Case 2:16-cr-00046-GMN-PAL Document 637 Filed 08/18/16 Page 1 of 14

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UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

***

UNITED STATES OF AMERICA,

Plaintiff,
v.

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Case No. 2:16-cr-00046-GMN-PAL

ORDER

CLIVEN BUNDY, et al.,

(Mots. for Bill of Particulars

ECF Nos. 376, 448, 485, 551)

Defendants.

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This matter is before the court on Defendants Peter T. Santilli, Jr., O. Scott Drexler, Eric

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J. Parker,1 Micah L. McGuire, Jason D. Woods,2 and Steven A. Stewarts Motions for Bill of

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Particulars (ECF Nos. 376, 448, 485, 551) (the Motions). These Motions are referred to the

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undersigned pursuant to 28 U.S.C. 636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice.

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The court has considered the Motions, the Governments Responses (ECF Nos. 458, 519, 552,

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580), and Defendants Replies (ECF Nos. 476, 565, 606).

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I.

BACKGROUND AND PROCEDURAL HISTORY

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On February 17, 2016, a federal grand jury returned an Indictment (ECF. No. 5) against

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Defendant Cliven D. Bundy, his sons, Defendants Ryan C. Bundy and Ammon E. Bundy, as well

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as Defendants Ryan W. Payne and Peter T. Santilli, Jr. A Superseding Indictment (ECF. No. 27)

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was returned March 2, 2016, adding 14 new Defendants: Melvin D. Bundy, David H. Bundy,3

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Gerald A. Delemus, Eric J. Parker, O. Scott Drexler, Richard R. Lovelien, Steven A. Stewart,

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Todd C. Engel, Gregory P. Burleson, Micah L. McGuire, and Jason D. Woods. A total of 19

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Defendant Parker was given leave to join Defendant Drexlers motion. See Order (ECF No. 574).

Defendant Woods was given leave to join Defendant Stewarts motion. See Order (ECF No. 632).
Defendant Melvin D. Bundy represents that his true name is Mel Dallen Bundy. See Minutes of
Proceedings (ECF. No. 143). Defendant David H. Bundy represents that his correct name is Dave H.
Bundy. See Dave Bundy Memo. Oppn Protective Order (ECF. No. 347).

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defendants are now charged. The Defendants made their initial appearances in this case between

March 4, 2016, and April 15, 2016. All 19 Defendants are currently joined for trial pursuant to

the provisions of the Speedy Trial Act, 18 U.S.C. 3161. See Apr. 26, 2016 Case Mgmt. Order

(ECF. No. 321). Trial is set for February 6, 2017. Id.

A.

The Superseding Indictment

The Superseding Indictment (ECF No. 27) spans 64 pages with 153 paragraphs of

allegations and an additional 46 paragraphs of charges. Defendants are charged with 16 counts

of: conspiracy to commit an offense against the United States in violation of 18 U.S.C. 371;

conspiracy to impede or injure a federal officer in violation of 18 U.S.C. 372; use and carry of

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a firearm in relation to a crime of violence in violation of 18 U.S.C. 924(c); assault on a federal

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officer in violation of 18 U.S.C. 111(a)(1) and (b); threatening a federal law enforcement

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officer in violation of 18 U.S.C. 115(a)(1)(B); obstruction of the due administration of justice

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in violation of 18 U.S.C. 1503; interference with interstate commerce by extortion in violation

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of 18 U.S.C. 1951; and interstate travel in aid of extortion in violation of 18 U.S.C. 1952.

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Id. 154186. The Superseding Indictment also contains five forfeiture allegations against all

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19 Defendants. Id. at 5564.

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This case arises from a series of incidents that occurred in and around Bunkerville,

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Nevada, in April 2014. The Superseding Indictment alleges that the 19 Defendants planned,

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organized, conspired, led, and/or participated as gunmen in a massive armed assault against

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federal law enforcement officers to threaten, intimidate, and extort the officers into abandoning

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approximately 400 head of cattle owned by Cliven Bundy. Id. 1, 4. Law enforcement officers

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acted pursuant to three orders issued by a federal district court to seize and remove the cattle

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from federal public lands based on Cliven Bundys refusal to obtain the legally-required permits

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or pay the required fees to keep and graze his cattle on the land. Id. 23.

