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United States v. Braun

United States District Court, E.D. Washington

April 22, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT J. BRAUN, Defendant.

ORDER ADDRESSING DEFENDANT'S PRETRIAL MOTIONS AND MEMORIALIZING THE COURT'S ORAL RULINGS

ROBERT H. WHALEY, Senior District Judge.

Before the Court are a number of pretrial motions filed by Defendant: (1) Motion for Bill of Particulars, ECF No. 45; (2) Motion to Dismiss Wire Fraud Counts 1 to 25, ECF No. 46; (3) Motion in Limine Regarding Pre-Indictment Investments, ECF No. 47; (4) Motion to Dismiss or Merge Multiplicitous Counts, ECF No. 48; and (5) Motion to Continue Pretrial and Trial, ECF No. 51.

A pretrial conference was held on April 17, 2014, in Spokane, Washington. Defendant was present and represented by Robert M. Seines. Assistant United States Attorney K. Jill Bolton and Special Assistant United States Attorney Robert Kondrat represented the Government. The Court has reviewed the file, has heard from counsel, and is now fully informed. This order is also entered to memorialize and supplement the Court's oral rulings.

1. Defendant's Motion for Bill of Particulars

Defendant moves the Court for an order requiring the Government to issue a bill of particulars on all counts of the indictment. ECF No. 45. Specifically, Defendant suggests the Government should "state their theory of prosecution, as presented to the Grand Jury as to each count, and to provide us the facts supporting such theory." Id. Further, it is alleged that the counts and background information are devoid of facts that would satisfy "some" elements necessary to convict. Id. at 7.

The Government has responded, [1] and asks the Court to deny the motion, as Defendant impermissibly seeks a higher level of detail and specificity than contained in the indictment or required by statute or case law. ECF No. 50 at 3-6. The Government also points to the extensive discovery it has provided Defendant which includes: a detailed index to all of the documents provided and a spreadsheet with the dates and amounts of all investments. Furthermore, the Government responds to the assertion that the e-mails in the indictment are described generally by noting that they have provided the defendant with a detailed index to all of the e-mails that constitute the basis for the wire fraud and securities fraud counts. Finally, the Government conducted a reverse proffer whereby a PowerPoint presentation was utilized which outlined the evidence it intends to present at trial and theme of the case. See ECF Nos. 47 at 3 and 50 at 5.

A bill of particulars serves three functions:

(1) To inform the defendant of the nature of the charge against him with sufficient precision to enable him to prepare for trial;

(2) To avoid or minimize the danger of surprise at the time of trial, and;

(3) To enable him to plead his acquittal or conviction in bar of another prosecution for the same offense when the indictment itself is too vague, and indefinite for such purposes.

United States v. Giese, 597 F.2d 1170, 1180 (9th Cir. 1979) (citations omitted).

Ultimately, when a court is considering whether to order a bill of particulars, it "should consider whether the defendant has been advised adequately of the charges through the indictment and all other disclosures made by the government. United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1979) (citing Giese, 597 F.2d at 1180). When the Government provides full discovery there is no need for a bill of particulars. Id.

Here, the Government has adequately advised the Defendant of the charges against him through both the indictment and the discovery provided to him. See, e.g., Indictment, ECF No. 1 at ΒΆΒΆ 7-9, 20. Moreover, between the summaries, spreadsheets, the "reverse proffer" PowerPoint, and the indictment itself, Defendant cannot claim that he is unable to prepare for trial, nor can he claim that there is a danger of surprise at trial. Additionally, and after colloquy with the Government at the pretrial hearing, the Court is satisfied there are no false statements or material facts, outside of the indictment, upon which the Government intends to rely at trial as to both the wire fraud and securities fraud counts.

Consequently, Defendant's Motion for a Bill of ...

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