United States District Court, D. South Dakota, Central Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
A BILL OF PARTICULARS
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
Big Crow (Big Crow), filed a Motion for a Bill of
Particulars, Doc. 27, under Federal Rule of Criminal
Procedure 7(f). The government opposes the motion. Doc. 28.
For the reasons explained below, Big Crow's motion is
Indictment in this case charges Big Crow with two counts of
Child Abuse and two counts of Operating a Motor Vehicle Under
the Influence of Alcohol with a Minor Present in the Motor
Vehicle. Doc. 1. Big Crow's Motion for Bill of
Particulars concerns only counts one and two in the
Indictment. Doc. 27 at 1. Counts one and two relate to two
different minor victims, but contain virtually identical
language: "On or about the 22nd day of October, 2017, in
Todd County, in Indian country, in the District of South
Dakota, Maria Big Crow, an Indian, did abuse, expose,
torture, torment, and cruelly punish [LB. and S.R,
respectively], a child who had not attained the age of seven,
in violation of 18 U.S.C. § 1153 and SDCL 26-10-1."
Crow maintains that it is unclear as to which act or acts she
committed that constitute child abuse and that it "is
equally unclear as to what theory of child abuse [she] is
defending against." Doc. 27 at 1-2. According to Big
Crow, the "only verb" that seems to apply in this
case is "expose," which she argues is "in and
of itself ambiguous." Doc. 27 at 2. Finally, Big Crow
avers that "the conjunctive nature of the state
statute" does not provide her sufficient notice to
reasonably formulate a defense. Doc. 27 at 2.
of the Federal Rules of Criminal Procedure requires that an
indictment "be a plain, concise, and definite written
statement of the essential facts constituting the offense
charged." Fed. R. Crim. P. 7(c)(1). Similar to an
indictment, "[t]he 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
to avoid or minimize the danger of surprise at trial."
United States v. Huggans. 650 F.3d 1210, 1220 (8th
Cir. 2011) (quoting United States v. Livingstone,
576 F.3d 881, 883 (8th Cir. 2009)). "An indictment
adequately states an offense if: it contains all of the
essential elements of the offense charged, fairly informs the
defendant of the charges against which he must defend, and
alleges sufficient information to allow a defendant to plead
a conviction or acquittal as a bar to a subsequent
prosecution." United States v. Beasley. 688
F.3d 523, 532 (8th Cir. 2012) (quoting United States v.
Haves. 574 F.3d 460, 472 (8th Cir. 2009)): see also
United States v. Wessels. 12 F.3d 746, 750 (8th Cir.
1993). Generally, an indictment is "sufficient unless it
is so defective that it cannot be said, by any reasonable
construction, to charge the offense for which the defendant
was convicted." Beasley. 688 F.3d at 532
(quoting Haves. 574 F.3d at 472). This Court has
broad discretion in deciding whether the circumstances merit
granting a motion for a bill of particulars. United
States v. Stephenson, 924 F.2d 753, 762 (8th Cir. 1991).
case, the Indictment adequately states the offenses Big Crow
is charged with and minimizes the element of surprise at
trial. See Beasley. 688 F.3d at 532;
Wessels. 12 F.3d at 750. Each of the two counts in
question listed in the Indictment is confined to a narrow
timeframe, contain the essential elements of the offense of
child abuse, fairly informs Big Crow of the charges which she
must defend against, and enables double jeopardy to be plead
in a case of subsequent prosecution. See United States v.
Iron Hawk. 612 F.3d 1031, 1036 (8th Cir. 2010) (stating
that the essential elements of a violation of 18 U.S.C.
§ 1153 and SDCL § 26-10-1 are that the defendant
"without just cause, abused, exposed, tortured,
tormented, or cruelly punished [the alleged victims], [the
children were] under seven years of age; [the defendant] is
an Indian; and the offense took place in Indian
Country"): State v. Myers. 857 N.W.2d 597, 600
(S.D. 2014) (holding that prescribing felony punishment for
any person who "exposes" a minor under SDCL §
26-10-1 was not unconstitutionally vague); Huggans,
650 F.3d at 1218 (stating that the timeframe alleged in an
indictment may be case specific and finding that indictment
which alleged a drug conspiracy over an seven-year period
adequately set forth the approximate dates at issue).
of particulars is not intended to serve as a supplement or
substitute for discovery. United States v. Matlock.
