NORMAN L. VROMAN Lawyer c/o General Delivery Hopland, California IN PROPRIA PERSONA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA ) No. 91 0213 EFL ) ) MOTION FOR BILL OF ) PARTICULARS PLAINTIFF, ) ) v. ) ) NORMAN LEON VROMAN ) ) DEFENDANT. ) ________________________________) MOTION FOR BILL OF PARTICULARS Because the indictment in this matter is totally devoid of any reference to Title 26, IRC setting forth the statute, code or regulation imposing a requirement to file a return or imposing a tax liability upon the defendant, and because the defense in this case rests in a large part upon the Plaintiff's failure to comply with Title 44 U.S.C. 3501 et seq and Title 5 U.S.C. 552 et seq, defendant MOVES THIS COURT for an order directing the prosecution to file and serve a written Bill of Particulars, stating the following so that the defendant may adequately prepare his defense: Motion for Bill of Particulars: Page 1 of 9 1. Counts I - V in the indictment allege that the defendant failed to make an income tax return to the Director of District Director of the Internal Revenue Service (IRS). With reference to each such count the defendant requests the following information: a. Cite the specific Return which the defendant is alleged to have failed to make; b. Cite the specific and relevant authority that would authorize the Director or District Director of the IRS to require the defendant to make a return; c. Cite the Office of Management and Budget (OMB) Clearance Number assigned to the Return form and instructions for completing said form as required by Title 44 USCA, sections 3501 - 3520 inclusive; d. If the government is relying on IRC section 6012, cite the date of publication of the returns, statements and lists in the Federal Register as required by Title 5 USCA, section 522. e. With respect to the Director or District Director of the Internal Revenue Service, state with particularity the Division to which said Director or District Director of the Internal Revenue are assigned; 2. Counts II - V of the indictment allege that the defendant received "Gross Income." With reference to such counts, the defendant requests the following information: a. State in concise and particular detail the taxable charged activity in which it is alleged that the defendant was engaged; Motion for Bill of Particulars: Page 2 of 9 b. The cite to the specific federal tax Regulation that levies a tax upon the activities in which the defendant was engaged; 3. Counts II - V of the indictment allege that the defendant was obligated to state specifically the items of his gross income and any deductions and credits to which he was entitled. With reference to each such count, the defendant requests the following information: a. The cite of the federal tax Regulation that expressly entitles persons such as the defendant to earned income deductions and credits. 4. Counts I - V of the indictment allege that the defendant was "required by law" to make a return. Cite the specific Code, Statute or Regulation that requires the making of such a return. 5. Count I of the indictment alleges that the defendant falsely claimed that he was exempt from income tax withholding requirements. With reference to that allegation, defendant requests the following information: a. Cite the Code, Statute or Regulation which imposed a income tax withholding requirement upon the defendant. WHEREFORE the defendant moves the court to grant this motion. The defendant further respectfully requests the court, if and to the extent it exercises its discretion in denying any part or aspect of the foregoing requests, to indicate in terms that appear on the record, the basis and the reason or reasons for exercising its discretion in so denying said requests. United States v. Wells (7th Cir., 1967) 387 F.2d 807. Motion for Bill of Particulars: Page 3 of 9 POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR BILL OF PARTICULARS I. DEFENDANT WILL BE UNABLE TO ADEQUATELY DEFEND AGAINST THE INSTANT CHARGES WITHOUT FURTHER PARTICULARIZING OF ALLEGATIONS Rule 7(f) of the Federal Rules of Criminal Procedure provides that the court may direct the filing of a Bill of Particulars upon a motion by the defendant. The functions of such a motion are to provide a defendant with information about the details of the charges necessary to the preparation of the defense, avoid prejudicial surprise at trial, and protect against a second prosecution based upon the same set of facts. Yeargain v. United States 314 F.2d 881, 882 (9th Cir.1963); United States v. Bearden 423 F.2d 805, 8098 (5th Cir.1970), cert. denied, 400 U.S. 836. As originally promulgated, Rule 7(f) required a showing of cause before a Bill would lie. That requirement was stricken by the amendment of 1966, which was expressly designed "to encourage a more liberal attitude by the courts towards bills of particulars." See Rule 7(f), Advisory Committee note to the 1966 amendment. The granting, or refusal to grant, a Bill of Particulars is a matter within the discretion of the trial court. United States v. Dreitzler 572 F.2d 539, 553 (9th Motion for Bill of Particulars: Page 4 of 9 Cir. 1978). The test in ruling on such a motion is whether deprivation of the information sought will render the defendant unable to prepare a defense, avoid surprise, or avoid later risking double jeopardy. United States v. Addonizio 451 F.2d 49, 63-64 (3d Cir.1971), cert.den. 