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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

 : No. 4:CR-04-235

 : (Judge McClure)

v. :

 :

JESSE BROWN, :

Defendant :

O R D E R

May 5, 2005

BACKGROUND:

On March 10, 2005, a grand jury sitting in the Middle District of

Pennsylvania returned a six-count second superseding indictment charging

defendant Jesse Brown with various drug-related charges.

The first count of the second superseding indictment charges Brown with

conspiracy to possess with intent to distribute and distribute more than fifty (50)

grams of cocaine base known as crack, a schedule II controlled substance in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii) and to possess with intent

to distribute and distribute cocaine, a schedule II substance, in violation of 21

U.S.C. § 841. (Count One.)

Counts two through four of the indictment charge Brown with possessing

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with intent to distribute and distributing cocaine base, known as crack, a Schedule

II controlled substance and aiding and abetting the same, in violation of 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2 on or about June 17, 2004 (Count Two), on or about

June 23, 2004 (Count Three), and on or about June 29, 2004 (Count Four). The

indictment further charged Brown with possessing with intent to distribute and

distributing cocaine base, known as crack, a Schedule II controlled substance on

or about June 30, 2004 (Count Five). Brown is also charged with possessing with

intent to distribute more than five (5) grams of cocaine base, known as crack, a

Schedule II controlled substance, on June 30, 2004, in violation of 21 U.S.C. §§

841(a)(1) and 841(b)(1)(iii) (Count Six).

On March 28, 2005, Brown pled not guilty to all charges. Jury selection is

now set for June 21, 2005.

Now before the court is Brown’s motion for a bill of particulars on his

second superseding indictment. (Rec. Doc. No. 68.) The government did not file

a brief in objection to the bill of particulars. For the following reasons, the court

will deny Brown’s motion.

DISCUSSION:

I. Standard of Review

Federal Rule of Criminal Procedure 7(f) provides:

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Bill of Particulars. The court may direct the government to file a bill

of particulars. The defendant may move for a bill of particulars before

or within 10 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 justices requires.

“‘The purpose of the bill of particulars is to inform the defendant of the nature of

the charges brought against him [so that he may] adequately prepare his defense, to

avoid surprise during the trial and to protect him against a second prosecution for

an inadequately described offense.’” United States v. Addonizio, 451 F.2d 49,

63-64 (3d Cir. 1971) (quoting United States v. Tucker, 262 F. Supp. 305, 308

(S.D.N.Y. 1966)). A defendant has no right to a bill of particulars. See United

States v. O’Driscoll, 203 F. Supp. 2d 334, 348 (M.D. Pa. 2002). Granting a

motion for a bill of particulars lies within the court’s discretion. See, e.g., United

States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990); United States v. Armocida, 515

F.2d 49, 54 (3d Cir. 1975). 

A motion for a bill of particulars should be granted if the government’s

failure to allege factual or legal information in the indictment “significantly impairs

the defendant’s ability to prepare his defense or is likely to lead to prejudicial

surprise at trial.” United States v. Rosa, 891 F.2d 1063, 1066 (3d Cir. 1989). 

Because a bill of particulars defines and limits the government’s case, the court

must weigh the “defendant’s interest in securing information” against the

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“government’s interest in not committing itself to facts before it is in a position to

do so.” United States v. Serafini, 7 F. Supp. 2d 529, 547 & n.13 (M.D. Pa. 1998).

II. Brown’s Motion

In his motion for a bill of particulars, Brown sets forth numerous requests

for information regarding the crimes charged in the indictment. His requests are as

follows:

1. State exactly whether the Government intends to 

prove that Defendant acted as a principal, 

accomplice or both.

2. Set forth the exact time and place of the alleged 

crimes.

3. Set forth the precise facts which form the basis for 

Defendant’s culpability for all offenses charged in 

the Indictment including:

a. set forth in detail, the precise act(s) allegedly

committed by Defendant, including the time

and place of the act(s);

b. describe all physical evidence which was 

recovered from Defendant at or about the 

time of the arrest. If Defendant was not in 

possession of such evidence, state the 

name(s), address(es), and birth date(s)

of the person(s) to whom such possession is

 attributed; and,

c. if the Defendant is alleged to be an 

accomplice, state in what way he allegedly 

solicited, requested, aided and abetted, 

commanded, induced, caused or procured 

another person in the commission of the 

alleged act(s).

4. For the crack cocaine allegedly possessed by 

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Defendant with the intent to distribute or 

distributed:

a. state specifically the basis for which 

Defendant is charged with possession of the 

crack or with distributing the crack;

b. state specifically how Defendant is alleged 

to have exercised dominion and/or control 

over the crack or what he did to distribute it;

and,

c. state from where the crack was recovered.

