Zeek Rewards: Burks’ Loses Another Motion for “Bill of Particulars”

This is the second time that Paul Burks has asked to see what the government has on him, I guess so he can see how bad things are. The last time, the motion was denied, and it is ‘deja vu all over again’. (Yogi Berra)

THIS MATTER is before the Court on “Paul Burks’ Motion for a Bill of Particulars,” Doc. 39, “Paul Burks’ Motion for Order Directing the Prosecution to Identify and Produce Rule 16 and Brady Material from Receivership and SEC Files,” Doc. 41, filed March 15, 2016 and the “Government’s Consolidated Response in Opposition to Defense Motions (Doc. 39 and Doc. 41),” Doc. 44, filed March 25, 2016, and the parties’ briefs and exhibits. Docs. 40, 48-49.
Having fully considered the arguments, the record, and the applicable authority, the Court finds that the “Paul Burks’ Motion for a Bill of Particulars,” Doc. 39, and “Paul Burks’ Motion for Order Directing the Prosecution to Identify and Produce Rule 16 and Brady Material from Receivership and SEC Files,” Doc. 41, should be DENIED as discussed below.

Judge Cayer goes on to say in the Order:

A bill of particulars is provided “to enable a defendant to obtain sufficient information on the nature of the charge against him so that he may prepare for trial, minimize the danger of surprise at trial, and enable him to plead his acquittal or conviction in bar of another prosecution for the same offenses.

But…

“A bill of particulars is not to be used to provide detailed disclosure of the government’s evidence in advance of trial.”

And he ends the document with this:

Based upon the foregoing, the Court finds that Defendant has sufficient information regarding the nature of the charges against him. Consequently, Defendant’s Motion for Bill of Particulars is DENIED.

And, after this revelation, Burks filed an Appeal, trying to get the Order vacated. It also did not do well for Burks.  Here is the essence of his argument (mostly):

The Magistrate’s Order is clearly erroneous, contrary to law, and must be reversed. The
Magistrate’s Order fails to engage with the plain language—and deficits—in the Indictment and the arguments raised in Mr. Burks’ pleadings with Rule 7(f) of Federal Rules of Criminal Procedure.

Apparently, Burks thought that filing 2 separate Appeals would fare better that just one (Docs 61 and 62); once again, he was exceedingly incorrect.

Burks decided to request an appendix document to be filed under seal in support of his opposition motions:

Appendix A contains references to matters that are presently non-public and documents
that are controlled by a discovery agreement with the government that directs “no further
disclosure shall be made of these items.” Thus, out of an abundance of caution, undersigned counsel are proceeding in this manner. An earlier version of this Appendix was previously sealed by the Magistrate. [Doc. 50]

The government filed their Opposition to the Appeal, and said:

As stated in Judge Cayer’s order, a bill of particulars is not to be used to provide detailed disclosure of the government’s evidence in advance of trial and the purpose of the bill of particulars is fully satisfied when the United States turns over its entire file to the defendant. As further stated in Judge Cayer’s order, the United States is in compliance with Rule 16 of the Federal Rules of Criminal Procedure and its obligations under Brady with regard to materials held by third parties, specifically, the Securities and Exchange Commission (SEC) and the court-appointed Receiver. Indeed, as reported by the Defendant, the United States has disclosed voluminous materials the United States received from the SEC and the Receiver, including correspondence reflecting the submission of numerous requests made by the United States for information relevant to its investigation. Although such disclosure clearly evidences the United States’ compliance with its discovery obligations, a review of the record simply fails to support the proposition that United States conducted a “joint investigation” with the SEC and the Receiver requiring the relief sought by the Defendant.

The Appellate Court was not impressed with Burks’ argument and said:

The district court has authority to assign non-dispositive pretrial matters pending before the court to a magistrate judge to “hear and determine.”

The court has carefully reviewed the Order as well as the objection, and has determined that the Order of the magistrate judge is fully consistent with and supported by current law, which he cited in his Order. Based on such determination, the court will overrule the Objections and fully affirm the Order.

 

ORDER
IT IS, THEREFORE, ORDERED that the defendants Appeals (#61 & #62) are DEEMED to be Rule 59(a) Objections, they are OVERRULED, and the Order (#60) is AFFIRMED.