a bill of particulars." Rule 7(f) was amended in 1966 "to encourage a more liberal attitude by the courts toward bills of particulars without taking away the discretion which courts must have in dealing with such motions in individual cases." United States v. Rosa, 891 F.2d 1063, 1066 (3d Cir. 1989) (quoting Fed. R. Crim. P. 7 advisory committee's note to 1966 amendment).
There are conflicting considerations that a district court should consider in determining whether to grant or deny a bill of particulars. On the defendant's side, bills of particular should be granted "whenever an indictment's failure to provide factual or legal information significantly impairs the defendant's ability to prepare his defense or is likely to lead to prejudicial surprise at trial." Rosa, 891 F.2d at 1066. See also United States v. Addonizio, 451 F.2d 49, 63-64 (3d Cir. 1974), cert. denied, 405 U.S. 936, 30 L. Ed. 2d 812, 92 S. Ct. 949 (1972) (purpose of bill of particulars is "to inform the defendant of the nature of the charges brought against him [or her], to adequately prepare his [or her] defense, to avoid surprise during the trial and to protect him [or her] against a second prosecution for an inadequately described offense."). Countervailing considerations range from the "personal security of witnesses to the unfairness that can result from forcing the government to commit itself to a specific version of the facts before it is in a position to do so." Rosa at 1066.
Furthermore, when discovery provided by the government fills in the outline of the indictment, the necessity for a bill of particulars declines. See United States v. Boffa, 513 F. Supp. 444, 485 (D. Del. 1980). However, "[a] bill of particulars, unlike discovery, is not intended to provide the defendant with the fruits of the government's investigation." United States v. Smith, 776 F.2d 1104, 1111 (3d Cir. 1985) (citations omitted). A bill of particulars is intended to give the defendant "only the minimum amount of information necessary to permit the defendant to conduct his own investigation." Id.
In this case, the government has represented to the court that it has provided the defendant with Seton Hall files relating to all of the defendant's contributions to Seton Hall. The government further represents to the court that these files contain copies of Caruso's checks and Seton Hall's refund checks. Additionally, the government has represented that the files contain copies of correspondence, and phone message notes.
The paragraph of the indictment at issue, Paragraph 6 of Counts 4 and 5, states that the defendant purportedly made approximately $ 176,175 in contributions to Seton Hall during the years 1987 to 1990. The discovery provided to the defendant by the government, consisting, inter alia, of all contribution checks made by the defendant to Seton Hall, surely "fills in the outline of the indictment" sufficiently enough that the defendant is adequately informed of the charges being made against him.
Given the discovery provided by the government in this case and the factual and legal information provided in the indictment, I conclude that the defendant has been provided with enough information to adequately inform him of the nature of the charges brought against him, to prepare his defenses, to avoid surprise during the trial, and to protect him against a second prosecution for an inadequately described offense. See Addonizio, 451 F.2d at 63-64.
Thus, after weighing the relevant considerations, I have concluded that the defendant is not entitled to a bill of particulars with respect to Counts 4 and 5 of the indictment.
E. Motion for a Bill of Particulars on Counts 6 through 9
Next, the defendant has moved for a bill of particulars on Counts 6 through 9 of the indictment. Counts 6 through 9 of the indictment charge the defendant with Interstate Transportation of Checks Taken by Fraud. The defendant acknowledges that the Counts adequately inform him of the charge of Interstate Transportation of Checks Taken By Fraud, but the defendant argues that the indictment is silent "as to the means by which the defendant caused the checks to be transported in interstate commerce, the dates the checks allegedly were transported, and the individuals or institutions who completed the act of transportation." Def. Brief. at 21. The defendant thus claims that he is entitled to a Bill of Particulars.
The government claims in opposition that the indictment specifies dates, documents and the acts with which the defendant is charged. Additionally, the government argues that the defendant has received not only a detailed indictment, but has also received significant discovery. Specifically, the government claims
In this case, defendant not only has a detailed indictment, but in discovery defendant had access to the checks, correspondence, and internal memoranda, all of which provide the information defendant seeks. The checks, for example, show the banks on which they were drawn, the banks in which they were deposited, the dates they were transacted, and the identity of the endorsers.
Gov. Brief, at 19.
I have previously set forth the standards governing courts' decisions regarding bills of particulars. I incorporate that discussion here, by reference, and will not repeat the standards. However, after weighing the competing considerations governing the grant or denial of bills of particulars, I have concluded that the defendant is not entitled to a bill of particulars with respect to counts 6 through 9 of the indictment.
The government has provided the defendant with discovery which, together with the detailed information contained in the indictment, I find sufficiently provides the defendant with enough information to adequately inform him of the nature of the charges brought against him, to prepare his defenses, to avoid surprise during the trial, and to protect him against a second prosecution for an inadequately described offense. See Addonizio, 451 F.2d at 63-64.
Accordingly, I will deny the defendant's motion for a bill of particulars with respect to Counts 6 through 9 of the indictment.
F. Motion to Strike or Dismiss the Aiding and Abetting Allegations from the Indictment, or Alternatively, Motion for a Bill of Particulars
Next, the defendant directs the court's attention to the 18 U.S.C. § 2 aiding and abetting allegations charged against him in Counts 1 - 9 and 14 - 18 of the indictment. The defendant points out that the indictment does not allege the elements of a § 2 violation. Additionally, the defendant contends that the indictment does not set forth any facts which would support the charge that the defendant acted as an aider and abettor or as a principal. According to the defendant, the indictment thus "provide[s] Mr. Caruso with no means of preparing to defend against these charges and no basis for pleading double jeopardy, if necessary, in the future." Def. Brief. at 24. The defendant seeks either the dismissal of all of the aiding and abetting charges, or a bill of particulars on the counts at issue.
The government has argued in opposition that
It is routine practice for the United States to charge Section 2 as a precautionary measure to cover situations where the defendant causes another to commit one or more elements of the crime charged. . . . Thus, for example, in a situation where defendant does not actually mail the letter or personally transport the check interstate, but instead causes it to be done, his conduct will nonetheless satisfy the particular elements of the mail fraud statute . . . or the interstate transportation of money taken by fraud statute.