5. For all of the physical evidence seized, including, 

but not limited to, narcotics, firearm(s), 

ammunition and currency, state whether any search

warrant or arrest warrant was utilized, and if so, 

attach a copy of said warrant(s). If no warrant was

used, state pursuant to what legal authority

such seizure and arrest was made.

6. State precisely what information constituted the 

basis for Defendant’s arrest, including the name of 

any informant who provided such information.

7. State whether the Government intends to offer at 

trial any testimony regarding an observation of 

Defendant, either at the time or place of the alleged

commission of the offenses charged, or upon

some other occasion relevant to the case, to be

given by a witness who has previously identified

Defendant as such. If so, specify the times,

locations, and circumstances of such observations

and/or identifications and enumerate the

Governmental and civilian persons present.

8. The name(s) and address(es) of every informer and

person relied upon by the Government as the

offenses charged in each count of the

indictment.

9. The name(s) and address(es) of every person 

whom the Government expects to call as a witness 

to prove the offenses charged in the Indictment.

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10. Identify the nature of any and all statements and/or 

events, other than those already contained in the 

Indictment, upon which the Government intends to

rely to prove that a conspiracy existed wherein the 

Defendant was involved in distributing any form 

of cocaine.

11. Identify the date and nature of the earliest 

statement and/or event upon which the 

Government will rely to establish when and where 

Defendant joined a conspiracy to distribute any 

form of cocaine or actually distributed cocaine.

12. Identify the approximate dates on which it is 

alleged that Defendant engaged in drug trafficking 

crimes, the approximate times of these acts, and 

the names of any other persons present known to 

the Government.

13. Identify the names and addresses of every 

person(s) present at any material conversation 

between the Defendant and any other individuals 

in furtherance of any conspiracy to distribute crack

cocaine.

14. Identify any and all evidence of the Defendant’s

involvement in a criminal conspiracy to deliver

drugs from the 1st day of January, 2003, to his

arrest on the 30th day of June, 2004.

15. Identify any and all dates, times and locations of

Defendant’s involvement in a criminal conspiracy

from the 1st day of January, 2003, up to and

including the 30th day of June, 2004.

16. Identify the name of co-conspirator with whom the

Defendant went to 807 Wilson Street,

Williamsport, Pennsylvania on the 14th day of

March, 2003.

17. Identify why and how the Defendant produced,

brandished and discharged a Tarus [sic] Millenium

[sic] .40 caliber pistol bearing serial number SVA

39400.

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(Mot. Bill Particulars, Rec. Doc. No. 68.) 

The first thirteen questions in defendant’s current motion appeared in an

earlier motion for a bill of particulars in this case that related to the July 22, 2004

indictment. (Compare Rec. Doc. No. 68, ¶¶ 1-13 with Mot. Bill Particulars, Rec.

Doc. No. 25.) In our November 12, 2004 order we denied defendant’s motion and

elaborated the grounds for denial as to each of those questions. (See Rec. Doc.

No. 34.) In support of defendant’s current motion, defense counsel has filed the

same supporting brief that was filed in support of his earlier motion. (Compare

Rec. Doc. No. 26 with Rec. Doc. No. 71.)

The second superseding indictment contains a new count, which alleges that

from January 1, 2003, up to and including the date of the superseding indictment,

defendant intentionally, knowingly and unlawfully conspired and agreed with

persons known and unknown to the grand jury to possess with intent to distribute

more than fifty grams of cocaine base known as crack, and to possess with intent

to distribute cocaine. (Rec. Doc. No. 54, at 1.) The second superseding

indictment also asserts the manner and means by which defendant allegedly

participated in the conspiracy in the form of ten paragraphs. (Rec. Doc. No. 51, at

2-3.)

The inclusion of a conspiracy count against Brown in the latest indictment

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necessitates that we readdress defendant’s previous requests for information in

paragraphs 10, 11, and 13 of the motion, in addition to addressing defendant’s four

new requests in paragraphs 14, 15, 16, and 17.

In defendant’s supporting brief he asserts that he is “without sufficient

knowledge of the facts of the alleged criminal acts as set forth in the Indictment to

enable him to prepare his defense.” (Rec. Doc. No. 71, at 3.) In particular,

defendant believes that from the indictment he is unable to understand the “specific

details of the charges against him, particularly the extent of his alleged involvement

vis-a-vis the unindicted [co-conspirator].” (Rec. Doc. No. 71, at 3.)

As we stated in our previous denial of his request for a bill of particulars, the

charges against defendant are not particularly complex. As to the new information,

the second superseding indictment states the time period during which Brown is

alleged to be involved in a conspiracy to distribute cocaine and cocaine base,

known as crack, in Williamsport, Pennsylvania. The second superseding

indictment also states that Brown, and other co-conspirators, collected monies

owed from drug sales by use of force, threats, intimidation and violence. 

