Thursday, March 08, 2012

Court Rejects Claims on Bill of Particulars / Duplicity / Sufficiency

In United States v. Moyer, 2012 WL 639277 (Feb. 29, 2012), Police Officer defendants were charged with covering up a racially-motivated and fatal assault committed by local teenagers. The charges included conspiring to falsify documents with intent to obstruct investigation of a matter within the jurisdiction of an agency of the United States, (18 U.S.C. § 371), and falsifying documents (18 U.S.C. § 1519). Defendant Moyer was also charged with two counts of obstruction of justice (18 U.S.C. § 1512) and one count of making false statements (18 U.S.C. § 1001).

Defendant Nestor (the Chief of Police), moved to dismiss the conspiracy and falsifying document counts and also moved for a bill of particulars seeking (1) the agency and matter within the federal government's jurisdiction and (2) the reports alleged to be false. The District Court denied the motion to dismiss and granted the bill of particulars with respect to the “federal investigation or matter under the jurisdiction” of the United States. The court denied the request with respect to the specific statements or reports being charged, concluding that the indictment was sufficiently specific. The government responded by informing Nestor that the matter within the FBI's jurisdiction was the racially motivated killing. Following a jury trial, defendant Nester was found guilty of the single count of falsifying documents and defendant Moyer of a single count of false statements.

On appeal, Nestor asserted that the district court erred in denying (in part) the bill of particulars with respect to the falsifying documents count, failing to dismiss the count as duplicitous, and failing to enforce the bill of particulars it did order. The Circuit disagreed, first concluding that the indictment was sufficiently detailed such that the bill of particulars was unnecessary. In addition to setting forth the elements of the statute, the indictment, explained that the falsified documents were “official police reports” created between July 12, 2008, and March 30, 2009, and incorporated further specific details outlined in the conspiracy count. The indictment thus met the standard of being concise and containing “essential facts,” even if it did not identify every alleged false fact or omission. The Court also rejected Nestor’s claim that the district court failed to properly enforce the portion of the bill of particulars it did order, regarding the agency and the matter within federal jurisdiction. The government’s response – that “the matter within the jurisdiction of the [FBI was] the racially motivated killing of” the victim, Ramirez – was not inadequate and failure to cite the specific statute was of “no consequence.”

The Court next held that the count was not duplicitous (joining of multiple offenses in a single count). It held that the allowable unit of prosecution under § 1519, which charges in part: “Whoever knowingly alters, . . . falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct . . .” is controlled by the use of the terms “any”and “record,” which can fairly signify multiple statements or reports. The Court also rejected Nestor’s claim that the juror’s may have relied on different acts, as the count read to charge a single scheme.

The Court next rejected Nestor’s sufficiency and vagueness claims, declining to read a knowledge element into the matter being within the jurisdiction of the FBI, or any requirement of “contemplation of” or a nexus to a specific investigation.

Finally, the Court rejected defendant Moyer’s sufficiency challenge to his material false statement conviction, which was based on statements to the FBI falsely indicating he had been told by a witness of another person with a gun (not the teens invovled) alleged to be present at the incident and that the same witness had not identified anyone involved in the assault.

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