United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION FOR A BILL OF
LEVY CHIEF U.S. DISTRICT JUDGE.
Leo is charged in the Superseding Indictment (ECF No. 58)
with one count of conspiring to commit a hate crime, in
violation of 18 U.S.C.A. § 371 (West 2019) and 18
U.S.C.A. § 249(a)(1) (West 2019), as well as two counts
of committing a hate crime, in violation of 18 U.S.C.A.
§ 249(a)(1). Leo moves for a bill of particulars as to
the conspiracy count (ECF No. 93). For the reasons set forth
below, I deny the motion.
the conspiracy count, the Superseding Indictment alleges that
Leo and his co-defendant, Maurice Diggins, “knowingly
and willfully combined, conspired, and agreed with each other
to commit . . . violations of [18 U.S.C. § 249] . . .,
by willfully causing bodily injury to [two men] because of
their actual and perceived race and color” in the
District of Maine on or about April 15, 2018. ECF No. 58 at
1. The Superseding Indictment then details the overt acts
that Leo and Diggins allegedly undertook in furtherance of
the alleged conspiracy. Specifically, the Superseding
Indictment alleges that Leo and Diggins approached a Black
man on a sidewalk in Portland and struck him in the head,
breaking his jaw, while calling him a “nigger.”
Id. at 1-2. It further alleges that Leo and Diggins
approached a second Black man on the same night in a 7-Eleven
parking lot in Biddeford and similarly struck him in the
head, breaking his jaw, while calling him a
“nigger.” Id. at 2.
decision to grant or to deny a defendant's motion for a
bill of particulars is entrusted to the sound discretion of
the district court.” United States v. Paiva,
892 F.2d 148, 154 (1st Cir. 1989). “‘Motions for
bills of particulars are seldom employed in modern federal
practice,' and when they do arise ‘need be granted
only if the accused, in the absence of a more detailed
specification, will be disabled from preparing a defense,
caught by unfair surprise at trial, or hampered in seeking
the shelter of the Double Jeopardy Clause.'”
United States v. Roaf, No. 2:17-cr-00088-NT, 2018 WL
342008, at *1 (D. Me. Jan. 9, 2018) (quoting United
States v. Sepulveda, 15 F.3d 1161, 1192-93 (1st Cir.
First Circuit has repeatedly held that an indictment charging
a defendant with conspiracy is sufficiently specific and does
not warrant a bill of particulars where it alleges the nature
of the underlying criminal offense, the co-conspirators'
names, and the dates during which the conspiracy existed.
See, e.g., United States v.
Nelson-Rodriguez, 319 F.3d 12, 30-31 (1st Cir. 2003);
see also Sepulveda, 15 F.3d at 1192-93; United
States v. Gordon, No. 15-CR-10304-DPW, 2015 WL 7295459,
at *2 (D. Mass. Nov. 18, 2015) (citing United States v.
Hallock, 941 F.2d 36, 40 (1st Cir. 1991) and
Paiva, 892 F.2d at 155). The Superseding Indictment
satisfies these criteria: It specifies the underlying
criminal offense, committing hate crimes in violation of 18
U.S.C. § 249(a)(1); it names Leo's co-conspirator,
Diggins; and it alleges that the conspiracy existed on or
about April 15, 2018.
Superseding Indictment further alleges particular actions and
statements by Leo and Diggins in support of the conspiracy
charge and includes details such as the locations of the
alleged assaults, the initials of the alleged victims, and
the nature of the injuries allegedly inflicted. Thus, the
Superseding Indictment provides more than enough detail to
ensure that Leo is able to prepare a defense, avoid unfair
surprise at trial, and protect himself from double jeopardy
if he is prosecuted for the same offense in the future. As
such, a bill of particulars is not warranted. See United
States v. Gordon, No. 2:14-cr-69-JDL-5, 2015 WL 1292644,
at *3 (D. Me. Mar. 23, 2015) (denying a motion for a bill of
particulars where the indictment set forth the “the
locus of the crime” and “the manner and means by
which [the conspiracy] was allegedly carried out” as
well as the dates of the alleged conspiracy and the names of
the alleged co-conspirators).
nevertheless contends that he is disabled from preparing a
defense against the conspiracy charge because the Superseding
Indictment “leaves [him] guessing as to what exactly
the [alleged conspiratorial] agreement is, when did it occur,
how did it occur, and whether it occurred at all.” ECF
No. 93 at 2. This contention overlooks the fact that a
conspiratorial agreement “‘need not be express,
but may consist of no more than a tacit understanding,
'” and in any case “may be proven by
circumstantial evidence, including acts committed by a
defendant that furthered the conspiracy's
purposes.” United States v. Dimasi, Cr. No.
09-10166-MLW, 2011 WL 468213, at *4 (D. Mass. Feb. 4, 2011)
(quoting United States v.
Pérez-González, 445 F.3d 39, 49 (1st Cir.
2006)). Because the Government is not required to prove
details relating to the formation of the alleged agreement at
trial, an indictment need not include such details. See
Id. Therefore, Leo is not entitled to a bill of
particulars on this theory.
further asserts that a bill of particulars is warranted
because the Superseding Indictment provides “no
specificity as to . . . what evidence the Government believes
it has to support” the alleged agreement. ECF No. 93 at
3. But a defendant “is not entitled by way of a bill of
particulars to obtain details revealing the precise manner in
which the government alleges that he committed the crimes
charged or the manner in which it will attempt to prove the
charges.” United States v. Faucette, No.
2:13-CR-79-DBH, 2013 WL 3458182, at *1 (D. Me. July 9, 2013)
(citing Nelson-Rodriguez, 319 F.3d at 30-31). This
is especially so where the Government has provided
“ample discovery” to the defendant. United
States v. Hoffman, No. 2:15-cr-068-NT, 2015 WL 6436787,
at *2 (D. Me. Oct. 21, 2015).
the Government represents that it has provided Leo with (1)
local and federal law enforcement reports outlining relevant
portions of the investigation; (2) multiple video recordings
of the Biddeford assault, captured on nearby security
cameras; (3) search warrant applications and the related
returns; (4) photographs of Diggins' tattoos that reflect
racial animus; and (5) all of the witness statements obtained
in the case (redacted only to remove names and personal
identifiers). See ECF No. 108 at 2. Because Leo does
not challenge the sufficiency of the Government's
disclosures, I conclude that these discovery materials inform
Leo of the evidence against him and enable him to prepare a
defense. See Nelson-Rodriguez, 319 F.3d at 30-31
(citing Sepulveda, 15 F.3d at 1192-93). Thus, a bill
of particulars is not warranted.
foregoing reasons, Leo's motion for a bill of particulars
(ECF No. 93) is DENIED.