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United States v. Tam

United States District Court, N.D. California, San Jose Division

August 31, 2017

KENNETH TAM, Defendant.



         Defendant Kenneth Tam's (“Defendant”) Motion for a Bill of Particulars (Dkt. No. 32) and Motion for Discovery (Dkt. No. 33) came on for hearing on July 31, 2017. Having heard the arguments of counsel and considered the pleadings filed by both parties, the court GRANTS IN PART and DENIES IN PART Defendant's motions for the reasons explained below.

         I. BACKGROUND

         Defendant is charged in an Indictment returned on September 22, 2016, with the following counts: (1) Conspiracy to Commit Mail Fraud in violation of 18 U.S.C. § 1349 (“Count 1”); (2) Money Laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (“Count 2”); (3) Structuring Financial Transactions in violation of 31 U.S.C. § 5324(a)(1) and (a)(3) (“Count 3”); and (4) False Statements to Government Agents in violation of 18 U.S.C. § 1001(a)(2) (“Count 4”). The Indictment also includes Forfeiture Allegations pursuant to 18 U.S.C. §§ 982(a)(1) and 981(a)(1)(C); 28 U.S.C. § 2461(c); and 31 U.S.C. § 5317(c). Apart from Defendant, other individuals were charged with similar violations in a related, but separate, Indictment.

         The counts against Defendant arise from his alleged theft of electronic equipment from CISCO Systems Inc. while he was an employee. The Government alleges Defendant sold the stolen products to another individual who altered the product's serial numbers and sold them to others. The Defendant allegedly received cash and checks for the stolen property and created bank accounts and structured deposits and withdrawals designed to hide his identity and avoid detection.


         A. Authority for Discovery Order

         The court has authority under the Federal Rules of Criminal Procedure, this district's Criminal Local Rules, and Ninth Circuit precedent to issue orders relating to the management of criminal discovery.

         Looking first at the Federal Rules of Criminal Procedure, the court observes they “are to be interpreted to provide for the just determination of every criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate unjustifiable expense and delay.” Fed. R. Crim. P. 2. Under Rule 12(b)(4), “at the arraignment or as soon afterward as practicable, ” the defendant may request notice of the government's intent to use any evidence that the defendant may be entitled to discover under Rule 16. In turn, Rule 16 identifies particular materials that the government must disclose to the defense, including the defendant's oral statements in response to interrogation, as well as particular materials that are not subject to disclosure, such as statements made by prospective government witnesses except as provided in the Jencks Act, 18 U.S.C. § 3500. Under Rule 16(d), the court, in regulating discovery, may on a finding of good cause either deny, restrict, or defer discovery or inspection, or grant other appropriate relief or enter any other order that is just under the circumstances.

         Turning to the rules of this district, Criminal Local Rule 16-1 provides procedures for disclosure and discovery in criminal actions. Under Rule 16-1, the attorney for the government and the attorney for the defendant shall confer within 14 days after a defendant's plea of not guilty with respect to a schedule for disclosure of the information required by Federal Rule of Criminal Procedure 16. The assigned Judge or Magistrate Judge may set a schedule for disclosure of information required by Rule 16 or any other applicable rule, statute or case authority.

         Additionally, the Ninth Circuit has recognized the district court's inherent power to regulate and control criminal discovery. In order to effectuate the speedy and orderly administration of justice, “a district court has the authority to enter pretrial case management and discovery orders designed to ensure that the relevant issues to be tried are identified, that the parties have an opportunity to engage in appropriate discovery and that the parties are adequately and timely prepared so that the trial can proceed efficiently and intelligibly.” United States v. Grace, 526 F.3d 499, 508-509 (9th Cir. 2008).

         The Government also has a separate obligation to disclose and provide exculpatory information or information that impeaches the Government's case. See Brady v. Maryland, 373 U.S. 83 (1963). This is a continuing obligation that is self-executing. A violation of Brady occurs when the Government fails to disclose evidence materially favorable to the accused.

         B. Bill of Particulars

         Rule 7(f) of the Federal Rules of Criminal Procedure provides that “[t]he court may direct the government to file a bill of particulars.” A bill of particulars is appropriate where a defendant requires clarification in order to prepare a defense and is “designed to apprise the defendant of the specific charges being presented to minimize danger of surprise at trial, to aid in preparation and to protect against double jeopardy.” United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983); United States v. Mitchell, 744 F.2d 701, 705 (9th Cir. 1984). The decision to require a bill of particulars is within a trial court's discretion, which is broad under these circumstances. Long, 706 F.2d at 1054; Will v. United States, 389 U.S. 90, 99 (1967).

         The Ninth Circuit has held that when deciding whether to order a bill of particulars, “a court should consider whether the defendant has been advised adequately of the charges through the indictment and all other disclosures made by the government.” Id. However, “[a] defendant is not entitled to know all the [e]vidence the government intends to produce.” United States v. Giese, 597 F.2d 1170, 1181 (9th Cir. 1979) (internal citations omitted). The purposes of a bill of particulars are served when “the indictment itself provides sufficient details of the charges and if the Government provides full discovery to the defense.” Mitchell, 744 F.2d at 705.

         No requirement exists in conspiracy cases for the Government to “disclose even all the overt acts in furtherance of the conspiracy.” Giese, 597 F.2d. at 1180 (citing United States v. Murray, 527 F.2d 401, 411 (5th Cir. 1976)); see United States v. Armocida, 515 F.2d 49, 54 (3d Cir. 1975); see also United States v. Carroll, 510 F.2d 507, 509 (2d Cir. 1975). Further, the Government “is not required to furnish the name[s] of all other co-conspirators in the bill of particulars.” See United States v. Crayton, 357 F.3d 560, 568 (6th Cir. 2004).

         III. ...

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