United States District Court, N.D. West Virginia, Elkins
PRESTON BAILEY UNITED STATES DISTRICT JUDGE.
day, the above-styled matter came before this Court upon
consideration of the Report and Recommendation of United
States Magistrate Judge Michael John Aloi. By Local Rule,
this action was referred to Magistrate Judge Aloi for
submission of a proposed report and a recommendation
("R&R"). Magistrate Judge Aloi filed his
R&R on July 16, 2018 [Doc. 636]. In that filing, the
magistrate judge recommended that this Court grant in part
and deny in part Defendant Rocky Idleman's Motion to
Suppress Evidence of "Ohio Stop" [Doc, 567] and
Supplemental Motion to Suppress Evidence [Doc. 588]. The
magistrate judge also denied a pending non-dispositive
motion, a Motion for Bill of Particulars [Doc. 562].
Report and Recommendation
to 28 U.S.C. § 636(b)(1)(C), this Court is required to
make a de novo review of those portions of the
magistrate judge's findings to which objection is made.
However, the Court is not required to review, under a de
novo or any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of
the findings or recommendation to which no objections are
addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985).
In addition, failure to file timely objections constitutes a
waiver of de novo review and the right to appeal
this Court's Order. 28 U.S.C. § 636(b)(1);
Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.
1989); United States v. Schronce, 727 F.2d 91, 94
(4th Cir. 1984).
objections to Magistrate Judge Aloi's R&R were due
within fourteen (14) days of filing of the same, pursuant to
28 U.S.C. § 636(b)(1) and Federal Rule of Civil
Procedure 72(b). The defendant filed his Objections to Report
and Recommendation Document 636 as to the Motion for Bill of
Particulars [Doc. 640] on July 30, 2018. Therein, the
defendant only raises objections to the magistrate
judge's denial of his Motion for Bill of Particulars, and
does not raise any objections to the R&R itself.
Accordingly, this Court need only review the R&R for
clear error. Upon careful consideration, this Court finds no
such error, and will adopt the R&R.
Denial of Non-Dispositive Motion
judges are also empowered to hear and determine
non-dispositive motions filed in a criminal case. 28 U.S.C.
§ 636(b)(1)(A). Where objections are filed to such a
determination, a deferential standard of review
applies-"[a] judge of the court may reconsider . . .
where it has been shown that the magistrate judge's order
is clearly erroneous or contrary to law." Id.;
see also United States v. Monies,2013 WL1411113, at
*2 (N.D. W.Va. 2013)
(Stamp, J.) ("[A]ny objections to [the magistrate
judge's] determinations are to be considered under the
deferential 'clearly erroneous or contrary to law'
defendant also filed a Motion for Bill of Particulars [Doc.
562], in which he argues that the indictment is insufficient
to apprise him of the charges against him so that he might
prepare a defense, particularly as to Count I. Specifically,
the defendant argues that, due to the "complicated
nature of this case" and the broad span of the
indictment, he requires additional information-namely, at a
hearing on the motion, the defendant requested information as
to "what acts he is alleged to have committed in
furtherance of the conspiracy" and "who he is
alleged to have conspired with." [Doc. 635, p. 6],
Further, it appears that the defendant also seeks information
about the time that the substantive offenses were allegedly
committed, so that he might prepare an alibi defense. The
defendant also specifically requested a "particularized
statement as to what it is that he's alleged to have
done" and "where it is he is alleged to have
possessed a firearm in Harrison County." [Id.,
pp. 6-7]. In response, the Government stated that it has
provided the defendant with nearly all discovery material and
a list of places where the defendant is specifically
mentioned in the discovery materials, and that it intends to
use all of the provided material [Id., p. 8].
denying the defendant's motion, the magistrate judge
found that the defendant's arguments were issues for
discovery, because the Government had made full discovery and
would continue to supplement that discovery. As noted above,
the defendant filed objections to the magistrate judge's
order, and argues that, "[although the [Government has
provided full discovery, the indictment employs boilerplate
language and is entirely lacking in terms of specificity and
underlying essential facts." [Doc. 640, p. 2].
Specifically, the defendant asserts that Count I of the
Indictment covers an overly broad period of time, contains
only a recitation of the statutory language, and
"fail[s] to articulate any detail as to who agreed with
whom, to do what and how." [Id.]. The defendant
also argues that there is no overlap between the different
counts, and indicates that multiple conspiracies might be
defendant does not, however, raise any new arguments or
identify any legal error in the magistrate judge's
determination. Rule 7 of the Federal Rules of Criminal
Procedure provides for the issuance of a bill of particulars,
the purpose of which:
is to inform the defendant of the nature of the charges
against him to adequately prepare his defense, to avoid
surprise during the trial and to protect him against a second
prosecution for an adequately described offense .. . when the
indictment itself is too vague and indefinite for such
Wong Tai v. United States, 273 U.S. 77 (1927). As
the magistrate judge noted in his denial, Rule 7(f) "is
not to be used to provide detailed discourse of the
[G]ovemment's evidence in advance of trial."
United States v. Automated Medic. Labs., Inc., 770
F.2d 399, 405 (4th Cir. 1985).
unpublished opinion, the Fourth Circuit concluded that a bill
of particulars was not warranted where the defendant alleged
that "the indictment's allegations were too vague
for him to adequately prepare for trial, and that a bill of
particulars was necessary to pinpoint the location of any
information in the voluminous evidence that the Government
planned to use against him." United States v.
Adams, 335 Fed.Appx. 338, 344 (4th Cir. 2009). The
Adams court noted that the Government had allowed
the defendant full access to discovery materials in a
navigable format and identified where evidence against him
would be found in the materials, and that "the purpose
of a bill of particulars is 'fully satisfied' when
the Government turns over its entire file to the
defendant." Id. (quoting United States v.
Schembari, 484 F.2d 931, 935 (4th Cir. 1973)).
Accordingly, a bill of particulars was not necessary. See,
e.g., United States v. Soc'y of Indep. Gasoline
Marketers of Am., 624 F.2d 461, 466 (4th Cir. 1980)
(denial of bill of particulars not an abuse of discretion in
"light of... extensive disclosure by the
Government"); Schembari, 484 F.2d at 935 (4th
Cir. 1973) (no abuse of discretion in denying bill of
particulars as "the underlying objectives of a Rule 7(f)
motion were fully satisfied by the government's voluntary
disclosure of its file"); United States v.
Amend, 791 F.2d 1120, 1125 (4th Cir. 1986) (no prejudice
resulted from denial of bill where all necessary information
was obtained from government files).
the Government has stated that it has turned over nearly all
discovery materials, will continue to supplement disclosures,
and has provided a list of locations where the defendant
appears in the discovery materials. While the defendant may
have further questions as to the sufficiency of the evidence,
a motion for bill of particulars is no longer the proper
recourse, because there are no further particulars to
provide. From the record, it ...