Case 5:13-cr-00655-XR Document 179 Filed 02/18/16 Page 1 of 9 UNITED STATES DISTRICT COURT WESTERN DIVISION OF TEXAS SAN ANTONIO DIVISION UNITED STATES OF AMERICA, Plaintiff, v. MARCIANO MILLAN VASQUEZ ) ) ) ) ) ) ) NO. 5:13-CR-00655-XR GOVERNMENT’S BRIEF AND RESPONSE TO DEFENDANT’S MOTION FOR BILL OF PARTICULARS Comes now the United States Attorney for the Western District of Texas and files this Response to the Defendant’s Motion for Bill of Particulars, and for cause, would respectfully show unto the Court the following: I. Defendant Marciano Millan Vasquez filed a Motion for a Bill of Particulars pursuant to FED. R. CRIM. P. 7(f) and various Constitutional provisions, requesting information as is more fully set forth below. It is somewhat paradoxical that, contemporaneous with this filing, the Defendant has also sought an order to strike surplusage from the indictment pending in the cause complaining of too much information. Here, in an exercise in mutual exclusivity, the Defendant seeks more information in the indictment. In reality, neither of the Defendant’s Motions are appropriate under the facts and circumstances before the Court. As to Count One, the Defendant seeks the following: 1. The Defendant has made available to the Defendant discovery and reports related to the information sought. Full information and particulars upon which the Government basis its good faith belief of when, where, and how Defendant engaged in the acts alleged in Count One; 2. Where the alleged murder(s) occurred and who the alleged victims of the murder(s) alleged were; 3. Case 5:13-cr-00655-XR Document 179 Filed 02/18/16 Page 2 of 9 What role if any the murder victims had in the conspiracy alleged in this indictment or their linkage to any of the alleged conspirators. The Defendant has already received the reports from law enforcement related to these matters, and will continue to receive any additional information developed by law enforcement. To the extent such information exists, the reports contain all such information responsive to the Defendants request. It should be noted, however, that the identities and details of these events are not all known to the government. For example, in some instances, the Defendant made admissions about these crimes to co-conspirators, and while he told them that the persons were killed and provided facts about the killings, the Defendant did not provide all of the details of each killing alleged in Count I. In other instances, the witnesses were themselves kidnapped and taken to unknown locations where they personally witnessed the Defendant order the murder of multiple individuals. Finally, to the extent that the United States has information on the connection that any of the deceased had to the Defendant or other co-conspirators, that information has been available for Defense review and will be highlighted in subsequent disclosures and conversations with the Defense. In some instances, the connection is known, e.g. the deceased lost a load, owed money to the cartel or was thought to be a snitch. In other instances, the person(s) killed we used to make an example for or to terrorize the witness, and the nature of their identity and the nature of any involvement is not known. As to Counts One through Nine, the Defendant seeks: 1. The names of all persons which the government in good faith belief conspired with Defendant; 2. When, where and how Defendant entered into the unlawful conspiratorial agreement; 3. All overt acts claimed by the Government to have been committed by the Defendant to evidence his unlawful conspiratorial agreement. Case 5:13-cr-00655-XR Document 179 Filed 02/18/16 Page 3 of 9 As will be discussed infra, the Defendant is not entitled to require the United States to plead the information sought, nor is the United States required to prove these matters. 1 It is well settled that the government does not have to identify all of the co-conspirators, set forth all of the Defendant’s acts or plead all the Defendant’s overt acts. The Defendant is seeking information to which he is either not entitled under the law, impermissibly seeks the Government’s work product or legal theories, or in some cases, has already provided to the defense in the voluminous discovery made available to date. II. The purpose of a Bill of Particulars is to inform the accused of the charge against him with sufficient precision so as to enable such defendant to prepare his defense, to avoid or minimize the danger of surprise at trial, or to enable such defendant to plead his acquittal or conviction in bar of further prosecution. Wong Tia v. United States, 273 U.S. 77 (1927); United States v. Hawkins, 661 F.2d 436, 451 (5th Cir. 1981); United States v. Burgin, 621 F.2d 1352, 1359 (5th Cir. 1980); United States v. Haas, 583 F.2d 216, 221 (5th Cir. 1978, cert. denied, 440 U.S. 981 (1979); United States v. Davis, 582 F.2d 947, 951 (5th Cir. 1978), cert. denied, 441 U.S. 962 (1979). A defendant has no right to a Bill of Particulars, and the decision whether to grant such a motion lies within the sound discretion of the trial court. Burgin, 624 F.2d at 1358. A court’s discretion to deny a motion for a Bill of Particulars will