United States District Court, S.D. Florida
ORDER ON DEFENDANT'S MOTION FOR A BILL OF
G. TORRES UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Armando Lorenzo's
(“Defendant”) motion for a bill of particulars
against the United States of America (the
“Government”). [D.E. 34]. The Government
responded to Defendant's motion on July 5, 2019 [D.E. 41]
to which Defendant did not reply and the time to do so has
now passed. Therefore, Defendant's motion is ripe for
disposition. After careful consideration of the motion,
response, relevant authority, and for the reasons discussed
below, Defendant's motion is
23, 2019, a grand jury in the Southern District of Florida
returned a superseding indictment charging Defendant with
participating in a conspiracy to commit health care fraud and
wire fraud, in violation of 18 U.S.C. §§ 1343,
1349, and 1347. On June 5, 2019, Defendant was arraigned
[D.E. 27] and on June 12, 2019, the Government served
discovery on Defendant's counsel. On June 26, 2019,
Defendant filed a motion for a bill of particulars and
included eight requests for more specific information. [D.E.
34]. Two requests are for information about co- conspirators,
three are targeted at Medicare beneficiaries, and the last
three seek information on claims submitted to the Medicare
Part D program.
APPLICABLE PRINCIPLES AND LAW
Federal Rule of Criminal Procedure 7(f), the Court, in its
discretion, may direct the Government to file a bill of
particulars. A bill of particulars “inform[s] the
defendant of the charge against him with sufficient precision
to allow him to prepare his defense, to minimize surprise at
trial, and to enable him to plead double jeopardy in the
event of a later prosecution for the same offense.”
United States v. Cole, 755 F.2d 748, 760 (11th Cir.
1985) (citations omitted). It may not, however, be used to
seek generalized discovery. See United States v.
Warren, 772 F.2d 827, 837 (11th Cir. 1985) (citation
omitted). Instead, the purpose of a bill of particulars is to
“supplement[ ] an indictment by providing the defendant
with information necessary for trial
preparation.” United States v. Anderson, 799
F.2d 1438, 1441 (11th Cir. 1986) (emphasis in original).
bill of particulars was used to serve as a wholesale
discovery device, it would frustrate the federal discovery
rule. Rule 16(b)(2) of the Federal Rules of Criminal
Procedure states that the rule “does not authorize the
discovery or inspection of . . . statements made . . . by
government . . . witnesses, or by prospective government . .
. witnesses.” Fed. R. Crim. P. 16(b)(2). A defendant
who desires a list of government witnesses-or unindicted
co-conspirators could thus bypass the Rule 16(b) restriction
on discovery by asking for and receiving a bill of
particulars pursuant to Fed. R. Crim. P. 7(f), which simply
provides that the court may direct the filing of a bill of
particulars. Because a criminal defendant has no right to
obtain a list of witnesses by simply calling his request a
“bill of particulars, ” United States v.
Pena, 542 F.2d 292, 294 (5th Cir.1976), a bill of
particulars is not automatically accorded the status of a
supplement to an indictment.
motion is unpersuasive for at least two important reasons.
First, Defendant's motion is untimely. Defendant was
arraigned on June 5, 2019 [D.E. 27], and his motion was not
filed until twenty-one days later on June 26, 2019. [D.E.
34]. Defendant violated Federal Rule of Criminal Procedure
7(f) because a “defendant may move for a bill of
particular before or within 14 days after arraignment or at a
later time if the court permits.” Fed. R. Crim. P.
7(f). In this case, Defendant's motion is seven days late
and he does not provide any reason for the delay, much less
offer any “‘factual circumstances to indicate
good cause for extending the 14-day limit of Rule
7(f).'” United States v. Hinton, 2014 WL
12690115, at *3 (M.D. Ga. Apr. 15, 2014) (quoting United
States v. McKay, 70 F.Supp.2d 208, 211 (E.D.N.Y. 1999)).
Because Defendant failed to file a reply or present any
argument to explain his reasons for his untimely motion, we
have no choice but to conclude that his motion for a bill of
particulars must be DENIED.
the motion was timely, Defendant is not entitled to a bill of
particulars. “The purpose of a true bill of particulars
is threefold: to inform the defendant of the charge against
him with sufficient precision to allow him to prepare his
defense, to minimize surprise at trial, and to enable him to
plead double jeopardy in the event of a later prosecution for
the same offense.” United States v. Anderson,
799 F.2d 1438, 1441 (11th Cir. 1986) (citations omitted).
“Generalized discovery, however, is not an appropriate
function of a bill of particulars and is not a proper purpose
in seeking the bill.” Id. (citation omitted).
the Government has complied with the Standing Discovery Order
in this case [D.E. 27] and has provided Defendant with ample
discovery to prepare for his defense at trial. Defendant
complains that he needs the names of his co-conspirators and
specifically those who were recruited and paid kickbacks in
exchange for referring Medicare beneficiaries to a pharmacy.
But, the Government already produced reports that include the
names of several co-conspirators and their expected testimony
at trial, including Defendant's alleged participation in
the conspiracy. It is therefore unclear what additional
information Defendant seeks or how the information already
produced falls short of the items he needs to prepare for his
then requests that the Government produce information on
“the date, place, form of payment and amount”
that he and his co-conspirators paid in exchange for
referring Medicare beneficiaries. [D.E. 34]. Defendant's
request is unpersuasive because “[a] bill of
particulars may not be used to compel the government to
provide the essential facts regarding the existence and
formation of a conspiracy. Nor is the government required to
provide defendants with all overt acts that might be proven
at trial.” United States v. Rosenthal, 793
F.2d 1214, 1227 (11th Cir. 1986) (citing United States v.
Kilrain, 566 F.2d 979, 985 (5th Cir.1978)). So long as
there were acts in furtherance of the conspiracy that
occurred during the time frame in the superseding indictment
and the discovery produced includes evidence of
Defendant's participation in the alleged conspiracy,
Defendant's request falls outside the scope of a motion
for a bill of particulars.
remainder of Defendant's requests seek information on the
Medicare beneficiaries who submitted false claims to the
Medicare Part D program. Defendant's requests miss the
mark, however, because the discovery produced already
includes interview reports of beneficiaries who were used in
the alleged scheme. And Defendant fails to show how any of
the additional information he seeks is relevant considering
that the superseding indictment merely charges Defendant with
a conspiracy - not any other substantive causes of action.
Because the Government has already disclosed substantial
information and Defendant is otherwise not entitled to the
information he seeks (because it falls outside the scope a
bill of particulars), Defendant's motion is