Free Order on Motion for Bill of Particulars - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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Filed 01/17/2006

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Wiley Y. Daniel Criminal Case No. 00-CR-531-D UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN and 2. RUDY CABRERA SABLAN, Defendants. _____________________________________________________________________ ORDER _____________________________________________________________________ I. INTRODUCTION THIS MATTER is before the Court on Rudy Sablan' Motion for Bill of Particulars s filed August 24, 2001 (R-25A). This motion was heard at the hearing held the week of December 5, 2005. For the reasons stated on the record at the hearing and in this Order, the Motion for Bill of Particulars is denied. II. ANALYSIS Rudy Sablan' Motion for Bill of Particulars asserts that the Government has s chosen to charge Rudy Sablan with the act of killing Joey Estrella [" Estrella" and also ] with aiding, abetting, counseling, commanding, inducing and procuring William Sablan' participation in the commission of the offense. Defendant asserts that the s indictment is not specific as to whether the Government contends that Rudy Sablan actually killed Estrella or simply aided and abetted William Sablan in the killing.

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Rudy Sablan argues that a bill of particulars should be ordered for the following reasons: (1) in the grand jury testimony that led to the indictment, the Government put forth evidence that William Sablan killed Estrella, and none of the discovery has shown that any act of Rudy Sablan caused the death of Estrella; and (2) the evidence shows no acts performed by Rudy Sablan that aided or abetted the commission of this offense by William Sablan. Defendant asserts that the Government should be required to furnish particulars concerning any overt act enumerated in the indictment which the Government intends to offer evidence of at trial to support its claims. The purpose of the motion according to Defendant is not to elicit unwarranted discovery, but to adequately inform him of the charges so that he can appropriately directly his own pretrial investigation and defense preparation. In a supplement to the motion filed July 1, 2002, Rudy Sablan argues that a bill of particulars is necessary and required by the Eighth Amendment. In cases where homicide involves more than one participant, Defendant asserts that the Eighth Amendment requires individual consideration of the actions and mental state of each defendant, citing Edmund v. California, 458 U.S. 782 (1982). Thus, the focus must be on Rudy Sablan' culpability, not the culpability of others who may have participated in s the offense. Turning to my analysis, FED. R. CRIM. P. 7(f) states that " [t]he Court may direct the filing of a bill of particulars." According to the Tenth Circuit, "[t]he purpose of a bill ` of particulars is to inform the defendant of the charge against him with sufficient precision to allow him to prepare his defense, to minimize surprise at trial, and to -2-

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enable him to plead double jeopardy in the event of a later prosecution for the same offense.' United States v. Higgins, 2 F.3d 1094, 1096 (10th Cir. 1993) (quotations and " internal quotation marks omitted). " is not the function of a bill of particulars ` It to disclose in detail the evidence upon which the government will rely at the trial' or " " to obtain a list of the government' witnesses." United States v. Barbieri, 614 F.2d 715, s 719 (10th Cir. 1980) (quotation omitted). Further, a bill of particulars " not a discovery device." United States. v. Dunn, is 841 F.2d 1026, 1029 (10th Cir. 1988). Indeed, full disclosure of discovery by the government generally obviates the need for a bill of particulars. See United States v. Sturmoski, 971 F.2d 452, 460 (10th Cir. 1992); United States v. Gabriel, 715 F.2d 1447, 1449 (10th Cir. 1983); see also United States v. Rosenthal, 793 F.2d 1214 (11th Cir. 1986); United States v. Williams, 679 F.2d 504 (5th Cir. 1982); United States v. Giese, 597 F.2d 1170 (9th Cir.), cert. denied, 444 U.S. 979 (1979). A motion for a bill of particulars is addressed to the sound discretion of the trial court, and will not be overturned unless there was an abuse of discretion. Cefalu v. United States, 234 F.2d 522 (10th Cir. 1956). To find such an abuse, defendant must show that he was " actually surprised at trial and thereby incurred prejudice to his substantial rights." Dunn, 841 F.2d at 1029. In other words, the Tenth Circuit " examine[s] whether the failure of the government to furnish a bill of particulars caused [the defendant] to suffer prejudicial surprise at trial or impeded his ability to present his defense." Higgins, 2 F.3d at 1096.

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Case 1:00-cr-00531-WYD

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In the case at hand, I first note that I previously denied William' Sablan' Motion s s for Bill of Particulars (filed May 10, 2001) by Order dated June 22, 2001. I also find that Rudy Sablan' Motion for Bill of Particulars should be denied. First, Defendants s have been given full discovery, and the Government asserts that its theory of the case has been disclosed in the discovery. Second, while the full details of the evidence against each Defendant may not be clear, it is not the purpose of the Bill of Particulars to provide same. See Barbieri, 614 F.2d at 719 (noting that Barbieri' motion " s appears to be an improper request for evidentiary detail" see also Dunn, 841 F.2d at 1029 (finding that where the indictment ); " quoted the language of [the statute at issue] and included the dates of the alleged activity, the place, and the specific controlled substance [at issue]"no bill of particulars was needed under Rule 7, since the government was not required to go further and allege in detail the factual proof to be relied on); Giese, 597 F.2d at 1181 (the defendant's request for the " when, where and how"of each act in furtherance of the conspiracy was equivalent to a request for complete discovery of the government's evidence, which is not the purpose of a bill of particulars). Finally, as to Rudy Sablan' argument that a bill of particulars must be ordered s to avoid an Eighth Circuit violation, I disagree. The case relied on by Defendant, Edmund v. Florida, 458 U.S. 782 (1982), did not involve a bill of particulars or whether it was appropriate in connection with a murder case. Instead, Edmund discussed the fact that the punishment, including the death penalty, must be tailored to the defendant' participation in the crime and " s must be tailored to his personal -4-

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responsibility and moral guilt." Id. at 801. Thus, " focus must be on [the the defendant' culpability, not on that of those who committed the [crime], for we insist on s] ` individualized consideration as a constitutional requirement in imposing the death sentence." Id. at 798. Here, the Court will obviously attempt to ensure that any punishment, including the death penalty if applicable, will be tailored to each Defendant' culpability based on the evidence. This is not grounds, however, for the s Court to order a bill of particulars. Based upon the foregoing, it is ORDERED that Rudy Sablan' Motion for Bill of Particulars filed August 24, s 2001, as supplemented July 1, 2002, is DENIED. Dated: January 17, 2006 BY THE COURT:

s/ Wiley Y. Daniel Wiley Y. Daniel U. S. District Judge

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