United States District Court, D. South Dakota, Western Division
ORDER DENYING MOTION FOR BILL OF PARTICULARS;
GRANTING MOTION FOR DISCLOSURE OF GRAND JURY
WOLLMANN, UNITED STATES MAGISTRATE JUDGE.
November 21, 2016, Mr. Featherman was originally charged by
complaint for Misprision of a Felony in violation of 18
U.S.C. § 4. (Doc. 1). Subsequently, on December 6, 2016,
Mr. Featherman was charged in an indictment with aiding and
abetting Felony Child Abuse and Neglect in violation of 18
USC. §§ 1153 and 2 and SDCL § 26-10-1. (Doc.
22). There exists no federal offense for child abuse,
therefore, Mr. Featherman was charged under South Dakota
Codified 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.
30, 2019, Mr. Featherman filed a Motion for Bill of
Particulars with this court. (Doc. 353). On August 8, 2019,
Mr. Featherman filed a Motion for Disclosure of Grand Jury
Testimony. (Doc. 357). The pending Motions were referred to
the Magistrate Judge by Chief Judge Jeffrey L. Viken on
August 12, 2019. (Doc. 360).
Featherman seeks an order granting clarification regarding
supporting facts the government alleges in violation of the
elements of 18 U.S.C. §§ 1152 and 2 and SDCL §
26-10-1. (Doc. 353 at p. 4). Because Mr. Featherman is
charged with aiding and abetting, a specific intent crime, he
argues that the indictment must provide sufficient facts that
demonstrate purposeful conduct, and not merely an omission or
failure to act. Id. (internal citations omitted).
Featherman alleges the indictment does "not state a
single supporting fact or details that [he] counseled,
commanded, induced, procured, or willfully caused felony
child abuse." Id. at p. 7. Mr. Featherman
claims the facts he has been made aware of through FBI
Special Agent ("SA") Mark Lucas' affidavit and
written report are "inconsistent" and fail to
properly "set forth any affirmative action."
Id. at p. 3-4.
Lucas' affidavit, cited by the government in support of
the amended complaint, alleges Mr. Featherman admitted he
"would have been able to observe the conditions of the
children" and he "knew about the victims'
unhealthy condition and of J.W.C.'s hip sore."
Id. at p. 2-3 (citing Doc. 6). The affidavit further
alleges that Mr. Featherman "said their health seemed to
decline in the last month but did not do anything about it
because he was not their caretaker." Id. at p.
3 (citing Doc. 6). Mr. Featherman alleges the affidavit of SA
Lucas is "inconsistent with his written report" and
further argues there exist "discrepancies between the
audio of [Mr. Featherman's] interview and SA Lucas'
report." As such, he argues he is unable to adequately
prepare a defense due to the vagueness of the Indictment.
Id. at p. 5.
government responds that the indictment is not vague and
charges Mr. Featherman with "having committed child
abuse between August 1, 2016, and November 11, 2016, by
intentionally knowingly abusing, exposing, torturing,
tormenting and cruelly punishing I.W.C. and J.W.C., children
who had not attained the age of seven years." (Doc. 365
at p. 2). The government further responds that they have
provided Mr. Featherman 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." Id.
at p. 3.
Featherman also seeks production of the grand jury
transcripts of SA Lucas in order to determine whether grounds
may exist to dismiss the indictment. (Doc. 357). He argues
that alleged discrepancies exist between SA Lucas' grand
jury testimony, two affidavits, 302 report summarizing the
interview with Mr. Featherman, and the audio interview with
Mr. Featherman. (Doc. 358 at p. 2-4). Another reason Mr.
Featherman alleges he should be permitted to inspect grand
jury transcripts of SA Lucas is "to determine if [SA
Lucas'] testimony was truthful" based on his
"pattern of making inconsistent statements." (Doc.
358 at p.6).
Motion is Untimely
7(f) of the Federal Rules of Criminal Procedure provides that
the defendant must file a motion for a bill of particulars
within 14 days of the defendant's arraignment or at a
later time if the court permits. Fed. R. Crim P. 7(f). Mr.
Featherman's arraignment as it pertains to the indictment
was held on December 9, 2016. (Doc. 54). He filed this motion
on July 30, 2019, over two and a half years from the
arraignment. (Doc. 353). See United States v.
Arcoren, 17-CR-50125, Doc. 81 p. 6. (denying a motion
for a bill of particulars as untimely when filed nearly nine
months after the deadline passed without good cause). While
Mr. Featherman acknowledges his request is untimely, he
provides no attempt to show good cause for the failure to
file the ...