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The alleged leader, organizer, and chief beneficiary of the conspiracy is Cliven Bundy.

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Id. 60. His sons, Ammon, Ryan, Dave, and Mel Bundy are also alleged leaders and organizers

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of the conspiracy, id. 61, 64, as are Payne and Santilli. Id. 6263. Cavalier, Cooper,

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OShaughnessy, and Delmus are alleged mid-level leaders and organizers of the conspiracy.
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Id. 6568. Parker, Drexler, Stewart, McGuire, Woods, Lovelien, Engel, and Burleson are

alleged co-conspirators, armed gunmen, id. 6971, 7576, and followers who threatened

and used force and violence to prevent law enforcement officers from discharging their duties

and coerced their consent to abandon the cattle that were, pursuant to Court Order, lawfully in

their care and custody and which they were duty-bound to protect. Id. 57; see also 46.

The Superseding Indictment alleges that on March 14, 2014, the Bureau of Land

Management (BLM) formally notified Cliven Bundy that impoundment operations would take

place. Id. 49. Cliven Bundy subsequently threatened to interfere with those operations by

publically stating that he was ready to do battle with the BLM and he and his followers would

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do whatever it takes to protect his property.

Id. 48, 5051, 5354, 81, 92.

Law

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enforcement officers began a removal operation on April 5. Id. 4. On April 810, Santilli

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broadcasted words and images over the internet to recruit gunmen and other followers to travel

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to Cliven Bundys ranch (the Bundy ranch) in Bunkerville, Nevada, to stop the removal

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operation. Id. 92, 93, 9596, 104, 106, 108, 11011. Between April 1011, Defendants

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Drexler, McGuire, Stewart, Woods, and Parker traveled with their firearms from Idaho and

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Arizona to the Bundy ranch in Nevada. Id. 12021.

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By April 12, the BLM had seized and corralled approximately 400 head of cattle at an

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impoundment site, awaiting shipment to auction outside of Nevada. Id. 4245, 123. On April

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12, Defendants and hundreds of recruited followers executed a plan to recover the cattle by

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force, threats, and intimidation (the April 2014 Confrontation). Id. 12445. Defendants

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and the followers demanded that officers leave and abandon the cattle. Id. 134, 137, 141, 143.

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They threatened to use force if the officers did not do so. Id. 13841. Armed gunman took

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sniper positions behind concrete barriers and aimed their assault rifles at the officers. Id. 139

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40. Defendants and the followers outnumbered the officers by more than 4 to 1 and the potential

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firefight posed a threat to the lives of the officers as well as unarmed bystanders, which included

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children. Id. 133, 136. Thus, the officers were forced to leave and abandon the impounded

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cattle. Id. 142, 145. After the April 2014 Confrontation, leaders and organizers of the

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conspiracy organized armed security patrols and checkpoints in and around the Bundy ranch to
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deter and prevent any future law enforcement actions against Cliven Bundy or his co-

conspirators and to protect the cattle from future removal actions. Id. 14653.

B.

On April 22, 2016, the court held a scheduling and case management conference. See

Order (ECF. No. 198), Proposed Complex Case Schedule (ECF. No. 270); Mins. of Proceedings

(ECF. No. 327). The court heard from all parties and found that this case is complex within the

meaning of 18 U.S.C. 3161(h)(7)(B) based in part on: (i) the number of Defendants and

criminal charges, (ii) the voluminous discovery, (iii) the number of law enforcement officers and

witnesses involved, and (iv) because 7 of the 19 Defendants are also facing criminal prosecution

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Discovery Pursuant to the Case Management Order

in Oregon. See Case Mgmt. Order (ECF. No. 321).

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Discovery in this case is voluminous. Id.; see also July 15, 2016 Order (ECF No. 608).

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Discovery includes 1.4 terabytes of digital data, consisting of hundreds of hours of video and

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audio recordings made by law enforcement officers involved in the April 2014 events along with

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audio and video recordings posted on social media and other sources. Id. Additionally, the

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government obtained hundreds of thousands of pages of documents and communications

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produced by Facebook pursuant to court-authorized search warrants relating to various

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Defendants and third-parties Facebook accounts. Id. Discovery also includes approximately

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23 search warrants, search warrant applications, and supporting affidavits that are also

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voluminous, consisting of 40 to 60 pages each on average. Id. At least 100 law enforcement

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officers from many different law enforcement agencies were involved in the events and

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investigation.