675 F.2d 981, 986 (8th Cir. 1982) ("Acquisition of
evidentiary detail is not the function of the bill of
particulars." (quoting Hemphill v. United
States, 392 F.2d.45, 49 (8th Cir. 1968)));
Wessels. 12 F.3d at 750 (stating that a bill of
particulars should not be used as discovery tool or to obtain
a detailed disclosure of the prosecution's evidence);
United States v. Massat. No. CR. 15-50089-JLV, 2018
WL 583109, at *7 (D.S.D. Jan. 29, 2018) (denying
defendant's motion for a bill of particulars because the
defendant sought it simply as a discovery device), indeed,
the availability of information as to the specific conduct
and facts of the charges from other sources, such a pretrial
discovery, eliminates the need for a bill of particulars. See
Huggans, 650 F.3d at 1220 (affirming the district
court's denial of defendant's motion for a bill of
particulars as moot because the government previously
disclosed "virtually every piece of information
sought" by defendant through methods which included
pretrial discovery); United States v. Bradley. No.
CR. 09-50029-02-KES, 2010 WL 1409447, at *1 (D.S.D. Mar. 31,
2010) ("A motion for a bill of particulars should not be
granted if the desired information has been provided through
pretrial discovery or in some other acceptable
government in its response disclosed that discovery has been
provided to Big Crow which includes the facts and
circumstances that Big Crow allegedly "started drinking
between approximately 9:30 a.m. and 10:00 a.m." on
October 22, 2017. Doc. 28 at 1-2. "[S]he drank
approximately nine drinks" before 1:00 p.m. when she
"lost control of a vehicle" she was driving. Doc.
28 at 2. The vehicle fishtailed, ran off the road, and
subsequently rolled. Doc. 28 at 2-3. Two children, a
one-year-old boy, LB., and a fourteen-month-old girl, S.R.,
were in the vehicle. Doc. 28 at 2. While S.R, "was
determined to have no significant injuries," I.B.
"was diagnosed with an occipital skull fracture."
Doc. 28 at 3. Additionally, Big Crow acknowledges in her
motion that the charges contained in the Indictment
"arise from a vehicle accident in which Ms. Big Crow is
alleged to have been the intoxicated driver of the vehicle
that got into an accident, with two children in the
car." Doc. 27 at 2. Given that acknowledgement, pretrial
discovery, and the language contained in each of the four
counts in the Indictment, Big Crow can properly prepare for
and defend herself at trial.
this Court finds unavailing Big Crow's argument that the
conjunctive nature of the statute or indictment deprives her
of sufficient notice to formulate a defense. Despite the
disjunctive language of SDCL § 26-10-1, there is nothing
improper about an indictment charging in the conjunctive to
fully inform Big Crow of the charges brought against her. See
SDCL § 26-10-1 (penalizing whomever "abuses,
exposes, tortures, torments, or cruelly punishes a
minor" (emphasis added)); United States v. Van
Nguyen. 602 F.3d 886, 900 (8th Cir. 2010) ("[W]here
a 'statute specifies two or more ways in which one
offense may be committed, all may be alleged in the
conjunctive in one count of the indictment, and proof of any
one of the methods will sustain a conviction.'"
(quoting United States v. Roy, 408 F.3d 484, 492 n.4
(8th Cir. 2005))), abrogated on other grounds by
Honevcutt v. United States, 137 S.Ct. 1626, 1631 n.l
foregoing reasons, it is hereby
that Defendant's Motion for a Bill of Particulars, Doc.
27, is denied.
 The South Dakota child abuse criminal
statute, SDCL § 26-10-1, is assimilated into federal law
under 18 U.S.C § 1153. The Supreme Court of South Dakota
has addressed and rejected Big Crow's argument that the
use of the word "expose" in the statute somehow is
unconstitutionally vague or fails to provide sufficient
notice of what conduct is being outlawed. State v.
Myers, 857 N.W, 2d 597, 599-600 (S.D. 2014); State
v. Hoffman. 4 ...