Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Heitzenrater

October 3, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JOSEPH HEITZENRATER, 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, Joseph Heitzenrater ("the defendant"), is charged in a two count indictment with having violated Title 18 U.S.C. § 1512(k) (Count 1) and Title 18 U.S.C. § 1542(c)(1) and § 2 (Count 2). (Docket #1).

The defendant filed an omnibus discovery motion (Docket #13) wherein he sought broad discovery of various materials and information. Upon receiving the government's Response to that motion (Docket #14), the defendant filed a motion partially withdrawing specific requests contained in his aforesaid omnibus discovery motion. (Docket #16). The defendant's motion for partial withdrawal of his discovery requests is hereby GRANTED. The remaining requests of the defendant are as follows: (1) A bill of particulars; (2) Production of Rule 16, Fed. R. Crim. P. materials; (3) Production of Jencks materials and statements; (4) Preservation of "rough notes and other evidence;" (5) Permission allowing defense counsel to participate in voir dire of prospective jurors; (6) An audibility hearing; (7) Disclosure of grand jury transcripts; and (8) Permission to make further motions. The government has filed a Response to these requests of the defendant. (Docket #14).

Each of these requests will be separately addressed herein.

DISCUSSION

1. Defendant's Request For A Bill Of Particulars:

The defendant has moved pursuant to Rule 7(f) of the Fed. R. Crim. P. for a bill of particulars containing a detailed description of the times, places and events as well as alleged participants of the conspiracy alleged in Count 1 of the Indictment on the basis that the particulars are necessary to enable the defendant: (1) to prepare for trial; (2) to prevent unfair surprise at the time of trial; (3) to preclude successive prosecutions; and (4) to determine whether certain defenses are available.

In its Response (Docket #14), the government has provided additional information than that which is contained in the Indictment. (Docket #1).

The defendant's request is DENIED. 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 he 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 charge in Count 1 of the Indictment, along with the responses provided by the government as aforesaid, clearly inform the defendant of the essential facts of the crimes charged. As a result, the defendant is not entitled to, nor is he 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.