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United States v. Perkins

July 20, 2006

UNITED STATES OF AMERICA
v.
CRAIG PERKINS



The opinion of the court was delivered by: S. Arthur Spiegel United States Senior District Judge

OPINION

This matter is before the Court on Defendant's Motion to Examine Exculpatory Evidence and Mitigatory Material (doc. 10), The United States' Response (doc. 17), Defendant's Motion for Bill of Particulars (doc. 13), the United States' Response (doc. 16), Defendant's Motion for Production of Law Enforcement Interview Notes (doc. 14), the United States' Response (doc. 19), Defendant's Motion to Preserve Investigative Notes and Tapes (doc. 15), and the United States' Response (doc. 18). For the reasons stated herein, the Court DENIES all four of Defendant's Motions (docs. 10, 13, 14, 15).

I. Background

Defendant Craig Perkins is charged with conspiring to defraud Provident Bank in violation of 18 U.S.C. § 1344 (doc. 1). Defendant allegedly conspired with David Oliverio, a vice-president with Provident Bank, to obtain loans with the knowledge that at least a portion of the loan proceeds would not be used for their stated purpose (Id.). The alleged scheme involved Defendant borrowing money for his many businesses from Provident Bank, and subsequently transferring the loan proceeds to other accounts unrelated to the businesses for which the loans were secured (Id.). Defendant was indicted on May 3, 2006 (Id.).

II. Discussion

A. Motion to Examine Exculpatory and Mitigatory Material

Defendant moved for the Court to order the United States to turn over all exculpatory evidence known to them at this time (doc. 10). Defendant contends that the United States' failure to provide him with any exculpatory evidence in its possession is a violation of his due process rights (Id. citing Brady v. Maryland 373 U.S. 83, 87 (1963)). However, "Brady holds only that the suppression at trial of evidence favorable to the accused is a denial of due process." United States v. Conder 423 F.2d 904, 911 (6th Cir. 1970). The United States cannot be expected to determine which evidence will be favorable to the accused prior to trial without any knowledge of the accused's planned defense. Id. The Sixth Circuit has specifically ruled that Brady does not cover pre-trial discovery. United States v. Moore, 439 F.2d 1107, 1108 (6th Cir. 1971). Accordingly, this Court concludes that the United States is under no obligation to provide Defendant with all exculpatory evidence at this time.

B. Bill of Particulars

Defendant requests that the Court order the United States to produce a Bill of Particulars detailing specific evidence the government has compiled in this case (doc. 13). Defendant claims that the Indictment is too vague and that he needs the information requested in order to completely understand the charges against him (Id.). Defendant contends that a Bill of Particulars can be used to get sufficiently detailed information about the charges pending against him in order to prepare for trial. (Id. citing United States v. Bortnovsky, 820 F.2d 572 (2d Cir. 1987).

The trial court has broad discretion when deciding whether to grant a motion for a Bill of Particulars. Will v. United States, 389 U.S. 90, 98-99 (1967). But, a Bill of Particulars is not meant to be used to get disclosure of all evidence held by the government before trial. United States v. Salisbury, 983 F.2d 1369, 1375 (6th Cir. 1993). The list of overt acts in the Indictment is sufficient to make Defendant aware of the charges against him (doc. 1). The Indictment contains dates of the acts, the nature of the acts, the amounts of the loans in question, and the crimes charged against Defendant (Id.). Furthermore, there is no requirement that the government furnish a Bill of Particulars containing every overt act it intends to present at trial. United States v. Carroll, 510 F.2d 507, 509 (2d Cir. 1975). Therefore, the Court denies Defendant's Motion for a Bill of Particulars (doc. 13).

C. Production of Law Enforcement Interview Notes

Defendant requests that this Court order the United States to turn over all notes containing interviews of individuals who will not be called upon to testify conducted by state and federal law enforcement agencies in connection with this case (doc. 14). Defendant claims that he is entitled to the information contained in the notes of interviews of individuals the government has decided to not call as witnesses (Id. citing United States v. Perkins, 383 F.Supp. 922, 930 (N.D. Ohio 1974)). While the court in Perkins did initially state that the government was required to turn over the reports of interviews with witnesses it did not intend to call as witnesses, upon reconsideration, the court said that the government is not required to turn over those reports until the conclusion of its case-in-chief. 383 F.Supp. at 930, 932. Accordingly, this Court declines to order the United States to turn over the interview notes at this time.

D. Preservation of Investigative Notes and Tapes

Defendant requests that this Court order the United States to instruct any individuals who may be witnesses in this case or any government officials involved in this investigation to preserve all notes, memoranda, and tape recordings relating to this investigation (doc. 15). Defendant claims that these materials are discoverable under the Jencks Act (Id. citing United States v. Ammar, 714 F.2d 238, 259 (3d Cir. 1983). While, the United States claims that these notes are not covered under the Jencks Act, the United States Attorney's Office has indicated that it will request that ...


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