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United States v. Anderson

United States District Court, Ninth Circuit

July 5, 2013

United States of America, Plaintiff,
v.
Keith Deshawn Anderson, Defendant.

REPORT & RECOMMENDATION

CHARLES R. PYLE, Magistrate Judge.

Defendant Anderson has joined in co-defendant Conrad's Motion for Bill of Particulars (Doc. 79) and Motion to Dismiss Indictment (Doc. 83). ( See also Docs. 93, 111, 120). The Government has responded to each motion. ( See Docs. 102, 103). The Motions came on for hearing on July 1, 2013, with regard to Defendant Anderson. For the following reasons, the Magistrate Judge recommends that the District Court, after its independent review, deny both Motions with regard to Defendant Anderson.

FACTUAL BACKGROUND

Defendant Anderson is charged by Superceding Indictment with: (1) 5 counts alleging that on various dates, at or near various specified locations, Defendant Anderson knowingly transported L.M., an individual under 18 years of age, in interstate commerce from Arizona to Nevada "with the intent that L.M. engage in any sexual activity for which any person can be charged with a criminal offense; that is, statutory sexual seduction under Nevada Revised Statute 200.364 and 200.368(1); all in violation of..." 18 U.S.C. § 2423(a) (Counts 1, 3, 5-7); and (2) 1 count alleging that on or about July 1, 2011 and continuing to July 31, 2011, at or near Sierra Vista, Arizona, Defendant Anderson and co-defendant Conrad "did knowingly and intentionally combine, conspire, confederate, and agree together and with other persons known and unknown to the grand jury to knowingly transport L.M., an individual who had not attained the age of 18 years, in interstate commerce, from the State of Arizona to the State of Nevada, with the intent that L.M. engage in any sexual activity for which any person can be charged with a criminal offense; that is, statutory sexual seduction under Nevada Revised Statute 200.364 and 200.368(1), in violation of..." 18 U.S.C. § 2423(a), all in violation of 18 U.S.C. § 2423(e) (Count 2). (Doc. 36).

MOTION FOR BILL OF PARTICULARS

Defendant argues that the indictment fails to specify the means and methods used to carry out the conspiracy, nor does it allege any overt acts. In the alternative, because of the volume of disclosure (2209 pages & 8-10 CD. recorded interviews and/or phone calls), Defendant requests the Court order the Government to designate the evidence it will rely upon at trial to prove the conspiracy charge.

Pursuant to Rule 7 of the Federal Rules of Criminal Procedure, "[t]he court may direct the government to file a bill of particulars." Fed.R.Crim.P. 7(f). Although "[a] motion for a bill of particulars is appropriate where a defendant requires clarification in order to prepare a defense, " United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983), it is not a discovery device. United States v. Giese, 597 F.2d 1170, 1180 (9th Cir. 1979). A bill of particulars serves "three purposes: to apprise the defendant of the specific charges being presented so as to minimize surprise at trial, to aid the defendant in preparing for trial, and to protect against double jeopardy." United States v. Burt, 765 F.2d 1364, 1367 (9th Cir. 1985). A request for a bill of particulars is addressed to the trial court's discretion. Long, 706 F.2d at 1054. The "court should consider whether the defendant has been advised adequately of the charges through the indictment and all other disclosures made by the government." Id.

Under 18 U.S.C. § 2423(a):

A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, or in any commonwealth, territory or possession of the United States, with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 10 years or for life.

18 U.S.C. § 2423(a). Section 2423(e) provides that:

Whoever attempts or conspires to violate subsection (a), (b), (c), or (d) shall be punishable in the same manner as a completed violation of that subsection.

18 U.S.C. § 2423(e).

The Government points out that unlike the general conspiracy statute, 18 U.S.C. § 371, which explicitly requires an overt act, § 2423(e) does not specifically require an overt act. The Supreme Court has been clear that the Government is not required to allege or prove an overt act in furtherance of the conspiracy unless the statute explicitly requires it. See United States v. Shabani, 513 U.S. 10, 15-16 (1994) (applying in context of drug conspiracy statute "the settled principle of statutory construction that, absent contrary indications, Congress intends to adopt the common law definition of statutory terms... [w]e have consistently held that the common law understanding of conspiracy does not make the doing of any act other than the act of conspiring a condition of liability.") (citations and internal quotation marks omitted).

The Superceding Indictment apprises Defendant of: the charged offense and its elements; the initials of the minor victim; the dates, time period, and location of each alleged offense; the identity of the co-conspirator; and Defendants' alleged conduct and intent. Further, the Government has disclosed over 2000 pages and numerous CD. recorded interviews and jail calls. ( See Doc. 102, p. 3). The Government also intends to disclose "a report regarding analysis of phones and computers seized and a copy of the victim's birth certificate...." ( Id. ). The Government asserts that "[t]he disclosure supplies all of the particular information [Defendant is]... requesting." ( Id. at p. 5). At oral argument, the Government stated that the alleged conspiracy was between Defendants Anderson and Conrad to take the underage victim from Arizona to Nevada to engage in criminal sexual activity with the victim, and that the disclosure includes interviews of the victim that support this theory. To the extent that the indictment itself provides details of the alleged offense, a bill of particulars is unnecessary. Giese, 597 F.2d at 1180. Moreover, "full discovery also obviates the need for a bill of particulars." Id. The instant record supports the conclusion that Defendant Anderson has "been advised adequately of the ...


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