No. A05-041 CR (RRB), Docket No. 16-2.
June 29, 2005
ORDER REGARDING BILL OF PARTICULARS
Defendant Shane C. Twigg has moved in the alternative to his motion to dismiss for an order requiring the government to file a bill of particulars to provide discovery regarding the exact circumstances of the allegations contained in Count 1 of the indictment. Docket No. 16. The motion is opposed by the government. Docket No. 17. Twigg acknowledges that the government has provided discovery about its investigation namely, that while in the process of being handcuffed Twigg pushed a law enforcement officer and ran out of the room. The discovery further indicates that a struggle ensued resulting in both men breaking through a closet door. Mr. Twigg requests the government to state whether it is contending that the alleged "push" constituted an assault resulting in injuries or if it constituted resisting an officer while the officer was in the performance of his official duties.
In a report and recommendation the magistrate judge has recommended that the motion to dismiss Count 1 be denied.
A bill of particulars pursuant to Federal Criminal Rule 7(f) is designed to inform the defendant of the exact nature of the charge against him with sufficient precision to enable him to prepare for trial, to avoid the danger of surprise at trial and to enable him to plead his acquittal of conviction in bar to another prosecution for the same offense. The defendant is entitled to a bill of particulars when the indictment itself is "too vague, and indefinite for such purpose(s)." See United States v. Giese, 597 F.2d 1170, 1180 (9th Cir. 1979). As discussed in the recommendation addressing the motion to dismiss Count 1, the court concludes that Count 1 is not so vague or indefinite to precipitate the dangers against which the bill of particulars protects. This is particularly so in light of the discovery already provided to the defendant to enable him to prepare his defense. Because Twigg's only requested purpose for a bill of particulars would be to obtain an order directing the government to state (and bind) it to a single theory of prosecution the request for a bill of particulars must be denied.
The alternative means of committing the offense alleged in Count 1 substantially tracks the language of 18 U.S.C. § 111(a) and constitutes but a single offense. Section 111 of Title 18 provides a person of ordinary intelligence fair notice of what conduct is proscribed; it is not unconstitutionally vague, indefinite or ambiguous. United States v. Linn, 438 F.2d 456 (10th Cir. 1971). The element of "force" contained in § 111 may be satisfied by proof of actual physical contact, or by proof of such threat or display of physical aggression toward the officer such that it inspires fear of pain, bodily harm or death.United States v. Schrader, 10 F.3rd 1345 (8th Cir. 1993). The intent to assault need not be the intent to assault a federal officer. The assailant need not be aware that his victim was a federal officer. United States v. Feola, 420 U.S. 671 (1975);United States v. Hohman, 825 F.2d 1363 (9th Cir. 1987). The defendant is not entitled to limit the government to a single theory of proof since the statute provides for alternative means by which the offense may be committed. Accordingly, the motion for bill of particulars is hereby DENIED.