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enforcement officers, national media outlets, and social media. Id. Over 100 witness interviews

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were also conducted in the investigation, which is still ongoing. Id. The court appointed a

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coordinating discovery attorney to facilitate the efficient production of evidence, assist in

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resolving accessibility of digitally stored data, and provide expertise in dealing with copying

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issues or corrupted file issues and the like. See May 3, 2016 Order (ECF No. 363).

The government obtained hundreds of hours of recordings from law

The government proposed and the court approved three phases of discovery disclosures:

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Id.

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seizure of documents, property, or things belonging to Defendants; and (ii) statements,

documents, and objects (including audio or video recordings) required to be disclosed

pursuant to Rule 16(a)(l)(A)-(B) and (D).

Rule 16(a)(l)(E).

Superseding Indictment, except for reports, memoranda, or other internal government

documents that relate to interviews of prospective witnesses.

Phase I (i) Search warrants, applications, and affidavits relating to the search and

Phase II Documents and objects the government is required to produce pursuant to

Phase III All police or investigative reports relating to the charges in the

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See Case Mgmt. Order (ECF. No. 321). Pursuant to the Jencks Act, 18 U.S.C. 3500, the

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government also proposed to disclose statements or reports of the witnesses it intends to call at

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trial 30 days before trial.

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government agreed to disclose these materials 30 days before trial even though the Jencks Act

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only requires the government to make such disclosures after a witness has been called to testify

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on direct examination. See Order (ECF No. 608) at 20; 18 U.S.C. 3500(b).

See Proposed Complex Case Schedule (ECF. No. 270).

The

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The court ordered the government to produce Phase I and II discovery by May 6, 2016.

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Case Mgmt. Order (ECF. No. 321) at 13. No date was ordered for Phase III or the other

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categories of discovery on which no agreement was reached. The government represents that it

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produced Phases I and II of discovery on May 6, and Phase III on June 20. See Govt Resp.

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(ECF No. 580) at 3. With its production of Phases I and II, the government included a detailed

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index describing the information and the location of the digital folders containing such

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information. Id. Phase III discovery consists of over 7,400 pages of investigative reports related

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to Phases I and II of discovery and other related information. Id.

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After the court entered the Case Management Order, the parties met and conferred but

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could not reach an agreement regarding a stipulated protective order. The court entered a

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Temporary Protective Order (ECF. No. 392) pending a decision on the merits of the

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governments motion for protective order. The court entered an Order (ECF No. 608) granting

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in part and denying in part the governments motion for protective order.
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The court

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acknowledged the press and publics qualified right to access to judicial records and proceedings,

but found no common law or First Amendment right to access to pretrial discovery. Id. at

19:2720:1.

Additionally, the court found that the government agreed to produce more than it is

required to produce in pretrial discovery, and at an earlier time, provided that a protective order

was entered. Id. at 2021. The court further noted:

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Much of the discovery the government has produced and agreed to produce,
subject to a protective order, is information the Defendants are not entitled to
receive until after a witness testifies on direct examination at trial. Some of the
discovery the government has agreed to produce, subject to a protective order, is
information the government is not required to produce at all, such as reports and
memoranda of investigating agents. See Fed R. Crim. P. 16(a)(2).

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Id. at 21:1419. The court concluded that a protective order would facilitate defense access to

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materials they are not entitled to receive and/or would not receive until trial. Id. at 21. The court

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entered its own form of protective order, which was tailored to allow Defendants to receive the

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additional discovery materials while not restricting dissemination of materials already in the

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public domain. Id. at 2122; see also Protective Order (ECF No. 609).

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II.

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DEFENDANTS MOTIONS FOR BILL OF PARTICULARS

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A.

Legal Standard

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Rule 7 of the Federal Rules of Criminal Procedure allows criminal defendants to request

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a bill of particulars. Fed. R. Crim. P. 7(f) (The court may direct the government to file a bill of

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particulars.). The purpose of a bill of particulars is to minimize the danger of surprise at trial

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and to provide sufficient information on the nature of the charges to allow preparation of a

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defense. United States v. Mitchell, 744 F.2d 701, 705 (9th Cir. 1984). The Ninth Circuit has

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recognized that a bill of particulars has three functions:

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[1] to inform the defendant of the nature of the charge against him with sufficient
precision to enable him to prepare for trial, [2] to avoid or minimize the danger of
surprise at the time of trial, and [3] to enable him to plead his acquittal or
conviction in bar of another prosecution for the same offense when the indictment
itself is too vague, and indefinite for such purposes.

