Opinion
4:21-cr-00793-SHR-BGM-1
05-31-2023
United States of America, Plaintiff, v. Frederick John Stahmer, Defendant.
REPORT AND RECOMMENDATION RE: DEFENDANT'S MOTION FOR BILL OF PARTICULARS (DOC. 65)
Bruce G. Macdonald, United States Magistrate Judge
Currently pending before the Court is Defendant Frederick John Stahmer's Motion for Bill of Particulars (“Motion”) (Doc. 65). The Government has filed its response and Defendant replied. See Govt.'s Response to Def.'s Motion (“Response”) (Doc. 87), see also Def.'s Reply to Govt.'s Response to Def.'s Motion (Doc. 97). Pursuant to LRCrim 5.1, this matter came before Magistrate Judge Macdonald for report and recommendation. On May 11, 2023, and May 12, 2023, an evidentiary hearing was held by Magistrate Judge Macdonald and the matter taken under advisement. See ME 05/11/23; 05/12/23 (Docs. 102, 109.)
Also pending before the Court are Defendant's Motion to Suppress Statements (Miranda and Voluntariness) (Doc. 64) and Defendant's Motion to Dismiss for PreIndictment Delay (Doc. 69) addressed under separate cover.
The Magistrate Judge recommends that the District Court, after its independent review, deny Defendant's Motion.
Defendant submits that an order from the Court for the Government to provide a bill of particulars, i.e., a listing of all alleged victims it intends to call to support the alleged scheme to defraud, and the alleged manner and means of the scheme, is necessary to properly prepare for trial. Defendant further submits failure to do so, in a reasonable time before trial, violates Defendant's right “to be informed of the nature and cause of the accusation” under the Sixth Amendment to the United States Constitution. Defendant notes trial is currently set for July 25, 2023.
The Government contends that the Indictment sets forth the theory of the government's case-that defendant devised and implemented a scheme to defraud in which he misrepresented the business model for his rock concert promotion company and misrepresented and concealed the results of his operations to induce his victims to participate. The Government cites to the Ninth Circuit case of United States v. Ryland, for the proposition that “[a] defendant is not entitled to know all the evidence the government intends to produce but only the theory of the government's case.” 806 F.2d 941, 942 (9th Cir. 1986).
“In determining if a bill of particulars should be ordered in a specific case, a court 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. 1983) citing United States v. Giese, 597 F.2d 1170, 1180 (9th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979).
Pursuant to Federal Rules of Criminal Procedure (“Fed.R.Crim.P.”), Rule 7(f):
The court may direct the government to file a bill of particulars. The defendant may move for a bill of particulars before or within 14 days after arraignment or at a later time if the court permits. The government may amend a bill of particulars subject to such conditions as justice requires.Fed. R. Crim. P., Rule 7 (emphasis added).
Defendant was charged by Indictment on April 21, 2021 (Doc. 1), and-as the Government points out, “almost two years after this case was charged” (Doc. 87 at 1)-on March 17, 2023, Defendant filed his Motion for Bill of Particulars (Doc. 65). Defendant did not seek leave from the Court prior to filing Defendant's Motion.
Defendant concedes, “[b]ased on government disclosure, the defense has discerned the names of alleged victims for counts one to four. Counts one to four involve three named persons.” (Doc. 65 at 1.) Defendant further concedes, “[t]he government has provided ‘full discovery,' or is working towards providing ‘full discovery'”; however further contends “the need for specificity in the indictment is not obviated.” (Doc. 65 at 5.)
Defendant argues that a bill of particulars is appropriate because “[t]here are approximately 40 alleged victims not named in the indictment.” (Doc. 65 at 2.) Defendant submits “information to identify only four out of forty alleged victims” is “insufficient specificity based on case complexity, Ninth Circuit precedent, and the Sixth Amendment.” (Doc. 65 at 5.) In close discretionary circumstances, Defendant submits, the Court should resolve for additional disclosure, and cites to a District of Delaware case, U.S. v. Manetti, in support thereof. 323 F.Supp. 683, 696 (D. Del. 1971). The issue raised in the
Government's Response regarding Defendant's omission from this citation to Manetti, supra, is well received, and is set forth below:
On the other hand, it must be something less than all of the facts conscientious counsel would wish to have in preparing his case since this would call for disclosure comparable to civil discovery in disregard of the concerns underlying the authorities cited above.
[A] a defendant is entitled to have the government inform him, either by way of indictment or bill, only of those central facts which will enable him to conduct his own investigation of the transactions giving rise to the charge. Thus, for example, a defendant is ordinarily entitled to the name of the participants in a conversation or transaction central to the charge, but not to the names of all witnesses the government intends to call.Likewise, he is entitled to be told the time and place of transactions giving rise to the charge, but is not entitled to compel the government to describe in detail the manner in which the crime was committed, thereby forcing the prosecution to fix irrevocably the perimeters of its case in advance of trial.323 F.Supp. at 696 (emphasis added).
United States v. Lubomski, 277 F.Supp. 713 (N.D.Ill. 1967) cited by U.S. v. Manetti, 323 F.Supp. 683, 696 n. 34 (D.Del. 1971).
