United States District Court, N.D. California, San Jose Division
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
BILL OF PARTICULARS; GRANTING IN PART AND DENYING IN PART
MOTION FOR DISCOVERY RE: DKT. NOS. 32, 33
J. DAVILA UNITED STATES DISTRICT JUDGE
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.
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.
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
Authority for Discovery Order
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.
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.
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.
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).
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
Bill of Particulars
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).
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.
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