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United States v. Giese, 597 F.2d 1170, 1180 (9th Cir. 1979) (quoting United States v. Brimley,

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529 F.2d 103, 108 (6th Cir. 1976)); see also United States v. Burt, 765 F.2d 1364, 1367 (9th Cir.

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1985)). The function and purpose of a bill of particulars is served when the indictment itself

provides sufficient details of the charges and the Government provides full discovery to the

defense. Mitchell, 744 F.2d at 705. The court should consider whether the defendant has been

advised adequately of the charges through the indictment and all other disclosures made by the

government. United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983). A meritorious

motion should specify any prejudice or surprise that would result from the denial of his request

for a bill of particulars. United States v. DiCesare, 765 F.2d 890, 898 (9th Cir. 1985). The

decision of whether or not to grant a motion for a bill of particulars is committed to the discretion

of the trial court. Long, 706 F.2d at 1054.

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The Ninth Circuit has expressly held that a bill of particulars is not required to identify

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exact details sought by defendants. DiCesare, 765 F.2d at 89798. A defendant has no right to

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know all the evidence the government intends to produce, but only the theory of the

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governments case. Giese, 597 F.2d at 1181. For example, a bill of particulars is not warranted

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to provide the following kinds of details: (1) to obtain the names of any unknown

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coconspirators; (2) to determine the exact date on which the conspiracy allegedly began; and (3)

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to delineate all other overt acts that comprised the charged activity. DiCesare, 765 F.2d at 897

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98 (citing United States v. Long, 449 F.2d 288, 29495 (8th Cir. 1971) (exact times); Wilkins v.

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United States, 376 F.2d 552, 56263 (5th Cir. 1967) (names of all coconspirators); Cook v.

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United States, 354 F.2d 529, 531 (9th Cir. 1965) (all overt acts)). Evidentiary details such as the

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who, what, when, where, and why of the crimes alleged fall within the scope of discovery and do

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not warrant a bill of particulars. United States v. Ellis, 121 F. Supp. 3d 927, 941 (N.D. Cal.

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2015). A defendants constitutional right is to know the offense with which he is charged, not

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to know the details of how it will be proved. United States v. Grace, 401 F. Supp. 2d 1103,

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1107 (D. Mont. 2005) (citing United States v. Kendall, 665 F.2d 126, 135 (9th Cir. 1981)).

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Additionally, the government is not required to disclose its theory of liability as to each

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defendant in a bill of particulars, as long as full discovery is provided to the defense. Ellis, 121

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F. Supp. 3d at 942 (citing United States v. Buckner, 610 F.2d 570, 574 (9th Cir. 1979)

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(Assuming, as we do, that all relevant facts were disclosed and available, the government is not
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obliged to disclose the theory under which it will proceed.)). Full discovery obviates the need

for a bill of particulars. Id. at 941 (quoting Giese, 597 F.2d at 1180).

B.

Defendants Position

The court will collectively summarize the positions of Defendants Drexler, McGuire,

Stewart, Woods, and Parker since they are similarly situated as alleged gunmen, followers, and

co-conspirators and their Motions present parallel arguments. See Defs. Mots. (ECF Nos. 448,

485, 551).

argument will be separately addressed.

Defendant Santillis Motion (ECF No. 376) and his unique First Amendment

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Defendants Drexler, McGuire, Stewart, Woods, and Parker

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Defendants Motions seek a bill of particulars to require the government to identify the

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nature of the charges against them with more particularity. Defendants submit approximately 25

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questions asking for information such as:

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reference to particular paragraphs or counts in the Superseding Indictment.

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enforcement officers involved in the events alleged in the Superseding Indictment.

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could not perform their duties.

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intimidated, and/or threatened, and where any such officers went afterwards.

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The relationship of each co-Defendant to each other.

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The name of the person(s) to whom Defendants brandished their firearms.

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The location where the alleged interstate commerce began and was to end.

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The buyer and seller of the 400 head of cattle, including their locations.

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The specific property the government is requesting that each Defendant forfeit.

