The opinion of the court was delivered by: Richard Seeborg United States District Judge
United States District Court For the Northern District of California
ORDER DENYING DEFENDANT'S MOTIONS
(1) TO DISMISS THE INDICTMENT,
(2) TO COMPEL COMPLIANCE WITH ORDER FOR
BILL OF PARTICULARS AND
(3) TO STRIKE BILL OF PARTICULARS
possession of a firearm in a murder and use and possession of a firearm in relation to a crime of 24 violence, again moves to dismiss the indictment, this time for failure to comply with the Court's 25 previous order for a bill of particulars. In the alternative, Ablett moves to require further 26 particularization by the Government and to have paragraphs 1, 3(d) and 5(a)-(k) of the 27 Government's Bill of Particulars stricken as improper indictment amendments. For the reasons 28 stated below, the motion is denied.
Defendant Christopher Bryan Ablett, charged with murder in aid of racketeering, use and crimes arising from the alleged September 2, 2008 killing of Mark Guardado, the purported President of the San Francisco Chapter of the Hell's Angels. Count One alleges that Ablett 6 murdered Guardado for the purpose of gaining entrance to, maintaining, or increasing his position in 7 the Mongols, an enterprise which allegedly engages in racketeering activity, in violation of 18 8
On July 23, 2009, a federal grand jury returned an indictment charging Ablett with three U.S.C. § 1959, the Violent Crimes in Aid of Racketeering Activity ("VICAR") statute. Count Two 9 alleges that he used and possessed a firearm in furtherance of committing the murder in Count One, 10 in violation of 18 U.S.C. § 924(j)(1). Count Three alleges that he used a firearm in furtherance of the crime of violence in Count One, in violation of 18 U.S.C. § 924(c)(1)(A).
On April 23, 2010, Ablett filed three motions to dismiss the indictment, a motion to stay and 13 a motion for a bill of particulars. On August 3, 2010, The Court denied the motions to dismiss and 14 to stay, and granted in part and denied in part the motion for a bill of particulars. In the August 3 15
Order, the Court required the Government to, (1) "clarify in paragraphs 1 and 4 of the Indictment 16 the time period encompassed within the phrase '[a]t all times relevant to this Indictment,'" and (2) 17 "clarify the precise offense or other acts included within the phrase 'among other things' in 18 paragraph 1 of the Indictment, within the phrase 'include, but are not limited to' in paragraphs 5 and 19 'including' in paragraphs 6(a) and 7 of the Indictment." Doc. 54 at 5-6. The Government filed a 21 Bill of Particulars on September 2, 2010, and on October 14, 2010 Ablett filed this motion to 22 dismiss. The parties appeared for oral argument on the motion on November 2, 2010. 23
The decision to grant or deny a bill of particulars rests within the trial court's discretion, and 25 is appropriate where an indictment is ambiguous such that a defendant needs clarification in order to 26 prepare a defense. U.S. v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983) (citations omitted). "[A bill of 27 particulars] is designed to apprise the defendant of the specific charges being presented to minimize 28 the danger of surprise at trial, to aid in preparation and to protect against double jeopardy." Id. In
United States District Court For the Northern District of California of the Indictment, in the word 'includes' in paragraph 6(a) of the Indictment, and in the word 20 other words, the purpose of a bill of particulars is to clarify ambiguities in an indictment, not to 2 serve as a replacement for discovery requests. Id.; see also, United States v. Ryland, 806 F.2d 941, 3 942 (9th Cir.1986) ("[a] defendant is not entitled to know all the evidence the government intends to 4 produce but only the theory of the government's case"); U.S. v. Giese, 597 F.2d 1170, 1180-1181 5
After an indictment has been returned, the charges may not be expanded through amendment, except by a superseding indictment returned by the grand jury. Russell v. United 8 (9th Cir. 1979) ("full ...