UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
________________________________________________________________________
UNITED STATES OF AMERICA,
Plaintiff,
Case No. 17-CR-124
v.
MARCUS HUTCHINS,
Defendant.
________________________________________________________________________
DEFENDANT’S REPLY IN SUPPORT OF MOTION FOR A BILL OF
PARTICULARS WITH RESPECT TO COUNTS ONE AND SIX (DOC. NO. 54)
________________________________________________________________________
The government’s arguments against having to furnish a bill of particulars
to Marcus Hutchins with respect to Counts One and Six miss the point and are
meritless. The Court should order the government to particularize: (1) the
purported “damage” it intends to offer into evidence at trial in connection with
the alleged violations of the CFAA by the two defendants; and (2) the “10 or
more protected computers” to which it contends the defendants conspired and
attempted to cause “damage.”
Opposing particularization of the alleged “damage,” the government
offers two arguments. It first contends that having to furnish such particulars
would be, “[t]o a certain extent,” premature expert disclosure. (Gov’t Response
at 1-2 (Doc. No. 64).) Not so. Asking what alleged “damage” was caused seeks

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 only basic factual evidence, not expert evidence. The government’s contention is
therefore not a valid reason to deny this request for particularity.
The government then states that Mr. Hutchins “know[s] how Kronos
damages a computer,” a claim that misses the point of particularization. The
defense is not seeking to learn how Kronos might allegedly harm a computer.
Rather, it wants to learn what was allegedly the “damage,” actual or intended, as
it exists as an element of the offenses charged in Counts One and Six.
Turning to the “10 or more protected computers,” that is also an element of
the relevant offenses. Here, the government argues that because Count One is a
conspiracy charge the government does not need to prove Mr. Hutchins
conspired to damage any specific computers. If the government does not intend
the offer any such evidence (i.e., which protected computers the supposed
conspirators intended to damage) at trial, the Court should hold the government
to that position and order that the government is not permitted to try to offer
such evidence at trial unless it offers the particulars now.
If, however, the government does intend to attempt to introduce such
evidence at trial (as would seem to be the case), the Court should order the
government to particularize those details now, as well as produce any related
discovery. The government will likely try to offer such evidence at trial because,
to engage in a conspiracy to violate a particular statute, a conspirator “must
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 intend to further an endeavor which, if completed, would satisfy all of the
elements of a substantive criminal offense[.]” Salinas v. United States, 522 U.S. 52,
65 (1997).
Turning to Count Six, the government again falls back on the inchoate
nature of the charged offense, arguing that because this is an attempt charge, the
government does not have the burden of proving 10 or more specific computers.
As with Count One, the government does not deny that it may offer such
evidence. The Court should hold it to that position and order that the
government is not permitted to try to present such evidence at trial unless it
particularizes now.
And if the government does intend to particularize at trial the computers
Mr. Hutchins and his co-defendant allegedly attempted to damage for purposes
of Count Six, this Court should order the government to particularize those
details now and produce any related discovery materials. The government will
probably want to introduce such evidence because attempts require an intent to
carry out acts that satisfy each element of the relevant crime. United States v.
Morris, 827 F.3d 696, 699 (7th Cir. 2016) (Hamilton, J., concurring).
Overall, knowing what damage the two defendants purportedly intended
to cause and to which alleged computers is necessary for Mr. Hutchins’ ability to
prepare for trial, to minimize surprise at trial, and to avoid double jeopardy
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 issues. See Wong Tai v. United States, 273 U.S. 77, 80-92 (1927). At present, Mr.
Hutchins is missing this critical information. As such, the Court should grant the
motion for a bill of particulars with respect to Counts One and Six.
DATED: April 30, 2018

Respectfully submitted,
/s/ Brian E. Klein
BRIAN E. KLEIN
Baker Marquart LLP
2029 Century Park E – Suite 1600
Los Angeles, CA 90067
Email: bklein@bakermarquart.com
Telephone: (424) 652-7800
/s/ Daniel W. Stiller
DANIEL W. STILLER
DStillerLLC
Box 511130
Milwaukee, WI 53203
Email: dan@dstillerllc.com
Telephone: (414) 207-3190
/s/ Marcia Hofmann
MARCIA HOFMANN
Zeitgeist Law PC
25 Taylor Street
San Francisco, CA 94102
Email: marcia@zeitgeist.law
Telephone: (415) 830-6664
Attorneys for Marcus Hutchins

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