The specific alleged acts, overt acts, or conduct the government is alleging in

The names, job titles, employers, descriptions, and duties of the actual law

The place where such duties began and then where officers left so that the officers

The location of any officers at the times such officers were allegedly induced,

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In addition, for the offenses charged more than once, Defendants seek a bill of particulars to

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distinguish the overt acts for each count, e.g., distinguishing the overt acts for count six from the

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acts alleged for count nine.

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Defendants acknowledge that the discovery in this case is voluminous, and the

government only recently began providing discovery. See, e.g., McGuires Mot. (ECF No. 485)

at 1; Stewarts Mot. (ECF No. 551) at 2. However, they argue they cannot properly prepare a

defense, prevent prejudicial surprise at trial, or protect against double jeopardy without the

requested information. See Drexlers Mot. (ECF No. 448) at 56. They also acknowledge that

the function of the bill of particulars is not ordinarily to provide a defendant with the names of

government witnesses. Stewarts Reply (ECF No. 606) at 3. But, given the large number of

people and law enforcement officers involved in the April 2014 Confrontation, they claim they

will undoubtedly suffer prejudicial surprise unless the government identifies the officers before

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trial. Id. The Superseding Indictments scant reference to each Defendant by name further

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demonstrates the vagueness of the allegations.

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Defendants maintain they are not asking for the who, what, when, why, where, and how of

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every alleged act, but are seeking some specificity beyond rote allegations.

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Defendants assert that their need to know the evidentiary details establishing the facts of the

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alleged offenses can only be remedied with a bill of particulars.

2.

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McGuires Reply (ECF No. 565) at 4.

Id. at 5.

Defendant Santilli

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Defendant Santillis Motion asserts that the government is prosecuting him for speech

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protected by the First Amendment. See Mot. (ECF No. 376) at 2. Santilli asserts that reporting

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the BLMs activities or advocating a position on the Peter Santilli Show does not rise to the

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level necessary to create unlawful speech. Id. at 3. He seeks a bill of particulars to require the

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government to provide details of all the speech for which he will stand trial because the

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Superseding Indictment relies on generalized statements that do not inform him of the specific

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conduct alleged.

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Confrontation includes anyone in the Bunkerville area who is not a government employee.

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Reply (ECF No. 476) at 3. The intent of each Defendant regarding the charges is sufficiently

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different as each Defendant had different reasons for being in Bunkerville. Id. at 2. Thus,

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Santilli requests the government be required to file a bill of particulars to:

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Id.

Santilli argues that the conspiracy count related to the April 2014

Detail all of the speech that the government is claiming is unlawful.

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media that is recording the events that unfolded on April 9 and 12, 2014.

being prosecuted.

Detail how Santilli can be an organizer or support a conspiracy as a member of the

Specify which episodes of Santillis show contain unlawful speech for which he is

See Mot. (ECF No. 376) at 4.

Additionally, or alternatively, Santilli asks the court for an order similar to the one the

Honorable Anna J. Brown entered in the District of Oregon in United States v. Bundy et al., Case

No. 3:16-cr-00051-BR. There, Judge Brown denied a motion for bill of particulars but still

ordered the government to provide each defendant with the following:

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1. A Statement of the primary factual bases supporting the Defendants alleged

criminal liability for each Count in which that Defendant is charged; and

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2. A statement as to whether such criminal liability is as a principal, an aider and

abettor, or both.

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See Reply (ECF No. 476) at 2 (quoting May 26, 2016 Order (D. Or. ECF No. 614)). Santilli

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contends that the charges in the Oregon case are somewhat similar in that protestors and

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government employees disagreed as to the rightful possession, and control over land currently

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managed by the BLM. Id. Because it is impossible to understand exactly what conduct the

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government is presenting as unlawful in their Superseding Indictment, he asks the court to order

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the government to provide statements similar to what Judge Brown did in the Oregon case. Id.

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Defendant Stewarts Reply (ECF No. 606) also requests an order similar to Judge Browns order.

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Although Stewarts 25 questions are more specific, he argues they request the same thing.

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Id. at 2.

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government was unable to address this position.

Because both Santilli and Stewart made these requests in their reply briefs, the

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C.

