United States District Court, E.D. Virginia, Alexandria Division
C. Cacheris UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on Defendant Musa Kamara's
(“Defendant”) Motion for a Bill of Particulars.
[Dkt. 39.] Defendant's Motion to Suppress Evidence [Dkt.
51] and Motion for Discovery [Dkt. 50] are also before the
Court. For the following reasons, the Court will deny the
motion for a bill of particulars. The Court will also deny
Defendant's motion to suppress and his motion for
April 13, 2017, a grand jury returned an indictment that
charged Defendant with conspiracy to commit wire and bank
fraud and conspiracy to commit access device fraud.
Indictment [Dkt. 19]. On May 11, 2017, the grand jury
returned a superseding indictment that added ten substantive
counts to the two conspiracy counts already alleged,
including two counts of Aggravated Identity Theft against
Defendant. Superseding Indictment [Dkt. 47]. The superseding
indictment alleges that between January 2014 and April 2017,
Defendant conspired with others to purchase stolen credit
card numbers online, encode those numbers onto physical
cards, and use those cards to make fraudulent purchases.
See Superseding Indictment [Dkt. 47], ¶ 11.
More specifically, the superseding indictment alleges that
Defendant received emails from a co-conspirator on at least
two occasions with stolen credit card numbers, exchanged text
messages with two different co-conspirators regarding the use
of re-encoded cards, and possessed at least three re-encoded
cards when he was arrested in Washington, D.C. Id.,
¶ 12. In addition, the superseding indictment alleges
that Defendant unlawfully transferred, possessed, or used
L.L.'s Capital One payment card ending in 8856 and
S.E.'s Citibank payment card ending in 5175.
Id., ¶ 31.
few exceptions,  both parties have filed pleadings and
responsive materials for all three motions. Oral argument was
held on May 25, 2017. These matters are now ripe for
Motion for a Bill of Particulars
Federal Rule of Criminal Procedure 7(f), the court “may
direct the government to file a bill of particulars.”
Fed. Rule Crim. P. 7(f). The decision to grant or deny a
motion for a bill of particulars rests with the sound
discretion of the trial court. United States v.
Anderson, 481 F.2d 685, 690 (4th Cir. 1973). The purpose
of a bill of particulars is to “supply any essential
detail which may have been omitted from the indictment,
” id. at 691, but the Government need not
“provide detailed disclosure of the government's
evidence in advance of trial, ” United States v.
Automated Med. Labs., Inc., 770 F.2d 399, 406 (4th Cir.
1985). The ultimate test is whether “deprivation of the
information sought will render the defendant subject to
unfair surprise.” United States v. Sampson,
448 F.Supp.2d 692, 696 (E.D. Va. 2006) (citing United
States v. Fletcher, 74 F.3d 49, 53 (4th Cir. 1996)).
Motion to Suppress
Fourth Amendment requires that all searches and seizures be
supported by a warrant based on probable cause. See Katz
v. United States, 389 U.S. 347, 357 (1967). Probable
cause “is a fluid concept-turning on the assessment of
probabilities in particular factual contexts-not readily, or
even usefully, reduced to a neat set of legal rules.”
Illinois v. Gates, 462 U.S. 213, 232 (1983).
Probable cause determinations are based on the
“totality of the circumstances” of each case.
Maryland v. Pringle, 540 U.S. 366, 371 (2003).
Probable cause is found “where the known facts and
circumstances are sufficient to warrant a man of reasonable
prudence in the belief that contraband or evidence of a crime
will be found.” Ornelas v. United States, 517
U.S. 690, 696 (1996).
reviewing a magistrate's determination of probable cause
does not assess the existence of probable cause de
novo. Instead, the court's task is to ascertain
whether the magistrate had a substantial basis for concluding
that probable cause existed. Gates, 462 U.S. at
238-39. In doing so, courts are to give the magistrate's
determination “great deference.” Id. at
236. In addition, courts should not invalidate warrants by
interpreting affidavits in a “hypertechnical, rather
than a commonsense, manner.” Id.; see also
United States v. Gary, 420 F.Supp.2d 470, 476 (E.D. Va.
2006). To assess a magistrate's finding of probable
cause, a reviewing court may look only at the evidence
provided to the magistrate, as well as any reasonable
inferences that may be drawn therefrom. Gates, 462
U.S. at 235.
Motion for Discovery
Rule of Criminal Procedure 16 states that “the
government must provide to the defendant” a list of
items prior to trial, including: (1) defendant's oral
statements; (2) defendant's written or recorded
statements; (3) defendant's prior criminal record; (4)
any documents or objects that may be material to the defense,
may be used in the Government's case-in-chief, or may
belong to the defendant; (5) the results of any examinations
and tests that the Government has in its possession or knows
exist and that may be material to the defense; and (6) a
written summary of potential testimony from expert witnesses.
See Fed. R. Crim. P. 16(a)(1)(A)-(G). It also makes
clear that “[a]t any time the court may, for good
cause, deny, restrict, or defer discovery or inspection, or
grant other appropriate relief.” Id. 16(d)(1).
addition to the Federal Rules, “due process requires
that the Government disclose to the accused any favorable
evidence in its possession that is material to guilt or
punishment.” United States v. Beckford, 962
F.Supp. 780, 785 (E.D. Va. 1997) (citing Brady v.
Maryland, 373 U.S. 83, 87 (1963)). Favorable evidence
includes both exculpatory evidence and evidence that may be
used to impeach Government witnesses. See United States
v. Bagley, 473 U.S. 667, 676 (1985); see also Giglio
v. United States, 405 U.S. 150, 154 (1972). Such
evidence is material “if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.” Bagley, 473 U.S. at 682.
fulfilling its Brady obligations, “the
Government must actively search out the requested material in
its files and in the files of related agencies reasonably
expected to have possession of such information.”
Beckford, 962 F.Supp. at 785 (citing Kyles v.
Whitley, 514 U.S. 419 (1995); United States v.
Agurs, 427 U.S. 97 (1976) (holding that a
defendant's failure to request favorable evidence did not
leave the Government free of all obligation to disclose
Brady material)). “However, the prosecutor is
not required to deliver his entire file to defense counsel,
but only to disclose evidence favorable to the accused that,
if suppressed, would deprive the defendant of a fair
trial.” Id. (citing Bagley, 473 U.S.