BRADLEY DAVID THOMAS, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-722

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fourth Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinion below
   Jurisdiction
   Statement
   Argument
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1-45) is reported at
877 F.2d 281.

                             JURISDICTION

   The judgment of the court of appeals was entered on June 8, 1989.
A petition for rehearing was denied on September 1, 1989 (Pet. App.
46-47).  The petition for a writ of certiorari was filed on October
31, 1989.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether the district court abused its discretion by denying a
motion for a bill of particulars seeking the names of 15 "known
individuals" mentioned in the indictment.

                               STATEMENT

   A 108-count indictment returned in the United States District Court
for the Northern District of West Virginia charged petitioner and
three other men with various drug-related offenses.  Following a
three-week jury trial, petitioner was convicted of conducting, and
conspiring to conduct, an enterprise through a pattern of racketeering
activity, in violation of 18 U.S.C. 1962(c) and (d);  conspiring to
distribute and possess with intent to distribute cocaine, in violation
of 21 U.S.C. 846;  engaging in a continuing criminal enterprise, in
violation of 21 U.S.C. 848;  eight counts of distribution of cocaine,
in violation of 21 U.S.C. 841(a)(1);  17 counts of interstate travel
in aid of a racketeering enterprise, in violation of 18 U.S.C.
1952(a)(3);  and two counts of evading taxes, in violation of 26
U.S.C. 7201.  Petitioner was sentenced to a total of 30 years'
imprisonment and to a special parole term of ten years.  He was fined
$500,000.  The court also entered a judgment of forfeiture with
respect to certain vehicles and property that petitioner and his
co-defendants had used to distribute drugs, pursuant to 18 U.S.C.
1962.  The court of appeals affirmed the convictions on all counts
except for the conspiracy conviction, which it set aside on the ground
that Congress did not intend that an individual be punished both for
conspiracy and for the operation of a continuing criminal enterprise.

   The evidence, the sufficiency of which is not disputed, showed that
petitioner was the "ringleader" of an organization engaged in the
large-scale importation and distribution of marijuana and cocaine.
Pet. App. 2-3.  Petitioner arranged to have the drugs smuggled into
Florida, primarily from the Bahamas and Jamaica.  The drugs were then
distributed in the Ohio valley and in Wheeling, West Virginia.  The
three co-defendants named in the indictment included a major
distributor, an overseer of petitioner's "safehouses," and the courier
who transported money and drugs between Florida and the Ohio valley.
Id. at 3.

   The indictment also referred to 15 "known individuals." The grand
jury drafted the indictment in that manner to protect persons who had
provided information because of the history of violence and threats
associated with the organization.  See Gov't C.A. Br. 5.  The
defendants filed a motion for a bill of particulars seeking the names
of the "known individuals," but the district court denied the motion.
Each of the "known individuals" testified at trial.  The court of
appeals found no error in the denial of the motion for a bill of
particulars, noting "the absence of any showing of unfair surprise."
Pet. App. 42.

                               ARGUMENT

   The decision to grant or deny a bill of particulars rests in the
discretion of the district court.  Wong Tai v. United States, 273 U.S.
77,82 (1927).  The functions of the bill of particulars are to allow
the defendant to understand the charges in order to prepare a defense,
to minimize surprise at trial, and to protect against double jeopardy.
 United States v. Paiva, No. 88-2041 (1st Cir. Dec. 21, 1989), slip
op. 12.  But the government is not required to divulge the identity of
its witnesses in a noncapital case, see United States v. DiPasquale,
740 F.2d 1282, 1294 (3d Cir.), cert. denied, 469 U.S. 1228 (1984), and
a defendant does not obtain a right to a list of witnesses by making
his request in a motion for a bill of particulars, United States v.
Anderson, 799 F.2d 1438, 1442 (11th Cir. 1986), cert. denied, 480 U.S.
931 (1987).  In cases where a motion for a bill of particulars is
denied, reversal is mandated only where the defendant shows that he
was actually surprised at trial and prejudiced in his substantial
rights.  United States v. Hughes, 817 F.2d 268, 272 (5th Cir.), cert.
denied, 484 U.S. 858 (1987).

   The court of appeals correctly concluded that the district court
did not abuse its discretion in this case.  In his petition for a writ
of certiorari, petitioner claims prejudice primarily because 21 U.S.C.
848(d)(2)(A) (Supp. V 1987) requires proof that the operator of a
continuing criminal enterprise acted in concert with five or more
persons.  Pet. 9-10.  However, there is no special requirement that
the government identify the participants in a continuing criminal
enterprise;  an indictment charging the operation of a continuing
criminal enterprise is sufficient if it tracks the language of the
statute.  United States v. Burt, 765 F.2d 1364, 1367 (9th Cir. 1985);
United States v. Amend, 791 F.2d 1120, 1125 (4th Cir.), cert. denied,
479 U.S. 930 (1986).  Moreover, there is no basis for the contention
that petitioner was surprised at trial by the identities of the
persons who were alleged to have participated in his drug distribution
enterprise.  Three persons were indicted with petitioner, and during
voir dire the trial court read a list of all of the witnesses the
government intended to call, which included 13 of the 15 "known
individuals."

   Contrary to petitioner's contention (Pet. 14), there is no conflict
among the circuits on the question presented.  In fact, the government
prevailed in each of the four appellate cases petitioner cites --
United States v. Cole, 755 F.2d 748, 760 (11th Cir. 1985);  United
States v. Anderson, supra;  United States v. Barbieri, 614 F.2d 715,
719-720 (10th Cir. 1980);  and United States v. Barrentine, 591 F.2d
1069, 1075-1081 (5th Cir.), cert. denied, 444 U.S. 990 (1979).  Nor is
the decision below inconsistent with the statement in Will v. United
States, 389 U.S. 90, 99 (1967), that it is not uncommon for trial
courts to require the government to disclose the names of its
witnesses prior to trial.  The names of the witnesses were not
disclosed here until voir dire because of unusual circumstances -- the
need to protect them, which constituted a valid ground for the
prosecutor to refuse to reveal the identity of the government's
witnesses in advance of trial.  See Government of the Virgin Islands
v. Martinez, 847 F.2d 125, 128 (3d Cir. 1988).

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S. G. DENNIS, JR.

      Assistant Attorney General

   SIDNEY M. GLAZER

      Attorney

   JANUARY 1990