The Governments Position

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The government argues that the 63-page Superseding Indictment amply describes the

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counts charged, the Defendants roles in the conspiracy, and the overt acts committed in

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furtherance of the conspiracy. See Resps. (ECF Nos. 458, 519, 552, 580). In its 153 paragraphs

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of allegations, the Superseding Indictment details the events leading up to the April 2014

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Confrontation, the April 2014 Confrontation itself, and the post-April 2014 Confrontation events
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that allegedly kept the conspiracy alive.

Based on the level of detail in the Superseding

Indictment, the government contends that Defendants are fully informed of the nature of the

charges against them and the theory of each Defendants criminal liability. The government

provides the following examples from the Superseding Indictment:

to achieve them.

Drexler, McGuire, Stewart, Woods, and Parker.

Paragraphs 5559 detail the objects of the conspiracy and the manner and means used

Paragraphs 6076 describe the role of each of the conspirators, including Santilli,

Paragraphs 78121 delineate the overt acts committed in furtherance of the

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conspiracy between March 28, 2014 and April 11, 2014.

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conspiracy on April 12, 2014, describing the assault and extortion in detail.

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conspiracy after the assault to the date of the Superseding Indictment.

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In addition, the government argues that the court should deny the motions because

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Defendants have the benefit of fulsome discovery, including hundreds of hours of recordings and

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hundreds of thousands of documents, images, and communications. Discovery is not only

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fulsome, but was accompanied by a detailed index describing the information disclosed in Phases

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I and II and the location of the digital folders containing such information. See Resp. (ECF

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No. 580) at 3. Phase III discovery provided over 7,400 additional pages of investigative reports

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and other related information. Id. As such, the government has done more than it is required to

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do, and Defendants are not entitled to have the government walk through its case. Defendants

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have enough information to understand what they are charged with, to avoid surprise at trial, and

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to assert jeopardy at a later time. Therefore, the Motions should be denied.

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Paragraphs 122145 delineate the overt acts committed in furtherance of the

Paragraphs 146153 delineate the overt acts committed in furtherance of the

With regard to Santillis First Amendment argument, the government contends that his
two requests are irrelevant to the criminal charges and inappropriate for a bill of particulars:
Santilli is not charged for being a blog host, for making speeches or for using
offensive language he is charged with conspiracy. There is nothing about
the First Amendment that immunizes him from conspiracy liability based on his
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supposed status as a blogger. There is nothing about the First Amendment that
shields him from prosecution for using the internet to recruit gunmen to threaten
federal law enforcement officers. There is nothing about the First Amendment
that magically transforms the language he used to further a criminal conspiracy
and to threaten federal officers into protected speech.

Resp. (ECF No. 458) at 7:911, 7:1724. Furthermore, the Superseding Indictment does, in fact,

set out the details of Santillis role and activities in the conspiracy. Id. at 6 (citing Superseding

Indictment 63, 9293, 100, 104, 10611, 115).

numerous calls to arms and threats and quote specific language used in the course of making the

threats or issuing the calls to arms.

Superseding Indictment and the indexed disclosures adequately address Santillis requests.

Id. at 8.

The paragraphs cited detail Santillis

The government therefore asserts that the

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D.

Analysis

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The court finds that the language of the Superseding Indictment (ECF No. 27) is detailed

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and clear, and when read as a whole, it sufficiently informs Defendants of the charges against

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them. The Superseding Indictment expressly alleges that Defendants Parker, Drexler, Stewart,

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McGuire, and Woods were co-conspirators, armed gunmen, and followers who threatened

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and used force and violence to prevent law enforcement officers from discharging their duties

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and coerced the officers consent to abandon Cliven Bundys cattle. See, e.g., id. 57, 6971,

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7576. Although the Superseding Indictment does not include many specific references to

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Parker, Drexler, Stewart, McGuire, and Woods, the document refers to gunmen at least 72

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times and followers at least 80 times. The court finds that the 63-page Superseding Indictment

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adequately provides notice of the charges.

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Although one or more Defendants claim otherwise, in actuality the Motions ask for the

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who, what, when, where, and why of the crimes alleged, which are questions that fall within the

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scope of discovery and do not warrant a bill of particulars. See Ellis, 121 F. Supp. 3d at 941.

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They repeatedly ask for exact overt acts or specific acts or conduct in reference to particular

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paragraphs or counts. Defendants ask for names, job titles, employers, descriptions, and duties

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of the actual law enforcement officers involved in the April 2014 Confrontation and the

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surrounding events.

