As highlighted in this prior post, in September 2020 the DOJ announced that Javier Aguilar (a trader at the U.S. subsidiary of Vitol Inc.) was criminally charged for “his alleged participation in a five-year international bribery and money laundering scheme involving corrupt payments to Ecuadorian officials.”
With discovery ongoing in the case and the trial date uncertain due to COVID-19, in November 2020 Aguilar filed a motion for a bill of particulars. Generally speaking, a bill of particulars is a request by a criminal defendant for more detailed information about the criminal charges beyond those alleged in the actual charging document.
As highlighted below, recently Judge Eric Vitaliano (E.D.N.Y.) denied the motion for a bill of particulars.
As to the relevant legal standard, Judge Vitaliano stated (internal citations omitted):
“The [trial] court may direct the government to file a bill of particulars,” see Fed. R. Crim. P. 7(f); a decision that rests within its sound discretion. Such an order is appropriate where needed “to apprise [the defendant] of the charges with sufficient precision so as to enable him to ‘prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense.’” Thus, “[a] bill of particulars is required ‘only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused.’
Importantly, an order directing the government to file a bill of particulars is not necessary “where the government has made sufficient disclosures concerning its evidence and witnesses by other means.” For this reason, “the court must examine the totality of the information available to the defendant—through the indictment, affirmations, and general pre-trial discovery.” “Moreover, a bill of particulars is not to be used as a discovery device to seek and compel disclosure of the Government’s evidence prior to trial.” “The ultimate test in determining whether a bill of particulars is appropriate is whether the information is necessary, not whether it is helpful to the defendant.” When the sufficiency of disclosure is disputed, a defendant bears the burden of showing necessity, as well as any prejudice that will result from the denial of his request.”
Judge Vitaliano then observed:
“Defendant’s demand for a 17-part bill of particulars is, seemingly, an indiscriminate broadside against nearly every aspect of the government’s indictment and disclosures—as the motion tells it, Aguilar professes to be critically unaware of the “who”, “what”, “when” and “how” of the case. To obtain a bill of particulars on such a wide swath of information is a tall order, as “courts generally deny requests for bills of particulars concerning the ‘wheres, when, and with whoms’ of the crime.” Defendant argues that his case stands out from many knee-jerk demands for bills of particulars due to its complexity, as evidenced by the nearly 600,000 pages of documents produced by the government. Flipping the government’s shield of generous discovery into a sword, Aguilar argues that “the government cannot rely on the sheer quantity of the documents produced during discovery as an automatic substitute for identifying the charges with the necessary specificity.”
At times, though, the difference between a sword and a shield may not be apparent. Courts, therefore, must be on guard to ensure that a defendant, by a demand for a bill of particulars, does not “use the vastness or complexity of the alleged conspiracy and its attendant documentary evidence as a sword against the government when the indictment, discovery, and other information provided by the government adequately notify [defendant] of the charges against [him].” Keeping in mind the need to maintain this balance, each categorical group of particulars demanded by Aguilar will be separately examined.”
As to Aguilar’s request for the identity of co-conspirators and unnamed entities, the judge did note that certain factors of the relevant multi-factor analysis were in Aguilar’s favor, but nevertheless denied the request because the government argued that “its investigation into the alleged bribery scheme is ongoing and that there is a risk that unnamed co-conspirators located abroad may evade arrest.” The judge further noted:
“in light of the professed potential of harm to the government’s investigation and apprehension of individuals involved in the alleged bribery scheme, [the request] is denied. Simply put, Aguilar has not met his burden to show that his countervailing desire for this information rises to the level of necessity …”.
As to Aguilar’s request “for the identities and roles, positions or titles of the foreign officials who were allegedly bribed,” Judge Vitaliano wrote:
“The government also states in its briefing that it has separately provided defendant with the actual identities of these individuals. Defendant nonetheless maintains that this is insufficient, as the government has still not provided those officials’ duties or responsibilities.
Clearly, between the government’s description of these individuals’ past roles and its provision of their actual identities, defendant has the necessary information to understand the nature of the charges against him as they pertain to these foreign officials and to build his defense. Defendant may uncover any additional desired information about these individuals through his review of document productions or his own investigation, but “a bill of particulars is not a general investigative tool and this particularization is not required.”
As to Aguilar’s “ask for a grab bag of information about the conspiracy, including requests concerning the date and content of alleged statements, recordings, and overt acts,” the judge concluded that “Aguilar’s grasp for the government’s investigatory file far exceeds permissible bounds, and none of these particulars are needed to “apprise him of the essential facts of the crimes for which he has been charged.”
As to Aguilar’s request for “details concerning allegedly corrupt payments made to the shell companies and consulting companies and, in turn, to foreign officials,” the judge did note that “requests for bills of particulars concerning allegedly corrupt or fraudulent payments are treated with greater solicitude by courts in this Circuit due to the unfair burden that can be shifted to a defendant by forcing him to determine which payment, among many, the government will seek to prove at trial.” Nevertheless, the judge concluded:
“[T]hat the government contends here that all payments directed by defendant and his co-conspirators to the Cayman Islands consulting company were for the corrupt purpose of bribing the Ecuadorian officials. Thus, the thousands of pages of records concerning these transactions are not a riddle for defendant to solve, but rather a detailed narrative of the allegedly corrupt payments. In other words, Aguilar has not been tasked with finding a “needle in a haystack,” but has rather been given a stack of needles.”
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