United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
E. Wier, United States Magistrate Judge
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
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.
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).
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.
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.
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
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.
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). “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).
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)).
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
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”).
“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 ...