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XXXX XXXX XXXX, Defendant. _________________________ ) ) ) ) ) ) ) ) ) ) CRIMINAL ACTION NO. 3:94-CR-433-T
MOTION FOR BILL OF PARTICULARS AND MEMORANDUM OF LAW IN SUPPORT THEREOF Defendant XXXX XXXX XXXX hereby moves this Court to order the government to provide her with a bill of particulars setting forth the names of the individual(s) she communicated the alleged threats set forth in Counts 1-3 of the indictment filed against her on December 8, 1994 as well as the location at which those threats were made. I. FACTS Counts 1-3 of the indictment alleges that Ms. XXXX made threats against various individuals on October 30, 1994. The indictment is silent as to whom these alleged threats were made to and the location at which the alleged threats were made. II. ARGUMENT In accordance with Fed. R. Crim. P. 7(f), a court may direct the filing of a bill of particulars in order to give a defendant more particular information about the details of the charges against her and to allow her to prepare her defense. United States v. Diecidue, 603 F.2d 535, 563 (5th Cir. 1979), cert. denied sub nom., Gisport v. United States, 445 U.S. 946 (1980). The simple fact that an indictment is sufficient is not an argument against granting a bill of particulars. United States v. Debrow, 346 U.S. 374, 378 (1953). Likewise, the fact that a defendant is aware of the general nature of the charges against him does not answer a defendant's request for a bill of particulars. United States v. Gordon, 780 F.2d 1165, 1172 (5th Cir. 1986). Indeed, Fed. R. Crim. P. 7(f) was amended in 1966 to "encourage a more liberal attitude by the courts toward bills of particulars." See Advisory Committee Note to 1966 amendment of Fed. R. Crim. P. 7(f). The threats alleged in the indictment against Ms. XXXX, apparently off hand remarks, were supposedly made almost three months ago. Ms. XXXX has no recollection of making these remarks or where she might have been when the threats were allegedly made. Moreover, Ms. XXXX is presumed to be innocent and it must be assumed that she is ignorant of the facts upon which the government pleads its charges. United States v. Smith, 16 F.R.D. 372, 386 (N.D. Mo. 1954). Thus, the basic information requested by Ms. XXXX's motion for a bill of particulars is absolutely necessary in order to allow Ms. XXXX to investigate the charges and prepare her defense. See United States v. Fine, 413 F. Supp. 740, 746 (D. Wis. 1976) (Names of those present during alleged conversations referred to in overt acts alleged in the indictment were a proper subject of a bill of particulars); United States v. Tanner, 279 F. Supp. 457, 477 (D. Ill. 1967) (Defendants were entitled to be informed via bill of particulars of names of anyone alleged to have been present at material conversations between two defendants); United States v. Covelli, 210 F. Supp. 589, 590 (D. Ill. 1962) (Government would be required to furnish particulars as to names, if any, of persons who were present at certain conversations forming part of government's case). Cf. Will v. United States, 389 U.S. 90, 101-02 (1967) (Request in bill of particulars for names of persons to whom oral statements were made that were rXXXXed on by government to support criminal tax evasions charge as well as time and place statements were made was not improper on theory that such a request called for list of government witnesses). Indeed, without such information, it would be impossible for Ms. XXXX to prepare a defense to these charges. Notably, in encouraging a more liberal attitude by courts towards bills of particulars, the 1966 Advisory Committee to Fed. R. Crim. P. cited United States v. Smith, supra, as an example of a judge's "wise use of discretion" in granting a bill of particulars. See Advisory Committee Note to 1966 amendment to Fed. R. Crim. P.
7(c). In Smith, Judge Whittaker had ordered the government to provide the defense with a bill of particulars setting forth, inter alia, the exact place where the government had claimed the defendant sold and transferred drugs as well as the names of the person to whom the government claimed the drugs were sold and transferred. See Smith, 16 F.R.D. at 375. While Ms. XXXX acknowledges that this Court has a great deal of discretion in ruling on motions for bills of particular, it would appear that all Ms. XXXX is asking for is fundamental fairness and an opportunity to investigate the charges against her. By having knowledge of where the alleged threats were made and to whom, Ms. XXXX will be able to backtrack and possibly locate witnesses to the alleged statements in order to show that, if the statements were made, they were said in a non-serious manner. On the other hand, it is difficult to see how providing this information would prejudice the government, especially since Ms. XXXX is already serving a sentence of imprisonment.
Respectfully submitted, F. Clinton Broden Tx. Bar 24001495 Broden & Mickelsen 2715 Guillot Dallas, Texas 75204 214-720-9552 214-720-9594 (facsimile) Attorney for Defendant XXXX XXXX XXXX
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA, Plaintiff, v. XXXX XXXX XXXX, Defendant. _________________________ ) ) ) ) ) ) ) ) ) ) CRIMINAL ACTION NO. 3:94-CR-433-T
ORDER Upon consideration of Defendant's Motion for Bill of Particulars and Memorandum of Law in Support Thereof, said Motion is this day of February, 1995 GRANTED. ORDERED the government is to provide Ms. XXXX within three days of this order a Bill of Particulars setting forth the name(s) of the persons to whom the alleged threats in Counts 1-3 of the indictment were communicated to as well as the specific location at which those threats were made. ROBERT MALONEY UNITED STATES DISTRICT JUDGE
CERTIFICATE OF CONFERENCE
Pursuant to Local Rule 5.1 of the Northern District of Texas, I, F. Clinton Broden, certify that I attempted to confer with Michael Snipes, the Assistant United States Attorney assigned to the case, by leaving a message for him on January 30, 1995. F. Clinton Broden Assistant Federal Public Defender
CERTIFICATE OF SERVICE I, F. Clinton Broden, certify that on January , 1995, I caused a copy of Defendant's Motion for Bill of Particulars and Memorandum of Law in Support Thereof to be hand-dXXXXvered to Michael Snipes, Assistant United States Attorney, at 1100 Commerce Street, Third Floor, Dallas, Texas. F. Clinton Broden Assistant Federal Public Defender