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relationships, and property subject to forfeiture. Notably, the requests for specifics regarding the

Other questions request exact locations, descriptions of Defendants

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Case 2:16-cr-00046-GMN-PAL Document 637 Filed 08/18/16 Page 13 of 14

forfeiture allegations do not comport with the express language of the Federal Rules of Criminal

Procedure. See Fed. R. Crim. P. 32.2(a) (The indictment or information need not identify the

property subject to forfeiture or specify the amount of any forfeiture money judgment that the

government seeks.). Defendants questions plainly seek evidentiary details and what amounts

to a roadmap of the governments casethey do not justify a bill of particulars. See DiCesare,

765 F.2d at 89798; Grace, 401 F. Supp. 2d at 1107.

In contrast to the gunmen, Santilli is an alleged leader and organizer of the conspiracy.

Superseding Indictment (ECF No. 27) 63. The Superseding Indictment contains at least 44

references to Defendant Santilli by name, and numerous direct quotes that Santilli allegedly

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made on his show, id. 9293, 104, 106, 108, 11011, and directly to the BLMs Special

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Agent-in-Charge, id. 102, 115. The allegations against Santilli provide sufficient information

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about the nature of the charges and the theory of the governments case to allow him to prepare

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his defense. Santilli is not entitled to a bill of particulars to identify each episode of his show

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allegedly evidencing his recruiting statements or the details of all the speech the government

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claims was unlawful.

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Additionally, given the ample discovery disclosures Defendants have received, which

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exceed the requirements set by the Federal Rules of Criminal Procedure and the Jencks Act, the

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court finds that denial of a bill of particulars will not result in prejudice or surprise. All but one

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of the Motions expressly describe discovery in this case as voluminous. See Mots. (ECF

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Nos. 376, 485, 551). Discovery includes hundreds of hours of video and audio recordings and

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hundreds of thousands of pages of documents, images, and communications. See Case Mgmt.

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Order (ECF No. 321); Order (ECF No. 608).

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provided Defendants with an index describing the information and the location of the digital

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folders containing such information. See, e.g., Govt Resp. (ECF No. 580) at 3. The court has

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previously found that the government is producing more than it is required and at an earlier time.

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Order (ECF No. 608) at 20. The government has therefore provided full discovery and obviated

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the need for a bill or particulars. See Ellis, 121 F. Supp. 3d at 941 (quoting Giese, 597 F.2d at

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1180).
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Beyond this discovery, the government also

Case 2:16-cr-00046-GMN-PAL Document 637 Filed 08/18/16 Page 14 of 14

The court declines to issue an order directing the government to provide each defendant

with a factual statement similar to Judge Browns Order (D. Or. ECF No. 614) because the

charging documents in these two cases are markedly different. The indictment in the Oregon

case names 26 defendants and consists of a scant four pages in contrast to the 63-page

Superseding Indictment in this case naming 19 defendants.

Indictment (D. Or. ECF No. 250) with Superseding Indictment (ECF No. 27). Additionally,

Judge Browns Order required a statement as to whether the Oregon Defendants criminal

liability is as a principal, an aider and abettor, or both. However, in this case, the government

clearly alleges each Defendants role as either a (i) leader and organizer, (ii) mid-level leader and

Compare Oregon Superseding

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organizer, or (iii) gunman.

See Superseding Indictment, Section VII.C. Roles of the

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Conspirators, at 1518, 6076. The Superseding Indictment in this case also alleges 76

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paragraphs of overt acts, spanning approximately 20 pages. Id., Section VII.D. Overt Acts in

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Furtherance of the Conspiracy, at 1838, 77153.

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The court concludes that the indictment sufficiently informs Defendants of the nature of

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the charges to allow them to prepare a defense, avoid any unfair surprise at trial, and plead

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double jeopardy in any subsequent prosecution. For the foregoing reasons, Defendants Motions

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are denied.

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Accordingly,

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IT IS ORDERED: Defendants Peter T. Santilli, Jr., O. Scott Drexler, Eric J. Parker,

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Micah L. McGuire, Jason D. Woods, and Steven A. Stewarts Motions for Bill of Particulars

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(ECF Nos. 376, 448, 485, 551) are DENIED.

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Dated this 18th day of August, 2016.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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