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United States v. Nero

United States District Court, E.D. Michigan, Southern Division

August 6, 2019

UNITED STATES, Plaintiff,
v.
D-5 HAROLD NERO, Defendant.

          OPINION & ORDER DENYING DEFENDANT HAROLD LASHAWN NERO'S MOTION FOR BILL OF PARTICULARS (DKT. 217)

          MARK A. GOLDSMITH United States District Judge.

         This criminal case involves multiple defendants, all of whom were indicted by a grand jury on charges stemming from their alleged roles in a large human trafficking and drug distribution conspiracy at the Victory Inn Hotel on Michigan Avenue in Detroit, Michigan. Defendant Harold Lashawn Nero has filed a motion for a bill of particulars (Dkt. 217), [1] to which the Government has filed a response in opposition to the motion (Dkt. 221). No. reply brief was filed. For the reasons stated below, the Court denies the motion.

         I. BACKGROUND

         Because the Court has previously described the factual and procedural background of this case in greater detail in other opinions, it need not do so again for purposes of the present motion. See, e.g., 7/15/2019 Op. & Order (Dkt. 306) (denying Defendant Ford's motion for bond).

         II. STANDARD OF DECISION

         Under Federal Rule of Criminal Procedure 7(c), an indictment must include a “plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). It is well known that an indictment is legally insufficient unless “it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117 (1974); see also United States v. Schaffer, 586 F.3d 414, 422 (6th Cir. 2009) (“[T]he indictment must: (1) ‘set out all of the elements of the charged offense and must give notice to the defendant of the charges he faces,' and (2) ‘be sufficiently specific to enable the defendant to plead double jeopardy in a subsequent proceeding, if charged with the same crime based on the same facts.'” (quoting United States v. Douglas, 398 F.3d 407, 411 (6th Cir. 2005))); United States v. Chichy, 1 F.3d 1501, 1504 n.3 (6th Cir. 1993) (“An indictment as drafted is presumed sufficient if it tracks the statutory language, cites the elements of the crimes charged, and provides approximate dates and times.” (collecting cases)).

         Although an indictment may be legally sufficient for purposes of Rule 7(c) and Hamling, it may nonetheless fail to provide enough detail to enable a defendant to meaningfully prepare for trial. Accordingly, Rule 7(f) states that the Court “may direct the government to file a bill of particulars.” Fed. R. Crim. P. 7(f); see also 1 Charles Alan Wright, et al., Federal Practice and Procedure § 130 (4th ed.) (“A bill of particulars is a formal written statement by the prosecutor providing details of the charges against the defendant.”). A bill of particulars is meant to serve the following purposes:

(1) to inform the defendant of the nature of the charge against him with sufficient precision to enable him to prepare for trial; (2) to avoid or minimize the danger of surprise at the time of trial; and (3) to enable him to plead his acquittal or conviction in bar of another prosecution for the same offense where the indictment itself is too vague, and indefinite for such purposes.

United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976); see also United States v. Salisbury, 983 F.2d 1369, 1375 (6th Cir. 1993) (“A bill of particulars is meant to be used as a tool to minimize surprise and assist defendant in obtaining the information needed to prepare a defense and to preclude a second prosecution for the same crimes.”). According to the Sixth Circuit, “the test in ruling on a motion for a bill of particulars is whether providing such details is necessary to the preparation of the defense and avoidance of prejudicial surprise.” United States v. Musick, 291 Fed.Appx. 706, 724 (6th Cir. 2008); see also United States v. Kogan, 283 F.Supp. 3D 127, 132 (S.D.N.Y. 2017) (“[T]he proper inquiry on a motion to compel a bill of particulars is whether the information sought is necessary, not whether it is helpful.”).

         Importantly, 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.” Salisbury, 983 F.2d at 1375; see also United States v. Smith, 776 F.2d 1104, 1111 (3d Cir. 1985) (holding that a bill of particulars “is intended to give the defendant only that minimum amount of information necessary to permit the defendant to conduct his own investigation.”); United States v. Martin, 822 F.2d 1089, at *3 (6th Cir. 1987) (Table) (per curiam) (“[A] bill of particulars is not to be used as a general discovery device. . . . This is particularly so in a conspiracy case where the Government is not required to disclose all overt acts alleged to have occurred in furtherance of the conspiracy.”). For example, a “defendant is not entitled to a bill of particulars if the purpose of the bill is to obtain a list of the Government's witnesses or to discover all of the overt acts that might be proven at trial.” Musick, 291 Fed.Appx. at 724. Nor is a bill of particulars meant to allow the defendant a preview of the Government's legal theory of the case. Kogan, 283 F.Supp.3d at 132.

         III. DISCUSSION

         A grand jury indicted Nero and eight co-defendants for their alleged roles in a conspiracy at the Victory Inn. Nero is charged in nine of the nineteen counts-each time with co-conspirators. The parties agree that each count tracks the relevant statutory language. Nero Mot. at 6-7; Gov't Resp. at 6. Nero argues, however, that merely alleging the elements of a conspiracy without any facts or overt acts showing Nero participated in an alleged conspiracy spanning more than two years is constitutionally deficient. Nero Mot. at 6-7. He asserts that to prepare for trial, he needs information to narrow the time frame of his alleged involvement. Specifically, he seeks the following:

1. The approximate dates and locations of any meetings or conversations in which each defendant allegedly participated;
2. The approximate dates when each defendant allegedly aided and abetted, participated, or aided in the ...

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