Recognizing that in general the rights of the accused are amply protected at other states of a criminal proceeding, the United States Supreme Court held that a Franks hearing is required only, inter alia, if and when the defendant offers substantial and reliable proof questioning the truthfulness of the warrant affiant's representations as to his own activities, knowledge, beliefs and conclusions. See Franks v. Delaware, supra, 438 U.S. at 169-71. Defendant has failed to offer any proof from which one could infer that the Agent deliberately falsified his belief as to the nature of the allegedly illegal sales of ladies' and childrens' garments. Weingartner has offered no proof (nor any explanation of the absence of such proof) that Agent Luksic knew or should have known that the goods in question were legitimately in Weingartner's possession. "Allegations of negligence or innocent mistake are insufficient" to meet the first prong of the Franks test. Franks v. Delaware, supra, 438 U.S. at 171. Thus, even if Agent Luksic possessed information "[creating] a duty of further inquiry, these assertions at best raise the possibility of negligence on his part." United States v. Young Buffalo, supra, 591 F.2d at 510. And Agent Luksic cannot be required or even expected to make further inquiries of the target of his undercover investigation.
In sum, defendant's affidavit and offer of proof falls far short of the "substantial preliminary showing" required by the Franks Court.
/ His application for a hearing on the veracity of the warrant affidavit shall be denied.
III. BILL OF PARTICULARS
Our attention finally turns to defendant's requests for a bill of particulars, Rule 7(f), F.R.Crim.P.
In United States v. Addonizio, 451 F.2d 49 (3d Cir. 1971), cert. denied, 405 U.S. 936, 92 S. Ct. 949, 30 L. Ed. 2d 812 (1972), the court described the function served by a bill of particulars:
"'The purpose of the bill of particulars is to inform the defendant of the nature of the charges brought against him to adequately prepare his defense, avoid surprise during the trial and to protect him against a second prosecution for an inadequately described offense.' United States v. Tucker 262 F. Supp. 305, 308 (S.D.N.Y. 1966). A bill of particulars should fulfill this function 'when the indictment itself is too vague and indefinite for such purposes.' United States v. Haskins, 345 F.2d 111, 114 (6th Cir. 1965). Accord, Wyatt v. United States, 388 F.2d 395, 397 (10th Cir. 1968)."
Id. at 63-64. See also 8 Moore's Federal Practice P7.06 (2d ed. 1979). "Within this general framework, the granting of a Bill of Particulars lies solely within the Court's discretion." United States v Greater Syracuse Bd. of Realtors, 438 F. Supp. 376, 379 (N.D.N.Y. 1977), citing, inter alia, Wong Tai v. United States, 273 U.S. 77, 47 S. Ct. 300, 71 L. Ed. 545 (1927). Accord, United States v. Addonizio, supra, 451 F.2d at 64 ("In the final analysis then, the granting of a bill of particulars remains a discretionary matter with the trial court...").
Addonizio implies that the district court's assessment of a request for a bill of particulars begins with a careful examination of the subject indictment. Count I of the instant indictment provides as follows:
"That in or about December, 1977, in the District of New Jersey, the defendant GEORGE C. WEINGARTNER having been indicted on August 6, 1974 in the United States District Court for the District of New Jersey, for crimes punishable by imprisonment for terms exceeding one year, that is, conspiracy, obstruction of justice and unlawfully mailing and carrying in interstate commerce an electronic device, in violation of Title 18, United States Code, Sections 371, 1503 and 2512(1)(a), respectively, and with knowledge thereof, unlawfully did receive a firearm, that is a Sturm Ruger revolver, Model Super Black Hawk, caliber.44 magnum, serial number 81-78877, which had been shipped and transported in interstate commerce.
In violation of Title 18, United States Code, Sections 922(h)(1) and 924(a).
Counts II and III of the instant indictment are similarly drawn.
Defendant's requests principally
/ seek information concerning the Government's decision-making process in moving for dismissal of the 1974 indictment and that of a related case, Criminal No. 74-314 (which was also dismissed pursuant to Rule 48(a), F.R.Crim.P.). For example, Request 8 states:
"State on what date the United States Attorney's Office began discussions on the issue of dismissal on [sic] Indictment Criminal No. 74-313 against (a) George Weingartner; (b) Charles Sackerman; (c) Richard Sirchie; (d) Vincent Verdamo."
Similar in scope is Request 9, which asks that the Government:
"State the dates of all communications between the United States Attorney's Office and the Department of Justice with respect to the potential dismissal of Criminal No. 74-313 with respect to each and every individual named in sub-parts contained in question no. 8, above."
For the following reasons, the Court denies defendant's requests for a bill of particulars in toto. First, the subject indictment is not unduly vague. It alleges the approximate dates and precise firearms allegedly illegally received by Weingartner. It also alleges with specificity the underlying 1974 indictment and defendant's knowledge thereof. In sum, each of the three counts of the subject indictment provides defendant with more than sufficient notice of the nature of the charges so as to enable him to adequately prepare his defense and avoid double jeopardy. Cf. United States v. Addonizio, supra, 451 F.2d at 63-64.
Second, information regarding the Government's decisions to dismiss the 1974 indictment against Weingartner's co-defendants is irrelevant to the subject indictment against this defendant. Such information will neither further inform defendant of the nature of these charges nor enable him to avoid double jeopardy.
Third, with respect to defendant's requests for information concerning dismissal of the 1974 indictment against him, the Court will not grant leave to circumvent the discovery limitations embodied in Rule 16, F.R.Crim.P.
Finally, and perhaps most significantly, the dismissal of the 1974 indictment is neither material to nor exculpatory of the charges alleged in the subject indictment. As earlier stated, the section 922(h)(1) offense is complete upon the receipt of firearms, inter alia, by a person then under the requisite indictment. See Part II, c., d., supra.
In summary, defendant's requests for a bill of particulars should be denied in all respects.
For all of the foregoing reasons, the Court concludes that defendant Weingartner's motions: (a) to dismiss this indictment; (b) for a hearing on the veracity of the search warrant affidavit and for suppression of evidence seized pursuant to various warrants based on that affidavit; and (c) requesting a bill of particulars; shall each be denied in all respects. The Government is requested to submit to Chambers an Order effectuating this Opinion within 10 days of this date.
The parties are hereby given notice that the trial of this action shall commence March 17, 1980, at 10:00 a.m. in the forenoon.
© 1992-2004 VersusLaw Inc.