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United States v. Cain

July 6, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ANN CAIN, DEFENDANT.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

This case was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions.

PRELIMINARY STATEMENT

The defendant, Ann Cain ("the defendant"), is charged in a multi-count Superseding Indictment along with co-defendants David Cain, Sr. and Cheryl Wagner*fn1 with having violated Title 18 U.S.C. § 1512(b)(1) and (b)(2)(D) (Count I), and Title 18 U.S.C. § 1512(b)(3) (Count III). (Docket #24).

The defendant has filed a motion wherein she seeks a bill of particulars setting forth the "dates and places of the alleged attempts to persuade or persuasion and the nature and substance of the communications" attributed to her in Counts I and III of the Superseding Indictment. (Docket #30). The defendant has also moved for a severance pursuant to Rule 14(b) of the Fed. R. Crim. P. (Docket #30).

The government has filed its opposition to the relief being sought by the defendant. (Docket #39).

DISCUSSION AND ANALYSIS

A. Defendant's Request For A Bill Of Particulars

It has become axiomatic that the function of a bill of particulars is to apprise a defendant of the essential facts of the crime for which she has been charged. United States v. Salazar, 485 F.2d 1272, 1277-78 (2d Cir. 1973); cert. denied, 415 U.S. 985 (1974); Wong Tai v. United States, 273 U.S. 77 (1927). The charges in Counts I and III of the Superseding Indictment clearly inform the defendant of the essential facts of the crime charged. As a result, the defendant is not entitled to, nor is she in need of, the "particulars" being sought for that purpose.

"A bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused." United States v. Feola, 651 F. Supp. 1068, 1132 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (2d Cir.) (mem.), cert. denied, ____ U.S. ____, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989); see also United States v. Leonelli, 428 F. Supp. 880, 882 (S.D.N.Y. 1977). "Whether to grant a bill of particulars rests within the sound discretion of the district court." United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984) (citing United States v. Burgin, 621 F.2d 1352, 1358-59 (5th Cir.), cert. denied, 449 U.S. 1015, 101 S.Ct. 574, 66 L.Ed.2d 474 (1980)); see also Bortnovsky, 820 F.2d at 574. "Acquisition of evidentiary detail is not the function of the bill of particulars." Hemphill v. United States, 392 F.2d 45, 49 (8th Cir.), cert. denied, 393 U.S. 877, 89 S.Ct. 176, 21 L.Ed.2d 149 (1968).

United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990). Therefore, the defendant's motion is DENIED.

B. Defendant's Motion For A Severance

The defendant asserts that her husband, David Cain, Sr., who is the co-defendant in this case, "is charged in the same [Superseding] Indictment under Count II," with having violated 18 U.S.C. § 1512(b)(1) and (b)(2)(D) "allegedly involving a separate act of tampering" and that she would therefore "be prejudiced by evidence, for example, of acts of tampering by her husband, David Cain, Sr." (Docket #30, ¶¶ 4, 9).

[W]hen defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent ...


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