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United States v. Spurlin

United States District Court, N.D. Georgia, Atlanta Division

February 27, 2018

UNITED STATES OF AMERICA
v.
JUAN SPURLIN

          ORDER AND FINAL REPORT AND RECOMMENDATION

          JOHN K. LARKINS III UNITED STATES MAGISTRATE JUDGE.

         Pending before the Court are Defendant Juan Spurlin's Motion for Bill of Particulars [Doc. 38] and Motion to Dismiss for Pre-Indictment Delay [Doc. 39]. The government opposes the motions [Doc. 49 (response to motion for bill of particulars); Doc. 48 (response to motion to dismiss)], and Spurlin has filed replies [Doc. 55 (reply in support of motion for bill of particulars); Doc. 54 (reply in support of motion to dismiss)]. For the following reasons, it is ORDERED that Spurlin's motion for a bill of particulars be DENIED, and it is RECOMMENDED that his motion to dismiss be DENIED.

         I. MOTION FOR BILL OF PARTICULARS

         On October 27, 2015, a federal grand jury sitting in the Northern District of Georgia returned a Second Superseding Indictment charging Spurlin with conspiracy to commit wire fraud (Count One) and four counts of wire fraud (Counts Six, Seven, Eight, and Nine). [Doc. 12.] Spurlin was arrested on those charges on October 27, 2017. [Doc. 34.]

         According to the Second Superseding Indictment, beginning in September 2009 and continuing until at least February 2011, Spurlin and others established merchant services accounts using personal identifying information of victims and used credit cards and stolen credit cards to make payments to the fictitious merchant services accounts. [Doc. 12 at 2-3.] Those funds were then allegedly routed to bank accounts under the control of members of the conspiracy, including Spurlin. [Id. at 3.] The indictment specifically identifies four transactions that occurred on November 1 and 3, 2010, in which Spurlin, allegedly aided and abetted by another member of the alleged conspiracy, caused funds to be transferred from a merchant services company to a Bank of America account held by Spurlin. [Id. at 6.] The indictment includes the date and amount of each transaction, the merchant services account at issue, the individuals allegedly involved, and the Bank of America account into which the funds were transferred. [Id.]

         Spurlin requests that with respect to the conspiracy count (Count One), the government “state with specificity what Mr. Spurlin's knowledge or participation was regarding each of the alleged offenses, and identify any facts or allegations linking him to those offenses, including: (A) wire fraud; (B) financial institution fraud; (C) fraud and related activity in connection with electronic transmissions of money; [and] (D) conspiring and agreeing with individuals to obtain money or access to money.” [Doc. 38 at 2.] Spurlin also requests the government “identify how and when Mr. Spurlin committed any act and/or agreed with a conspirator in the conduct or furtherance of the affairs of the enterprise to commit any act, and identify any evidence supporting those allegations including: (A) obtaining money from financial institutions; (B) establishing merchant accounts; [and] (C) devising a scheme to defraud financial institutions.” [Id. at 2-3.] Finally, Spurlin requests the government “identify specifically how Mr. Spurlin aided and abetted co-defendants, and identify any evidence specifically relating to those acts committed by Mr. Spurlin including: (A) obtaining money from financial institutions; (B) establishing merchant accounts; [and] (C) devising a scheme to defraud financial institutions.” [Id. at 3.]

         The government responds that Spurlin's motion for a bill of particulars is moot because the government has provided all “requested information, ” including information not otherwise discoverable under Federal Rule of Criminal Procedure 16. [Doc. 49 at 1.] Specifically, the government states that it “allowed defense counsel to inspect all bank documents and other tangible evidence in its control, ” as well as summary charts and tables that the government created. [Id. at 2.] The government represents that those documents show the exact bank accounts that Spurlin allegedly used, the dates of specific deposits and withdrawals, the credit card processor that was used, and “other information relevant to the government's case.” [Id.] Counsel for the government, FBI agents, and IRS agents also met with defense counsel to discuss the government's theory of the case. [Id.]