not be disturbed absent a showing of a defendant’s actual surprise at trial and prejudice to the defendant’s substantial rights. United States v. Lavergne, 805 F.2d 517, 520 (5th Cir. 1986). III. 1 See 5th Circuit Pattern Jury Instruction 2.20, “The government need not prove that the alleged conspirators entered into any formal agreement, nor that they directly stated between themselves all the details of the scheme. Similarly, the government need not prove that all of the details of the scheme alleged in the indictment were actually agreed upon or carried out. Nor must it prove that all of the persons alleged to have been members of the conspiracy were such, or that the alleged conspirators actually succeeded in accomplishing their unlawful objectives.” Case 5:13-cr-00655-XR Document 179 Filed 02/18/16 Page 4 of 9 It is well-settled that generalized discovery is not a permissible goal of a Bill of Particulars. Davis, 582 F.2d at 951. The Defendant is not entitled to a Bill of Particulars with respect to information which is already available to him. Demetree v. United States, 207 F.2d 892, 894-895 (5th Cir. 1953). Providing a defendant with discovery addressing in some form the issues raised by a defendant in claiming a need for a Bill of Particulars suffices as ground for denying a Bill of Particulars as compliance with discovery obviates the need for a Bill of Particulars. United States v. Kirkham, 129 Fed.Appx. 61, 72-73 (5th Cir. 2005)(per curiam)(unpub); United States v. Cruz, 54 Fed.Appx. 413 (5th Cir. 2002)(per curiam)(unpub); United States v. Vasquez, 867 F.2d 872, 874 (5th Cir. 1989). The Government has complied with the requirements of Brady, Giglio, and the Court’s Standing Discovery Order and will continue to supplement the discovery which has already been given, and made available to Defense Counsel, as soon as any such supplemental discovery becomes available. In so doing, all of the information requested by the Defendant to which he is entitled at this time has already been provided to him. However, as to the Defendant’s request for times, dates, locations, method of murder, conspiratorial role if any of those murdered, and names of those murdered, that information, where available to the government, this information was provided. 2 If additional information is acquired, it too will be provided. It should be noted, however, such information is not available for all violent acts that the government intends to prove at trial. The evidence will show that this was by the Defendant’s design. Witnesses will testify that the Defendant dismembered and burned or “cooked” the bodies of his victims. As to the Defendant’s request for when, where, and how Defendant conspired, the name of all coconspirators, and overt acts taken by Defendant in furtherance of the conspiracy, the same is true, 2 In the discovery, the names of several of the Defendant’s victims are identified. The Defendant falsely asserts that none of these persons have been identified. The Government will point the Defendant to these names in the discovery if requested. Case 5:13-cr-00655-XR Document 179 Filed 02/18/16 Page 5 of 9 and much of this information has been provided in discovery. It is, however, not required nor possible for the United States to plead all drug trafficking or money laundering activities the government intends to prove at trial. A Bill of Particulars is not an investigative tool for the defense and is not available in order “to obtain detailed exposition of [the Government’s] evidence or to explain the legal theories upon which it intends to rely at trial.” Burgin, 651 F.2d at 1359; United States v. Kilrain, 566 F.2d 979, 985 (5th Cir. 1978), cert. denied, 439 U.S. 819 (1978); United States v. Hajecate, 683 F.2d 894, 898 (5th Cir. 1982) cert. denied, 461 U.S. 927 (1983). An inquiry into the Government’s legal or evidentiary theory as to the means by which the Defendant committed specific criminal acts is not a proper subject or purpose for a Bill of Particulars. Hajecate, 683 F.2d at 898; Burgin, 621 F.2d at 1359; Kilrain, 566 F.2d at 985. Hence, as to Defendant’s request to know “how Defendant entered into the unlawful conspiratorial agreement” and the manner in which Defendant did commit murder, the Government is not required to provide such information. See Matos-Peralta, supra at 791. These requests essentially ask for the Government to explain its legal and evidentiary theories, and as such, they are inappropriate. If required to furnish particulars, the Government would be unduly confined in its theory of proof. United States v. Flom, 558 F.2d 1179, 1185-1186 (5th Cir. 1977). Additionally, while the Defendant would like an exhaustive list of co-conspirator’s, he is not entitled to one. A defendant has “no right to obtain a list of witnesses by simply calling [the] request a ‘bill of particulars’”. United States v. Andersen, 799F.2d 1438, 1442 (11th Cir. 1986). It is not a way of compelling the United States to disclose evidentiary details. United States v. Gabriel, 715 F.2d 1447, 1449 (10th Cir. 1983)(citing United States v. Burgin, 621 F.2d 1353 (5th Cir. 1980)). Indeed the list of a criminal enterprise as large as the Los Zeta