United States District Court, D. South Dakota, Western Division
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR BILL OF PARTICULARS AND REQUEST FOR GRAND JURY TRANSCRIPT (DOCS. 19 AND 29)
DANETA WOLLMANN United States Magistrate Judge
On November 19, 2014, Mr. Glenn was charged in an indictment with Felony Child Abuse and Neglect. On April 3, 2015, Mr. Glenn filed a motion for a bill of particulars and request for grand jury transcripts. (Doc. 19). On April 23, 2015, Mr. Glenn filed a motion for release of grand jury transcripts and request for hearing. (Doc. 29). On July 1, 2015, the District Court referred this matter to the magistrate judge for resolution. (Doc. 41). A hearing on the motion was held on Monday, August 24, 2015.
At this time, the only available description of the case comes from the defendant’s motion. Mr. Glenn states that, on November 5, 2013, he was cleaning a hunting rifle and accidentally shot and killed his child. (Doc. 19 at p. 2). Law enforcement interviewed witnesses and all witnesses state that the shooting was an accident. (Doc. 19 at p. 2). On the day of the shooting, Mr. Glenn produced a blood sample that registered some amount of THC. (Doc. 19 at p. 2, FN 3).
Mr. Glenn was indicted for Felony Child Abuse and Neglect which is a violation of 18 U.S.C. § 1153 and SDCL § 26-10-1. There is no federal offense for child abuse, so Mr. Glenn was charged under South Dakota Law which states that “[a]ny person who abuses, exposes, tortures, torments, or cruelly punishes a minor in a manner which does not constitute aggravated assault, is guilty of a Class 4 felony. If the victim is less than seven years of age, the person is guilty of a Class 3 felony.” SDCL § 26-10-1.
Mr. Glenn seeks an order from this Court directing the government to provide him with a bill of particulars and grand jury transcripts. He argues that the indictment is legally sufficient, but does not provide him with sufficient notice of the government’s allegations to allow him to prepare an adequate defense to the indictment. The defendant seeks “the government’s designation of the precise act or actions which the government alleges [Mr. Glenn] committed so as to violate SDCL 26-10-1 and, particularly the portion of that broad statute it is alleged he violated.” (Doc. 26 at p. 2-3).
The defense argues that it is unclear whether the prosecution will allege that Mr. Glenn abused, exposed, tortured, tormented or cruelly punished his child. Even assuming that the government will allege he “exposed” his child to some action, the defendant does not know whether the government plans to present a theory that he “exposed” his child to the way he cleaned his gun, the fact that he had marijuana in his system, or cleaning his gun in the presence of a child. (Doc. 26 at p. 2). “Without such clarification the defense is faced with the proposition of retaining multiple experts-a doctor, gun safety expert, a toxicologist, and/or a statistician-in order to prepare to refute the” many theories of prosecution the government has available. (Doc. 26 at p. 3).
With regard to the grand jury transcripts, the defendant claims the transcripts are necessary to a forthcoming motion to dismiss the indictment. The defendant alleges that he is entitled to receive the transcripts because the statute is expansive and “it is of paramount importance to know the theory that was presented to the Grand Jury in securing an indictment.” (Doc. 26 at p. 4). The defense is seeking disclosure of any statements that may be “relevant to any possible defense or contention” that he might assert, including attacking the indictment for vagueness or overbreadth. (Doc. 26 at p. 4-5). Finally, defendant claims that the indictment fails to state an offense because the grand jury did not find that he had the appropriate mens rea. Defendant doubts that the grand jury was instructed on the mens rea requirement and thus, the indictment is defective. (Doc. 29 at p. 4-5). He is seeking disclosure of the grand jury transcripts to find out whether the grand jury was instructed on the mens rea required for the offense.
The government argues that the indictment is legally sufficient and the motion for the bill of particulars should be denied. (Doc. 25). The government has provided the defendant with essentially “open” discovery “of all information in its possession, and will continue to provide the same on an ongoing basis to the extent new information becomes available.” (Doc. 25 at p. 3). The discovery the government is providing informs the defendant of “the details of the crime alleged in the Indictment.” (Doc. 25 at p. 3-4).
As to the grand jury transcripts, the government argues that a grand jury transcript is not subject to discovery and is not required by Rule 16 of the Federal Rules of Criminal Procedure or the Jenks Act, 18 U.S.C. Section 3500. (Doc. 25 at p. 4). While the transcripts may be disclosed under certain circumstances authorized by Rule 6 of the Federal Rules of Criminal Procedure, “a long established policy” maintains the secrecy of the transcripts. (Id.) Bare allegations that the transcripts should be disclosed is insufficient to show a “particularized need” that “disclosure is necessary to avoid injustice.” (Doc. 25 at p. 5) and the defendant has not shown a specific defect to warrant disclosure. (Doc. 34 at p. 3). The defendant seeks disclosure of the grand jury transcripts because a ground may exist to dismiss the indictment, but fails to allege that a ground may exist due to a defect that occurred before the grand jury. (Doc. 25 at p. 5).
I. Bill of Particulars
Mr. Glenn seeks an order from this Court directing the government to provide him with a bill of particulars. An indictment must be “a plain, concise, and definite written statement of the essential facts constituting the offense charged….” Fed. R. Crim. P. 7(c)(1). Federal Rule of Criminal Procedure 7(f) states that the Court “may direct the government to file a bill of particulars.” The defendant may move for a bill of particulars if he believes “that an indictment does not provide enough information to prepare a defense.” United States v. Huggans, 650 F.3d 1210, 1220 (2011) (citing United States v. Livingstone, 576 F.3d 881, 883 (8th Cir. 2009)). The indictment should include the elements of the offense and the “specific facts constituting the offense.” United States v. Johnson, 225 F.Supp.2d 982 (N.D. Iowa 2002).
“The purpose of a bill of particulars is to inform the defendant of the nature of a charge with sufficient precision to enable him to prepare for trial and avoid or minimize the danger of a surprise at trial.” Id. A bill of particulars “is not a discovery device to be used to require the government to provide a detailed disclosure of the evidence that it will present at trial.” Huggans, 650 F.3d at 1220. The Court has broad discretion whether to order the government to provide a bill of particulars. United States v. Key, 717 F.2d 1206, 1210 (8th. Cir. 1983). The Court should grant the motion if necessary to “prevent unfair surprise at trial.” United States v. Maull, 806 F.2d 1340, 1345 (8th Cir. 1986). The Court must “strike a ‘prudent balance’ between the ...