and narrows his request, Adkins's motion stands as filed. Accordingly, the Court separates the analyses and conducts an appropriate evaluation of each motion, although the motions request substantially the same information and the analysis, to a large extent, overlaps.

         Daugherty disclaims any argument concerning: (1) whether the Indictment adequately describes the charges, (2) identification of Government trial exhibits, (3) identification of Government case theories or strategies, and (4) disclosure of overt acts. DE #157, at 2-3.

         According to Daugherty, he only seeks identification, via the Rule 7(f) mechanism, of “which claimant files [the Government] will . . . offer[] into evidence or otherwise rel[y] upon or refer[] to . . . at trial.” DE #157, at 1.[1] Defendant is explicit: “[h]e only seeks a listing of the claimant files that will be relied upon by the government at trial.” Id. at 3. Perplexingly, although Daugherty wants to know the claimant files that will “be part of the government's proof at trial”-i.e., the precise evidence to be offered-he also professes to “not ask the government to identify its trial exhibits” and to “not seek the government's theories or strategies.” Id. at 1-2. The Court sees these statements as fundamentally irreconcilable. The Court fails to perceive-and Daugherty does not explain-how Defendant can renounce desiring “trial exhibits” and “theories or strategies” while simultaneously explicitly seeking “the government's proof at trial.” See Id. “[A] listing of the claimant files that will be relied upon by the government at trial” sounds a lot like an exhibit list, to the Court.

         A bill of particulars, as the Sixth Circuit repeatedly makes clear, is not intended to force the Government to disclose or identify its trial evidence. Salisbury, 983 F.2d at 1375; Musick, 291 F. App'x at 724; United States v. Vassar, 346 F. App'x 17, 20 (6th Cir. 2009); United States v. Crayton, 357 F.3d 560, 568 (6th Cir. 2004); United States v. Largent, 545 F.2d 1039, 1043-44 (6th Cir. 1976) (holding that a request for a bill of particulars naming “all the Government's witnesses” was improper).[2] “The proper scope and function of a bill of particulars is not to obtain disclosure of evidence . . . to be offered by the Government at trial.” United States v. Reddy, 190 F.Supp.2d 558, 565 (S.D.N.Y. 2002).

         Additionally, as may be relevant to Daugherty's request, “Rule 16 itself does not require the government to disclose [i.e., to identify or designate specifically] which evidence it intends to use at trial[.]” United States v. Allen, No. 3:12-CR-90-TAV-HBG, 2014 WL 3579373, at *4 (E.D. Tenn. July 21, 2014). Put simply: “Rule 16 does not require that the government disclose its exhibit list to defendant[].” Id. As a corollary, “defendants cannot obtain lists of prosecution witnesses as a matter of right[.]” United States v. Kendricks, 623 F.2d 1165, 1168 (6th Cir. 1980). “Ordinarily, a defendant is not entitled to a list of the names and addresses of the government's witnesses.” United States v. Davis, 306 F.3d 398, 420 (6th Cir. 2002) (quoting United States v. Perkins, 994 F.2d 1184, 1190 (6th Cir. 1993)).

         One district court explained, in the context of denying motions for a bill of particulars, a witness list, and an exhibit list: “A witness list is not an appropriate subject of a bill of particulars but is, instead, an attempt to discover the Government's evidence in the case. See Salisbury, 983 F.2d at 1375 (holding that a bill of particulars ‘is not meant as a tool for the defense to obtain detailed disclosure of all evidence held by the government before trial').” United States v. Kincaid, No. 3:10-CR160, 2013 WL 3991796, at *8-*13 (E.D. Tenn. Aug. 2, 2013). This makes good sense; a bill of particulars-an early opportunity for a defendant to get “key factual information not contained in the indictment, ” see Page, 575 F. App'x at 643-is not meant to restrict in limine the prosecution's ability to offer proof at trial.[3]

         This District has confirmed these fundamental principles, time and again. See, e.g., United States v. Ingram, No. 5:15-78-KKC, 2016 WL 1239976, at *2 (E.D. Ky. Mar. 29, 2016) (“[I]t would be improper to use a bill of particulars to compel the Government to disclose the manner in which it will prove the charges or preview its evidence of legal theory.”); United States v. Lockhart, No. 7:12-08-ART-HAI, 2012 WL 5867065, at *11 (E.D. Ky. Oct. 29, 2012) (“[A] bill of particulars is not designed to substitute for pretrial discovery, and it is not to be used to provide detailed disclosure of the government's evidence at trial.” (internal citations and quotation marks removed; emphasis added)); United States v. Maricle, No. 6:09-16-S-DCR, 2009 WL 4168974, at *2 (E.D. Ky. Nov. 20, 2009) (“[D]emands for the ‘whens, wheres, and hows' of the alleged offenses . . . far exceed the purposes of a bill of particulars; Rule 7(f) is a rule calculated toward adequacy of notice, not a rule designed to foster discovery or disclosure of case strategy. An indictment that provides sufficient notice of charged conduct satisfies the purposes of the Rule and requires no compelled particularization.” (some internal quotation marks removed)). Other intra-Circuit district courts follow suit, including in squarely analogous circumstances. See, e.g., United States v. Elhorr, No. 13-20158, 2014 WL 5511502, at *3 (E.D. Mich. Oct. 31, 2014) (denying motion for bill of particulars that requested, for example, “the specific Medicare claims involved in the alleged conspiracy” because the requests were “not proper subjects of a bill of particulars”).

         Indeed, “a Bill of Particulars is not to be used as a general discovery device, ” a maxim that “is particularly true in a conspiracy case in which the Government is not required to disclose all overt acts alleged to have occurred in furtherance of the conspiracy.” United States v. Hayes (Harry Walker), 884 F.2d 1393, 1989 WL 105937, at *4 (6th Cir. Sept. 14, 1989) (table). Because Daugherty's “indictment [i]s not so vague that [he] could not discern the nature of the charges against him, ” and because Daugherty's “request for a Bill of Particulars . . . attempt[s] to obtain additional information regarding the conspiracy [i.e., the precise evidence to be admitted at trial], and as such, amounts to a general discovery request, ” the motion leads to no relief. See Id. Indeed, the Indictment details with precision the scope and ...

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