drug Cartel would be Case 5:13-cr-00655-XR Document 179 Filed 02/18/16 Page 6 of 9 prohibitive and impossible. Additionally, the government has made the defendant aware of many of his co-conspirators through the discovery provided to the defense. There is ample support for the proposition that a defendant may not use a Motion for a Bill of Particulars to compel disclosure of a Government’s witness list. United States v. Pena, 542 F.2d 292, 294 (5th Cir. 1976); United States v. Largent, 545 F.2d 1039, 1044 (6th Cir. 1976), cert. denied, 429 U.S. 1117 (1977). A Bill of Particulars may be granted to compel the Government to disclose the names of unindicted co-conspirators, but only if the Government intends to call them as witnesses. In this regard, through the discovery process, the Government has disclosed and will disclose the names of unindicted co-conspirators of whom it has knowledge and who are expected to be called to testify, and the Government will provide a witness list to Defendant at jury selection. United States v. Barrentine, 591 F.2d 1069, 1077 (5th Cir. 1979), cert. denied, 444 U.S. 990 (1979). Similarly, the Government is not required to disclose non-alleged overt acts, since the Defendant is not entitled to discover all overt acts that might be proved at trial. United States v. Murray, 527 F.2d 401, 411 (5th Cir. 1976); Kilrain, 566 F.2d at 985. An indictment charging a conspiracy under §846 need not allege any overt acts because no overt acts need be proven in order to convict a defendant. United States v. Shabani, 513 U.S. 10 (1994); Whitfield v. United States, 543 U.S. 209 (2005). Therefore, all requests for information regarding the overt acts comprising the conspiracy should be denied. Furthermore, it has been held that the Government is not required to furnish the exact date of a conspiracy agreement. United States v. Cochran, 697 F.2d 600, 604 (5th Cir. 1983); United States v. Wolfson, 289 F.Supp. 903, 912-914 (S.D.N.Y. 1968), aff’d, 405 F.2d 779 (2nd Cir. 1968, cert. denied, 394 U.S. 946 (1969). The Government is not required to prove exactly Case 5:13-cr-00655-XR Document 179 Filed 02/18/16 Page 7 of 9 when or how a conspiracy was formed or how a particular defendant joined the scheme, and as the circumstantial proof upon which the Government has to rely to prove the details often does not reveal such details, courts have rejected demands for particulars as to the formation or entry into the conspiracy. United States v. Torres, 901 F.2d 205, 233-34 (2nd Cir. 1990); United States v. Matos-Peralta, 691 F.Supp. 780, 791 (S.D.N.Y. 1988); and United States v. Mittal, 1999 WL 461293 at 9 (S.D.N.Y. July 7, 1999). Therefore, even if such information were available to the Government, it would not be required to provide it. III. The allegations in the Indictment are clear. The copious discovery provided to the Defendant has given him actual notice of the Government’s evidence. Certainly, the Defendant could raise a plea in bar as to the transactions identified in the discovery if he were to face a subsequent prosecution for those transactions. The Defendant has not and cannot demonstrate any prejudice or point to the withholding of any fact or information which would cause them actual surprise or injury; therefore, the Government should not be required to comply with the requests of Defendant in his Motion for a Bill of Particulars. Moreover, the charges are stated precisely as the language in the statute, and the offenses involved are unmistakably identified. The discovery does provide the defendant with notice of the transactions with which defendant was involved. Certain confidential sources of information will be identified as required by Jenkes which will further link the Defendant to these transactions. Case 5:13-cr-00655-XR Document 179 Filed 02/18/16 Page 8 of 9 WHEREFORE, premises considered, the Government respectfully prays that Defendant’s Motion be denied. Respectfully submitted, RICHARD L. DURBIN United States Attorney By /S/ _________________ Russell D. Leachman Assistant U.S. Attorney Texas State Bar No. 112069710 601 NW Loop 410, Suite 600 San Antonio, Texas 78216-5512 (210) 384-7150 (210) 384-7121 FAX CERTIFICATE OF SERVICE I hereby certify that on this the 18th day of February, 2016, a copy of the foregoing motion was provided to Jaime Cavazos, Attorney for the Defendant. /S/ RUSSELL D. LEACHMAN Assistant U.S. Attorney Case 5:13-cr-00655-XR Document 179 Filed 02/18/16 Page 9 of 9 UNITED STATES DISTRICT COURT WESTERN DIVISION OF TEXAS SAN ANTONIO DIVISION UNITED STATES OF AMERICA, Plaintiff, v. MARCIANO MILLAN VASQUEZ ) ) ) ) ) ) ) NO. 5:13-CR-00655-XR ORDER DENYING DEFENDANT’S MOTION FOR BILL OF PARTICULARS On this the ____ day of March, 2016, the Court came to consider the Defendant’s Motion for Bill of Particulars. After considering the Defendant’s Motion, the Government’s Response thereto, and the applicable authority, the Court is of the opinion that the Defendant’s Motion should be denied. Accordingly, the Defendant’s Motion for a Bill of Particulars is hereby DENIED. Signed this _______ day of March, 2016. ____________________________ Honorable XAVIER RODRIGUEZ United States District Judge