405 U.S. 936. A defendant should not be deprived of information needed to prepare a defense, simply because the information might be used by the government as evidence. United States v. Crisona 271 F.2d 156 (S.D.N.Y.1967). Moreover, a motion for a Bill of Particulars cannot be denied on the theory a defendant "knows" what he or she "did." Such a ruling effectively stands the presumption of innocence on its head, in assuming the defendant has knowledge of his own acts, which were in fact "guilty." See, United States v. Tanner 279 F.Supp. 683, 695-696 (D.Del.1971). Although a defendant may not use a Bill of Particulars to ascertain all of the evidence which the government intends to produce, a defendant is entitled to know the theory of the government's case as to each count. Yeargain v. United States, supra, 314 F.2d at 882. As noted in the Opinion of Judge Whittaker, cited with approval in the advisory committee note to the 1966 amendment to Rule 7(f): It seems quite clear that where charges in an indictment are so general that they do not sufficiently advise the defendant of the specific acts with which he is charged, a bill of particulars should be ordered. United States v. Smith 16 F.R.D. 372, 375 (W.D.Mo.1954). Motion for Bill of Particulars: Page 5 of 9 Moreover, because a Bill of Particulars has a fundamental connection to the Sixth Amendment right to defend, doubt must be resolved in favor of disclosure and the public interest in giving the accused the right to mount a defense. United States v. Tanner, supra, 279 F.Supp. at 474; United States v. Manetti, supra, 323 F.Supp. at 696. Notably, prejudice to the defendant has been defined by Justice Rehnquist to be the "impairment of the ability to mount a defense." United States v. Valenzuela-Bernal 458 U.S. 858, 869 (1982). The instant Indictment contains the very form of generalized charges against which a Bill of Particulars is designed to protect. Without further particularization, defendant Brandon will not be able to fully exercise his Sixth Amendment rights to a fair trial. II. THE INDICTMENT HEREIN DOES NOT ADEQUATELY APPRISE THE DEFENDANT OF THE NATURE AND SCOPE OF THE CHARGES AGAINST HIM. The charges in the Indictment herein are glaringly void of requisite information concerning the specific acts involved. The charges in no way enable the preparation of a defense. All information requested herein is essential to remedy the Indictment's deficiencies in allowing defendant to prepare a defense. In evaluating any defendant's motion for a Bill of Particulars, the court is called upon to make a "particularized decision" which takes into account the amount of facts stated in the charging document before the court. United States v. Thevis 474 F.Supp. 117, 123 (N.D.Ga.1979); United States v. Barket 380 F.Supp. 1018, 1021 (W.D.Mo.1974). Motion for Bill of Particulars: Page 6 of 9 It is well-established that a defendant should not be deprived of a Bill of Particulars simply because he requests information which might be used by the government as evidence. United States v. Crisona, supra, 271 F.Supp. at 156. III. THE SIXTH AMENDMENT MANDATES DISCLOSURE OF THE FACTUAL INFORMATION SOUGHT HEREIN. A Bill of Particulars, unlike most criminal discovery devices, directly implicates the Sixth Amendment's guarantee of the right to make a vigorous and prepared defense in a criminal case. See, United States v. Tanner, supra, 279 F.Supp. at 473-74. When the charging document lacks sufficient particularity to allow a defendant to prepare a defense, as here, the defendant's ability to confront adverse witnesses and to use compulsory process is seriously inhibited. Obviously, due process requires that an accused receive the opportunity to defend, including being able to examine witnesses, offer evidence in defense, and be represented by a fully prepared trial counsel. See, In re Oliver 333 U.S. 257 (1948). Denial of the right to defend is an error of constitutional magnitude, requiring proof that the error involved was harmless beyond a reasonable doubt. Chapman v. California 386 U.S. 18, 23-24 (1967). Motion for Bill of Particulars: Page 7 of 9 Therefore, any judicial doubt concerning defendant's request for Bill of Particulars must be resolved in favor of disclosure, due to the public interest in giving the accused a right to mount a defense. United States v. Manetti, supra, 323 F.Supp. at 696. Impairment of the ability to mount a defense constitutes prejudice. United States v. Valenzuela- Bernal, supra, 458 U.S. at 869. CONCLUSION Any attempt to defend against the charges in the Indictment without further particularization will result in manifest prejudice to defendant. For the reasons stated above, this court is respectfully requested to grant this motion for a Bill of Particulars in order to avoid that prejudice and a violation of defendant's constitutional right to a fair trial. Dated: Respectfully submitted, /s/ Norman Vroman ____________________ NORMAN L. VROMAN In Propria Persona Motion for Bill of Particulars: Page 8 of 9 CERTIFICATE OF SERVICE It is hereby certified that a true and correct copy of the foregoing was hand delivered to the United States Attorney, at his respective office, on this 16th day of July, 1991. /s/ Norman Vroman ____________________ NORMAN L. VROMAN Motion for Bill of Particulars: Page 9 of 9 # # #
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U.S.A. v. Vroman