01/29/2010 72 MOTION for Bill of Particulars with Brief In Support by Darryl Horton. (Waldrop, Thomas) (Entered: 01/29/2010)
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MOTION FOR BILL OF PARTICULARS AND BRIEF IN SUPPORT THEREOF
COMES NOW the Defendant, DARRYL HORTON, by and through
undersigned counsel, and respectfully submits this Motion for a
Bill of Particulars and Brief in Support Thereof pursuant to Rule
7(f) of the Federal Rules of Criminal Procedure, and requests this
Honorable Court enter an Order directing the United States to file
a Bill of Particulars to the following matters concerning the
offenses charged in the above-styled indictment. As grounds for
this Motion, Defendant shows the following:
(1)
As to Count One, Defendant needs the Government to clarify the
time frame of the conspiracy with more specificity. He also needs
to know who the others not named but known are. This holds true
for those who were alleged coconspirators as well as aiders and
abettors. See paragraph one of Count One.
(2)
Rule 7(f) of the Federal Rules of Criminal Procedure provides
for the filing of a bill of particulars. The purpose of a bill of
particulars is to give the defendant more particular information.
United States v. Archibald, 212 Fed. Appx. 788, 794, n.2 (11th Cir.
2006). The bill of particulars provides the defendant with
information about the details of the charges that are necessary to
the preparation of a defense and to avoid prejudicial surprise at
trial. United States v. Diecidue, 603 F.2d 535 (5th Cir. 1979),
cert denied 445 U.S. 946 (1979); United States v. Bascaro, 742 F.2d
1335, 1365 (11th Cir. 1984).
(3)
The Motion is not at this time an attack upon the sufficiency
of the indictment. The fact that the indictment is valid, assuming
it is, is not a defense to a motion for a bill of particulars,
United States v. Faulkner, 53 F.R.D. 299, 310 (D. Wis. 1971),
inasmuch as the underlying purpose of Rule 7(f) of the Federal
Rules of Criminal Procedure is not to cure defects in the
Government's pleadings. In fact, a bill of particulars cannot save
an invalid indictment. United States v. Farinas, 299 F. Supp. 852
(S.D.N.Y. 1969).
(4)
The purposes of a bill of particulars are 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 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.
United States v. Haskins, 345 F.2d 11, 114 (6th Cir. 1965); United
States v. Francisco, 575 F.2d 815, 818 (10th Cir. 1978). See also
United States v. Roberts, 174 Fed. Appx. 475, *1-2 (11th Cir.
2006). Failure to grant a motion for bill of particulars may
constitute reversible error. United States v. Sharpe, 438 F.3d
1257, 1263 (11th Cir. 2006).
(5)
To serve the purposes stated above, Defendant requests that
this Court order the Government to provide the Defendant with the
complete names of all known alleged co-conspirators and aiders and
abettors. He also seeks further clarification of the time frame of
the conspiracy.
(13)
WHEREFORE, it is respectfully requested that this Court exercise its sound discretion and order the United States to provide the particulars requested herein so as to assure that the Defendant may adequately prepare for trial and avoid prejudicial surprise.
Dated: This 29th day of January, 2010.
Respectfully submitted,
s/ Jake Waldrop
JAKE WALDROP
GEORGIA STATE BAR NO. 731117
ATTORNEY FOR DARRYL HORTON
Federal Defender Program, Inc.
Suite 1700, The Equitable Building
100 Peachtree Street, N.W.
Atlanta, Georgia 30303
(404) 688-7530
Jake_Waldrop@fd.org |
