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United States of America v. Frederick Scott Salyer

December 2, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
FREDERICK SCOTT SALYER, DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

Introduction and Summary

ORDER

Although the initial indictment was filed nearly two years ago, followed with minor modifications set forth in superseding indictments, defendant Salyer seeks a bill of particulars in several respects. Although technically within a time frame seeking a bill of particulars after arraignment on the latest superseding indictment, defendant does not relate why it took so long to understand that he did not sufficiently understand the allegations in the mostly unchanged indictment (now the Second Superseding Indictment -- hereafter "indictment") such that he could prepare a defense to the charges. It appears to the undersigned that the real purpose of this motion for bill of particulars is not to seek clarification of the indictment, but an attempt to corral the government's presentation of its case. For the reasons set forth below, with one exception, the motion for bill of particulars is denied.

The Indictment

The indictment, previously characterized by the undersigned as "fairly specific" in previous discovery motions, alleges RICO and RICO conspiracy claims, honest services wire fraud, destruction, alteration of falsification of records pertinent to a federal investigation, conspiracy in restraint of trade (price fixing and/or bid rigging), and forfeiture counts. All of the allegations relate to Salyer's and others' operation of SK Foods, at one time, a very large company engaged in the food processing business. The allegations are contained within 61 pages and contain 31 paragraphs of background information. The undersigned will reserve specific references to the indictment for the sections below which discuss every request for more particularity.

Legal Standards Regarding the Ordering of a Bill of Particulars

In determining whether a bill of particulars is warranted under Federal Rules of Criminal Procedure, Rule 7(f), the Ninth Circuit has stated: "A bill of particulars has three purposes: to apprise the defendant of the specific charges being presented so as to minimize surprise at trial, to aid the defendant in preparing for trial, and to protect against double jeopardy." United States v. Burt, 765 F.2d 1364, 1367 (9th Cir. 1985); see also, United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983); United States v. Ayers, 924 F.2d 1468, 1483-84 (9th Cir. 1991). "The decision whether to grant a request for a bill of particulars is directed to the trial court's discretion." United States v. Long, supra, 706 F.2d at 1054, and cases cited therein.

A bill of particulars is not to be used as a discovery device, with a defendant interrogating the government as to the precise details of every alleged act -- all the who, what, and where of every allegation. United States v. Giese, 597 F.2d 1170, 1181 (9th Cir. 1979). The precise rules of criminal discovery would be unnecessary if a bill of particulars were meant to serve the same purpose. "Acquisition of evidentiary detail is not the function of the bill of particulars." Hemphill v. United States, 392 F.2d 45, 49 (8th Cir. 1968).

Furthermore, even if this court were to find the indictment lacking, subsequent measures by the government and defense counsel may negate the need for a bill of particulars. In determining whether a bill of particulars is required, the court must examine the other material provided to defendant. Giese, 597 F.2d at 1180. Discovery materials are one essential component necessary to provide defendant with the information needed to prepare their case. See United States v. Mitchell, 744 F.2d 701, 705 (9th Cir. 1984); United States v. Long, 706 F.2d at 1054: ("Full discovery will obviate the need for a bill of particulars."); United States v. Buckner, 610 F.2d 570, 574 (9th Cir. 1979). However, in some cases, overwhelming discovery may necessitate a bill of particulars because the volume of material may be such that defendants will be unable to focus their investigation toward particular facts and circumstances in order to be prepared for trial. See United States v. Bin Laden, 92 F. Supp.2d 225, 234-35 (S.D. N.Y. 2000).

The court also finds that where the motion for bill of particulars is made very late in the prosecution of the case, as it has been here, the moving defendant should demonstrate why motion practice (and there has been quite a bit in this case) has not fully apprised defendant of the government's theory of prosecution.

A case which this court finds particularly similar and useful in the context of this case is United States v. Hsuan Bin Chen, 2011 WL 332713 (N.D. Cal. 2011). Chen involved a large pricing fixing conspiracy related to TFT-LCD displays used in computers and televisions. Forty-two million pages of criminal discovery had been disseminated by the prosecution. As Salyer does here for the most part, the Chen defendants sought a bill of particulars: (1) to obtain identities of co-conspirators and meeting participants, (2) specific locations where the conspiracy transpired, (3) information about meeting and statements made in the meetings; (4) all of the overt acts, (5) victim (customer) information, (6) specific information about price quotations, (7) accounting information showing gains and losses from the conspiracy. Judge Illston noted the specific discovery which should have placed defendants on sufficient notice of the nature of the charges, such as witness interview statements, and a host of other specific discovery.

The Court concludes that defendants are not entitled to a bill of particulars. The indictment adequately advises defendants of the charges against them, and defendants seek extremely detailed evidence to which they are not entitled through a bill of particulars. As one court has noted, "[a] bill of particulars, unlike discovery, is not intended to provide the defendant with the fruits of the government's investigation. Rather, it 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. Smith, 776 F.2d 1104, 1111 (3d Cir.1985) (internal citations omitted, emphasis in original).

Here, the indictment sets forth the dates of the conspiracy and the specific time periods each of the defendants are alleged to have participated in it, a description of the type of antitrust conspiracy charged and the specific types of TFT-LCD covered by the indictment, a description of the goals of the conspiracy, as well as a detailed description of the means and methods by which those goals were to be accomplished. The indictment is far more detailed than other indictments that prior Ninth Circuit cases have found to be sufficient. See, e.g., United States v. Miller, 771 F.2d 1219, 1226-27 (9th Cir.1985) (upholding an indictment that charged "a continuing conspiracy existed for a period of about five years, '[b]eginning at least as early as January 1978, and continuing until at least October 1982.' [and that listed] the actions which the co-conspirators took to form and carry out the conspiracy (i.e., discussions by telephone or at meetings at defendants' business premises, bars, restaurants, and gasoline stations which they owned, operated or at which they controlled the retail prices of gasoline), and charges that the defendants attempted to enforce adherence to their price-fixing scheme by informing other competitors of the conspirators' agreements, personally and by telephone.").

The Court agrees with the government that the indictment need not specify the overt acts committed in furtherance of the charged conspiracies, and that it is unreasonable to require the government to "state the circumstances under which, and the words or conduct by means of which" defendants and every alleged co-conspirator entered into the alleged conspiracies. See United States v. DiCesare, 765 F.2d 890, 897 (9th Cir.1985) (defendants not entitled to bill of particulars in order to obtain names of unknown co-conspirators, exact date on which alleged conspiracy began, or statement of all overt acts), amended on other grounds, 777 F.2d 543 (1985); see also Miller, 771 F.2d at 1226 ("An indictment charging a violation of section one of ...


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