Although the case to which Defendant cites, Manetti, i.e., is in the District of Delaware, a Third Circuit case, and is not precedent for the Ninth Circuit, the scope of the applicable disclosure provides guidance, here, despite the omission from Defendant's Motion (Doc. 65). Specifically, regarding disclosure of witnesses the Government intends to call, in the case of United States v. Lubomski, see footnote 2, infra, the Northern District of Illinois Court found it appropriate to furnish the name and address of the supervisor of [P.J.H.], an employee of the Internal Revenue Service, and state the approximate time and place where the alleged crime occurred; however, the court found “[d]efendant is not entitled to a list of witnesses, or to the name and address of the person who received the money or his capacity, this being a non-capital case. 18 U.S.C. Sec. 3432.” Lubomski, 277 F.Supp. 713, 719 (N.D.Ill. 1967) (emphasis added).
Defendant also cites to United States v. Trumpower, 546 F.Supp.2d 849, 852 (E.D. Cal. 2008), in support of his position, specific to wire fraud cases in the Ninth Circuit. (Doc. 65 at 4-5.) In pertinent part, regarding the sufficiency of the Indictment, Trumpower provides:
An indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal of conviction in bar of future prosecutions for the same offense.United States v. Trumpower, 546 F.Supp.2d 849, 851 (E.D. Cal. 2008) citing Hamling v. United States, 418 U.S. 87, 118, 94 S.Ct. 2887 (1974). “Before trial, the corollary purposes are generally met if the indictment passes muster under Hamling. ” United States v. Trumpower, 546 F.Supp.2d 849, 851 (E.D. Cal. 2008) citing United States v. Buckley, 689 F.2d 893, 896 n. 3 (9th Cir. 1982). “Before trial, these corollary purposes of an indictment are generally met if the indictment adequately informs the defendant of the charge to enable him to defend himself and plead double jeopardy.” United States v. Buckley, 689 F.2d 893, 896 n. 3 (9th Cir. 1982) citing, e.g., Hamling v. United States, 418 U.S. at 117, 94 S.Ct. at 2907; United States v. Chenaur, 552 F.2d 294, 301 (9th Cir. 1977). “It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.'” Hamling, 418 U.S. at 117 citing United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882).
Here, the six-page Indictment (Doc. 1) states, in pertinent part, “On or about each of the dates set forth below, in the District of Arizona and elsewhere, for the purpose of executing the scheme described above, defendant Frederick J. Stahmer caused to be transmitted by means of wire communication in interstate commerce the signals and sounds describe below for each count, each transmission constituting a separate count:
Count
Date
Type of Transmission
1
May 4, 2016
$25,000 wire transfer from Old Union Bank to the Chase Bank account of Frederick Entertainment, Inc. on behalf of Victim 1.
2
June 2, 2016
$50,000 wire transfer from Old Union Bank to the Chase Bank account of Frederick Entertainment, Inc. on behalf of Victim 1.
3
August 24, 2016
$80,000 wire transfer from Old Hickory Credit Union to the Well Fargo bank account of Frederick Entertainment, Inc. on behalf of Victim 2.
4
September 9, 2016
$35,000 wire transfer from Old Hickory Credit Union to the Wells Fargo bank account of Frederick Entertainment, Inc. on behalf of Victim 2.
All in violation of Title 18, United States Code, Sections 1343.”(Doc. 1 at 5.)
The Indictment sets forth a description of the “The Scheme” and the “Manner and Means” with time frames, specifically, noting at paragraph seven, “In the three years from 2013 to 2016 after Stahmer's rock concert promotion business expanded, it did not have a net profit, and the business during that time period was more losing money rather than making money.” (Doc. 1 at 2, ¶ 7.) Also, in the Indictment at paragraph ten,
Even though Stahmer's business was not making money in the period from 2013 to 2016, Stahmer claimed to existing and potential investors that both his business and his concerts were profitable. To this end, he generated multiple profit and loss statements that either overstated profits or understated losses to induce new investors to participate or to conceal from existing investors the true state of their investments. By doing so, Stahmer was able to obtain monies that he would not have otherwise received, and to avoid making disbursements of profits that he [ sic ] not actually made [. . . .](Doc. 1 at 3, ¶ 10.)
The Court finds the Indictment sufficient under Hamling, supra, as it sets forth all the elements necessary to constitute the offence intended to be punished, including the language of the statute itself.
Defendant did not seek leave before filing his Motion, he delayed filing for approximately two years, and the Indictment is sufficient under Hamling, supra. Accordingly, Defendant's Motion for Bill of Particulars (Doc. 65) should be denied.
RECOMMENDATION
For the reasons stated above, the Court recommends that the District Court deny Defendant's Motion for Bill of Particulars (Doc. 65).
Pursuant to 28 U.S.C. §636(b) and Federal Rules of Criminal Procedure, Rule 59(b)(2), any party may serve and file written objections within fourteen (14) days of being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within fourteen days. If any objections are filed, the parties should use the following case number: CR-21-00793-SHR.
Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See Fed. R. Crim. P., Rule 59.