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United States v. Gilbert

United States District Court, N.D. Alabama, Southern Division

May 4, 2018




         Before the court are Steven McKinney's and David Lynn Roberson's respective motions for a bill of particulars, docs. 56 and 62, and McKinney's Motion for Identification of the Specific Documents which the Government Expects to Introduce in its Case-In-Chief at Trial, doc. 63, which the court construes as a motion for a bill of particulars. The other defendants have adopted these motions. In a nutshell, the Defendants have requested that the Government identify and/or specify (1) all unlawful acts, including any “official acts” by Oliver Robinson, comprising the alleged conspiracy; (2) all unindicted co-conspirators and/or aiders and abettors; (3) more particular facts about the alleged agreement between Robinson and the Defendants; (4) the five companies to whom the EPA sent general notice letters, and the five corporations which allegedly contributed money to the Alliance for Jobs and the Economy (“AJE”); (5) the dates and amounts of the invoices sent and payments made under the alleged conspiracy; and (6) all documents that the Government intends to use during its case-in-chief. Docs. 56; 62; 63. The Government opposes these requests. See docs. 75; 76. The court addresses each request below.


         Criminal defendants are not entitled to “generalized discovery, ” United States v. Colson, 662 F.2d 1389, 1391 (11th Cir. 1981), or “a detailed disclosure” of the Government's evidence, Johnson v. United States, 207 F.2d 314, 320 (5th Cir. 1953). However, courts may order the Government to file a bill of particulars where an indictment fails to “set forth specific facts in support of requisite elements of the charged offense, and the information is essential to the defense.” Fed. R. Crim. P. 7(f); United States v. Cole, 755 F.2d 748, 760 (11th Cir. 1985).[1]In effect, a bill of particulars “amplifies the indictment by providing additional information.” United States v. Johnson, 575 F.2d 1347, 1356 (5th Cir. 1978). Unlike discovery, however, a bill of particulars “is not intended to provide the defendant with the fruits of the government's investigation, ” but rather “only that minimum amount of information necessary to permit the defendant to conduct his own investigation.” United States v. Torres, No. 1:06-CR-00351- WSD-LTW, 2008 WL 11380071, at *6 (N.D.Ga. Mar. 20, 2008), report and recommendation adopted, 2008 WL 11380103 (N.D.Ga. Oct. 9, 2008) (emphasis added). The decision to grant a motion for a bill of particulars is committed to the district court's sound discretion. Will v. United States, 389 U.S. 90, 99 (1967); Cole, 755 F.2d at 760 (“We will reverse a district court's refusal to grant a request for a bill of particulars only if it can be shown that the defendant was actually surprised at trial and thereby incurred prejudice to his substantial rights.”).


         The indictment alleges that the Defendants concocted an illegal scheme to pay an Alabama state representative to oppose the EPA's proposals regarding a Superfund site. Doc. 1. In 2014, shortly after the EPA notified five companies that it was investigating their role in pollution around the 35th Avenue Superfund Site and that it was considering adding the site to the National Priorities List[2] and expanding it to include surrounding areas, the Defendants purportedly enlisted then-Alabama state representative Oliver Robinson. Id. In exchange for large monthly payments to his charitable organization, the Oliver Robinson Foundation, Robinson agreed to harness his influence to oppose the EPA's priority designation. Id. To conceal the source and purpose of the money, the Defendants purportedly funneled many of the payments through the AJE, a sham corporation they created. Id. The Government alleges that the Defendants also directed Robinson to perform several “official acts” to oppose the EPA's proposals, including: (1) making public statements to pressure Alabama's state environmental agencies to oppose the designation; (2) meeting with EPA officials and advising that they withdraw their proposal; and (3) voting in a House Rules committee meeting to advance a joint resolution (that Defendant Gilbert had ghost-written) opposing the EPA's proposal. Id. Based on this alleged conduct, the Government charged Roberson, Gilbert, and McKinney with various crimes. See doc. 1.

         III. ANALYSIS

         The Defendants contend that the indictment fails to provide adequate notice of the nature of the charges against them and lacks certain information necessary to prepare their respective defenses. As such, they have moved the court to direct the Government to file a bill of particulars. The court addresses each request below.

         A. The “official acts” that comprise the alleged bribery scheme

         Based on McDonnell v. United States, which clarified the definition of an “official act” under the federal bribery statute, 136 S.Ct. 2355, 2371 (2016), the Defendants argue that the indictment fails to specify “the concrete governmental ‘matter(s)' at issue, and how Mr. Robinson allegedly used the official powers of his office to act ‘on' such matter(s).” Doc. 56 at 7-8. Depriving the Defendants of this information, they argue, would force them “to devote substantial time and energy at trial to determine whether any of the Defendants paid Mr. Robinson” to perform actions that do not qualify as “official acts.” Doc. 56 at 8.

         A review of the indictment shows that it adequately identifies the “official acts” Robinson purportedly performed. As the Government notes, see doc. 76 at 8-10, the indictment alleges that the Defendants paid Robinson in exchange “for using his official position” to do the following:

(1) make a public statement and pressure and advise [state environmental agencies] to take and maintain a position on behalf of the State of Alabama favorable to [the Defendants] in relation to EPA's [proposals]; (2) meet with and advise EPA officials to take a position favorable to [the Defendants] in relation to EPA's [proposals]; and (3) vote as a member of the [House] Rules Committee to [advance] the joint resolution . . . written by defendant[s].

Doc. 1 at 28-29. These purported actions undertaken by Robinson in furtherance of the alleged conspiracy are sufficient to prevent surprise at trial and allow the Defendants to prepare their defense. See Cole, 755 F.2d at 760. Moreover, an indictment is not designed to prove the Government's case; it merely needs to “track[] the statutory language” of the laws the Defendants allegedly violated. See United States v. Martell, 906 F.2d 555, 558 (11th Cir. 1990); Cole, 755 F.2d at 760. Because the indictment here “tracks” the language of the corresponding statutes, the Defendants are not entitled to additional specifics regarding which acts were performed in Robinson's official capacity.[3]

         Relatedly, the Defendants also argue that the indictment fails to allege sufficient information about the unlawful acts occurring during the final seventeen months of the alleged conspiracy. See doc. 56 at 9-11. However, in conspiracy cases, the Government is not required “to provide defendants with all overt acts that might be proven at trial.” United States v. Rosenthal, 793 F.2d 1214, 1227 (11th Cir.), modified,801 F.2d 378 (11th Cir. 1986); see also Colson, 662 F.2d at 1391 (affirming trial court's decision to deny a motion for bill of particulars where the government proved overt acts at trial that were not included in the indictment). Moreover, contrary to the Defendants' assertions, the Government alleges more than a single act during the last seventeen months of the alleged conspiracy. Specifically, in addition to their alleged communications directing Robinson to oppose the EPA's proposal to his constituents, the indictment claims that the Defendants facilitated payments to the Oliver Robinson Foundation in 2016, doc. 1 at 9, and that Gilbert instructed his law firm's accounting department “to remove references to the Oliver Robinson Foundation” on certain invoices, id. at 27. These details provide the Defendants “with sufficient factual information to prepare [their] defense as to the [alleged] illegal activity.” See United States v. Jones, No. 1:11-CR-42-TCB-LTW, 2012 WL 4049449, at *6 (N.D.Ga. Aug. 3, 2012), report and recommendation adopted, 2012 WL ...

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