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United States v. Featherman

United States District Court, D. South Dakota, Western Division

September 18, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
TERRY FEATHERMAN, Defendant.

          ORDER DENYING MOTION FOR BILL OF PARTICULARS; GRANTING MOTION FOR DISCLOSURE OF GRAND JURY TESTIMONY

          DANETA WOLLMANN, UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         On 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.

         On July 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).

         BACKGROUND

         Mr. 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).

         Mr. 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.

         SA 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.

         The 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.

         Mr. 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).

         DISCUSSION

         I. Bill of Particulars

         a. The Motion is Untimely

         Rule 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 ...


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