USA v . DeLeon 06CR218-1-JD 1/5/07
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
United States of America
v. N o . 06-cr-218-1-JD
Opinion N o . 2007 DNH 003
Danilo DeLeon
O R D E R
Defendant Danilo DeLeon was charged with, inter alia, aiding
and abetting the sale of drug paraphernalia and the attempted
distribution of controlled substances for his alleged
participation in an operation to manufacture and sell hidden
storage compartments designed for smuggling drugs in motor
vehicles. He now moves the court to order the government to file
a bill of particulars identifying specifically the persons whom
the government alleges DeLeon aided and abetted. The government
objects.
Count four of the superceding indictment alleges that DeLeon
“did knowingly aid and abet the sale o f , and the offer to sell
drug paraphernalia, to wit: hidden motor vehicle storage
compartments, which were primarily intended and designed for use
in concealing controlled substances, and which the defendant knew
were likely to be used for such purpose,” in violation of 21
U.S.C. § 863(a)(1), and
18 U.S.C. § 2 . Count five alleges that
DeLeon, along with three co-defendants, “did knowingly,
intentionally and unlawfully aid and abet the attempted
distribution of controlled substances by the construction of
hidden compartments in motor vehicles . . . ,” in violation of
21
U.S.C. §§ 841(a)(1), 846, and
18 U.S.C. § 2. 1
DeLeon points out that the superceding indictment is silent
as to the person or persons whom he allegedly aided and abetted -
- i.e., the principals who allegedly violated the underlying
statutory provisions. For the government to succeed on counts
four and five, DeLeon argues that it must prove that a principal
committed the underlying offense and that DeLeon “consciously
shared the principal’s knowledge of the underlying criminal act,
and intended to help the principal.” United States v . Spinney,
65 F.3d 2 3 1 , 235 (1st Cir. 1995) (internal quotation marks
omitted). DeLeon argues that, absent information as to the
identity of the alleged principals, he cannot adequately prepare
for trial on those counts.
The government’s objection reveals that DeLeon was ensnared
in a Drug Enforcement Administration (“DEA”) undercover
investigation. According to the government, undercover
1
Counts one and two, which are not subject to DeLeon’s
present motion, charge him with two separate conspiracies (over
different time frames) to sell drug paraphernalia (i.e., the
hidden motor vehicle storage compartments).
2
confidential informants posed as interested buyers of the hidden
compartments. DeLeon introduced the informants to his co-defendants, whom he stated would construct the compartments. The
government also alleges that DeLeon set the price and accepted
cash payments for the compartments, acknowledged that the
compartments were intended for drug smuggling, personally
transported two vehicles from Salem, New Hampshire, to his garage
in Lawrence, Massachusetts, for the purpose of installing
compartments, and demonstrated how a hidden compartment could be
accessed.
The government argues that DeLeon’s defense preparation
should not be hampered because he has been provided with ample
discovery. The government represents that it has provided DeLeon
with “over 125 pages of discovery including all DEA-6 reports
concerning meetings with the defendants and agent surveillance,
as well as confidential informant debriefing reports detailing
the substance of meetings between DeLeon (and his co-defendants)
and the informants.” Moreover, DeLeon and his co-defendants
“have been provided with tape recordings of their actual
conversations with the cooperating informants to the extent
exigent.”2 Thus, the government argues, DeLeon will not be
2
The government notes that the conversations are in Spanish
and therefore necessitate translation before English transcripts
3
prejudiced in preparing for trial because the discovery that has
been provided to him “sets out in detail the identities of the
individuals the government has determined to be involved in the
scheme and the nature of their relationship over the time period
specified in the indictment.”
DeLeon’s argument overemphasizes the lack of information he
seeks in the superceding indictment. Although the function of a
bill of particulars is “to provide the defendant with necessary
details of the charges against him to enable him to prepare his
defense, to avoid surprise [at] trial, and to protect against
double jeopardy,” United States v . Abreu, 952 F.2d 1458, 1469
(1st Cir. 1992), the sufficiency vel non of the indictment “is
irrelevant in determining whether to order a bill of
particulars.” 1 Charles Alan Wright, Federal Practice and
Procedure § 129 (3d ed. 1999). The appropriate remedy for an
insufficient indictment is a motion to dismiss the indictment.
See United States v . Murphy,
762 F.2d 1151, 1154 (1st Cir. 1985).
DeLeon has neither moved nor argued that the court should dismiss
counts four and five of the superceding indictment.
The key inquiry in the present circumstance is whether, as a
practical matter, absent “a more detailed specification,” DeLeon
can be provided. The government represents that those
transcripts will be forthcoming “in the near future.”
4
will be disabled in his trial preparation or might be surprised
at trial. United States v . Sepulveda, 15 F.3d 1161, 1192 (1st
Cir. 1993). 3 Given the government’s representations as to the
extensive discovery DeLeon has received, it does not appear that
his defense preparation will be so disabled. See Sepulveda,
15
F.3d at 1193 (affirming the denial of a bill of particulars where
the defendants “enjoyed the benefits of modified open-file
discovery, i.e., automatic discovery that encompassed all
relevant data except Jencks Act material related to witnesses not
employed in law enforcement”); United States v . Cannino,
949 F.2d
928, 949 (7th Cir. 1991) (“[A] bill of particulars is not
required when information necessary for a defendant’s defense can
be obtained through ‘some other satisfactory form.’”) (quoting
Wright, Federal Practice and Procedure § 129 (2d ed. 1982)).
Because DeLeon has not contested the government’s
representations regarding discovery, or claimed that the
discovery was nonetheless inadequate, the court rejects DeLeon’s
claim that a bill of particulars is necessary for his trial
preparation. If DeLeon contests the government’s representations
as to discovery, he may re-file a motion for a bill of
particulars specifically attesting to the inadequacy of the
3
DeLeon has not argued that there is a potential double
jeopardy problem in this case.
5
government’s discovery and explaining why a bill of particulars
is necessary for his preparation. DeLeon is warned, however,
that the court will not entertain “late motions for the purpose
of delaying trial.” Fed. R. Crim. P. 7(f) advisory committee
notes.
Conclusion
DeLeon’s motion for a bill of particulars (document n o . 45)
is denied without prejudice.
SO ORDERED.
Foseph A. DiClerico, Jr.
United States District Judge
January 5, 2007
cc: Sandra F. Bloomenthal, Esquire
Donald A. Kennedy, Esquire
Jeffrey S. Levin, Esquire
Richard F. Monteith, Jr., Esquire
Brian T. Tucker, Esquire
Robert J. Veiga, Esquire
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