         In reply, Spurlin states that his counsel requested copies of certain materials that the government made available, but despite the government's agreement to provide copies of the materials to counsel, counsel has still not received the requested material. [Doc. 55 at 2.] Spurlin therefore reiterates his requests set forth in his motion. [Id.]

         Federal Rule of Criminal Procedure 7(f) explains that:

The court may direct the government to file a bill of particulars. The defendant may move for a bill of particulars before or within 14 days after arraignment or at a later time if the court permits. The government may amend a bill of particulars subject to such conditions as justice requires.

         The purpose of a bill of particulars is to inform the defendant of the charge against him with sufficient precision to allow him to prepare his defense, to minimize surprise at trial, and to enable him to plead double jeopardy in the event of a later prosecution for the same offense.” United States v. Davis, 854 F.3d 1276, 1293 (11th Cir. 2017) (citation omitted). A bill of particulars may not be used for the purpose of obtaining detailed disclosure of the government's case or evidence in advance of trial. Id. (citing United States v. Perez, 489 F.2d 51, 70-71 (5th Cir. 1973)). “Nor is the defendant entitled to a bill of particulars with respect to information which is already available through other sources such as the indictment or discovery and inspection.” United States v. Rosenthal, 793 F.2d 1214, 1227 (11th Cir. 1986), modified on other grounds by, 801 F.2d 378 (11th Cir. 1986); see also United States v. Martell, 906 F.2d 555, 558 (11th Cir. 1990).

         The indictment here sets forth sufficient detail to put Spurlin on notice of the nature of the charges pending against him, in that it provides a detailed description of the matter and means by which he and other co-conspirators allegedly carried out the alleged scheme, when specific transactions occurred, who was involved in the transactions, the precise amount of the transactions, which merchant accounts were involved, the bank accounts into which funds were transferred, and the holders of the recipient bank accounts. [See Doc. 12 at 3-6.] The additional information that Spurlin requests is evidentiary detail to which he is not entitled by way of a bill of particulars. “‘[T]he view virtually universally held is that the defendant is not entitled to particulars regarding the formation of the conspiracy; the exact time and place of overt acts and the names and addresses of persons present; the details concerning how and when the conspiracy was formed or when each participant entered the conspiracy.'” United States v. Abdi, No. 1:13-CR-00484-JEC-RGV, 2014 WL 3828165, at *8 (N.D.Ga. Aug. 4, 2014) (quoting United States v. Upton, 856 F.Supp. 727, 753 (E.D.N.Y. 1994)). Likewise, Spurlin is not entitled to an accounting of every additional overt act done in furtherance of the conspiracy. United States v. Goldenshtein, No. 1:10-CR-00323-TCB, 2011 WL 1321573, at *13 (N.D.Ga. Feb. 22, 2011) (“A bill of particulars cannot be used to ferret out additional overt acts not listed in the indictment, as long as the indictment alleges the required number of overt acts under the statute being charged.”) (citing United States v. Rosenthal, 793 F.2d 1214, 1227 (11th Cir. 1986)).

         It also appears that much of the detail concerning the government's case has been made available to defense counsel-including through Rule 16 discovery and other information, demonstrative aids, and a “reverse proffer.” Indeed, it appears that Spurlin has had access not only to the government's entire file, but also to the agents investigating this case. That said, the Court is troubled that defense counsel has apparently not received copies of documents that she selected during her review sessions and which the government agreed to provide. [See Doc. 55 at 2.] The Court therefore DIRECTS the government to provide the requested materials within five (5) business days of the entry of this order, if such materials have not yet been provided.

         In sum, the Court finds that Spurlin has failed to carry his burden to show that additional details are necessary to enable him to prepare his defense, avoid surprise, or plead double jeopardy in a subsequent proceeding. See United States v. Giffen, 379 F.Supp.2d 337, 346 (S.D.N.Y. 2004) (citation omitted) (“The ultimate test in deciding whether a bill of particulars should be ordered is whether the information sought is necessary, as opposed ...


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