Burks’ last-minute delay denied, trial on for July 5th
Back in March Paul Burks demanded the government provide him with a bill of particulars and additional information pertaining to the DOJ’s criminal case against him.
A bill of particulars is provided “to enable a defendant to obtain sufficient information on the nature of the charge against him so that he may prepare for trial, minimize the danger of surprise at trial, and enable him to plead his acquittal or conviction in bar of another prosecution for the same offenses.
What a bill of particulars is not to be used for however, is to ‘provide detailed disclosure of the government’s evidence in advance of trial‘.
And so the stage was set for a showdown between the DOJ and Burks.
Did Burks actually need a bill of particulars, or was he just fishing for information about the government’s case with the intent of further delay his upcoming trial?
To put Burks’ latest request into perspective, it was made mere weeks before he scheduled to go on trial. Burks was indicted in late 2014.
Since the indictment
the Government has provided expanded file discovery to the defense pursuant to an agreement signed by all parties on November 17, 2014.
To date, more than 15.4 million documents have been produced by the Government. Defendant has had copies of witness interview reports and Grand Jury transcripts for well over a year.
During the discovery process, new reports have been provided to Defendant as soon as they were generated.
Additionally, the parties are working on an agreement to exchange exhibits in advance of trial.
Yet Burks would have everybody believe he doesn’t understand the nature of the charges against him, nor the particulars of the DOJ’s case.
Judge Cayer however was having none of it.
Asserting that Burks ‘has sufficient information regarding the nature of the charges against him’, Judge Cayer denied Burks’ motions for a bill of particulars and additional information on May 4th.
Five days later Burks filed an appeal, claiming Judge Cayer’s ruling was ‘clearly erroneous (and) contrary to law‘.
The Magistrate’s Order fails to engage with the plain language—and deficits—in the Indictment and the arguments raised in Mr. Burks’ pleadings with Rule 7(f) of Federal Rules of Criminal Procedure.
On May 16th the DOJ filed a response to Burks’ appeal.
Of particular note in the DOJ’s response was the revelation of games Burks’ and his attorneys have been playing regarding his defense.
Discovery in this case has been exclusively one-sided. Despite persistent requests for reciprocal discovery, the only documents provided by defense were two spiral notebooks – provided in the last couple of months – which were responsive to and should have been provided to the United States years ago in response to grand jury subpoenas.
The United States has received no information regarding any potential defense experts, despite requests.
The United States has received no information regarding any potential reliance defense to be used by the defense
The United States is completely in the dark about any legitimate defense that the Defendant might raise.
If anyone will be blindsided at trial, it will be the United States.
A day later on May 17th, Judge Cayer’s initial order was affirmed.
To show that a magistrate judge’s order is contrary to law, the objecting party must show that the magistrate judge failed to apply or misapplied statutes, case law, or procedural rules.
The court has carefully reviewed the Order as well as the objection, and has determined that the Order of the magistrate judge is fully consistent with and supported by current law, which he cited in his Order.
Based on such determination, the court will overrule the Objections and fully affirm the Order.
Reading between the lines, despite Burks’ claims about Judge Cayer’s order, he failed to provide any proof backing them up.
With Burks’ eleventh hour delay attempts out of the way, his trial remains scheduled to kick off on July 5th.
Footnote: Our thanks to Don@ASDUpdates for providing a copy of Judge Cayer’s May 4th order, Paul Burks’ May 9th appeals, the DOJ’s May 16th response and Judge Cogburn’s May 17th affirmation order.