Furthermore, the indictment indicates a specific instance on March 14, 2003, when

the defendant is alleged to have used force to collect a drug debt at 807 Wilson

Street, Williamsport, Pennsylvania. The indictment goes on to explicitly allege that

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Brown brandished a weapon, identified by make and serial number, and shot a

person on that occasion.

Defendant’s brief concedes that a “bill of particulars is not intended to act as

a preview of the Government’s evidence.” (Rec. Doc. No. 71, at 2.) However,

that is exactly what the defendant seeks in his motion. Paragraph ten requests that

the prosecution provide any and all statements or events that the government

intends to rely on to prove that a conspiracy existed; paragraph eleven seeks to

determine the date of the earliest event or statement that the government will rely on

to prove the conspiracy; paragraph thirteen seeks the names and addresses of every

person present at any material conversation between Brown and any other

individual in furtherance of the conspiracy to distribute any form of cocaine;

paragraph fourteen requests “any and all evidence” of Brown’s involvement in a

conspiracy; and paragraph fifteen requests “any and all dates, times and locations

of Brown’s involvement in a criminal conspiracy.” (Rec. Doc. No. 68, at 3-4.)

In a motion for a bill of particulars, “a defendant is entitled neither to a

wholesale discovery of the Government’s evidence . . . nor to a list of the

Government’s prospective witnesses . . . .” Addonizio, 451 F.2d at 64 (citations

omitted). We find that the manner and means alleged in the second superseding

indictment sufficiently apprises Brown of the conspiracy charge against him.

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According to the second superseding indictment the conspiracy began on or about

January 1, 2003. The second superseding indictment includes five specific dates

where Brown allegedly acted in furtherance of the conspiracy to distribute cocaine

and cocaine base.

In paragraph sixteen of his motion, Brown requests the name of the coconspirator with whom Brown went to 807 Wilson Street on March 14, 2003. 

(Rec. Doc. No. 68, at 4.) Whether we require the prosecution to disclose the

identity of a known unidentified co-conspirator depends on our evaluation of the

substantive consideration of whether not granting defendant’s request would result

in unfair surprise or significantly impair defendant’s ability to prepare for trial. See

Rosa, 891 F.2d at 1066; United States v. McFarlane, 759 F.Supp. 1163, 1170

(W.D. Pa. 1991) (denying request for identity of unindicted coconspirator); see

also United States v. Nachamie, 91 F. Supp. 2d 565, 572 (S.D.N.Y. 2000) (listing

factors courts may consider in determining whether to grant a request to reveal

identities of known unindicted coconspirators). The Nachamie court noted that a

court should consider the potential danger to coconspirators as well as the nature

of the alleged criminal conduct, when determining whether to require the

prosecution to identify an unindicted coconspirator. 591 F. Supp. 2d at 572. The

government alleges that Brown committed serious violent acts in furtherance of a

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drug conspiracy. In our November 2004 denial of defendant’s request for a bill of

particulars we noted that the government had demonstrated that the safety of

informants could be compromised if their identities were revealed to the defense. 

(Rec. Doc. No. 34, at 9-10.) In balancing these considerations we will deny

defendant’s request that the prosecution reveal the identity of the unindicted

coconspirator with whom Brown went to 807 Wilson Street on March 14, 2003. 

Defendant has not convinced us that his identity is necessary to his preparation for

trial.

Finally, in paragraph seventeen, defendant requests specificity as to “why

and how the Defendant produced, brandished and discharged a Tarus [sic]

Millenium [sic] .40 caliber pistol bearing serial number SVA 39400.” (Rec. Doc.

No. 68, at 4.) This request lacks merit. The second superseding indictment states

that Brown collected monies owed from drug sales by using force. (Rec. Doc. No.

54, at 2, ¶ 2.) Specifically, the second superseding indictment alleges that on

March 14, 2003, Brown went to 807 Wilson Street, Williamsport, Pennsylvania to

collect a drug debt. (Rec. Doc. No. 54, at 2, ¶ 3.) The second superseding

indictment then states that Brown produced and brandished the aforementioned

firearm during the collection of this drug debt and shot an individual. (Rec. Doc.

No. 54, at 2, ¶¶4-5.) Defendant’s request in paragraph seventeen is denied because

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the indictment provides more than adequate specificity as to why and how Brown

allegedly used the firearm.

NOW, THEREFORE, IT IS ORDERED THAT:

Defendant’s motion for a bill of particulars as to the March 10, 2005 second

superseding indictment (Rec. Doc. No. 68), is denied.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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