United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski Chief United States District Judge.
matter comes before the court on two motions filed by
defendant Durand E. Berry: (1) a motion seeking dismissal of
the Indictment, ECF No. 33; and (2) a motion seeking a bill
of particulars from the government, setting forth the
specific prior conviction or convictions defendant is
required to register under the Sex Offender Registration and
Notification Act ("SORNA"), 34 U.S.C. § 20901,
ECF No. 32. The United States responded to both motions on
July 12, 2019. ECF No. 41. These issues are now ripe.
Indictment charges defendant with "having traveled in
interstate and foreign commerce, . . . knowingly fail[ing] to
register and update his registration" pursuant to SORNA.
ECF No. 12. Defendant moved to dismiss the Indictment in this
case on the grounds that the prior convictions he presumes
require him to so register predate the enactment of SORNA and
that Congress "unlawfully and unconstitutionally
delegated legislative authority to the Attorney General to
determine the retroactivity of SORNA to pre-enactment
offenders." ECF No. 33 at 2. Defendant conceded that the
Fourth Circuit had ruled against this argument in the
unpublished opinion United States v. Burns, No. 09-
4909, 2011 WL 970644 (4th Or. March 21, 2011), but pointed
out that, at the time of the filing of his motion, the
question was pending before the Supreme Court.
United States pointed out in its response to the motion, the
Supreme Court has since ruled on this issue in Gundy v.
United States, 588 U.S. (2019). ECF No. 41. The Supreme
Court held unequivocally in its opinion that the delegation
of authority to the Attorney General to determine the
retroactive application of SORNA to sex offenders convicted
before its enactment "easily passes constitutional
muster." Id. at 1. This ruling upheld that of
the Fourth Circuit in Burns and extinguishes any
argument defendant might make to dismiss the Indictment on
unconstitutional delegation grounds.
motion to dismiss the Indictment, ECF No. 33, is
Rule 7(f) of the Federal Rules of Criminal Procedure,
"[t]he court may direct the government to file a bill of
particulars" to "enable a defendant to obtain
sufficient information on the nature of the charge against
him so that he may prepare for trial." United States
v. Schembari, 484 F.2d 931, 934-35 (4th Cir. 1973). A
bill "is not to be used to provide detailed disclosure
of the government's evidence in advance of trial."
United States v. Automated Med. Labs., Inc., 770
F.2d 399, 405 (4th Cir. 1985). Furthermore, a bill of
particulars is unnecessary if the indictment provides fair
and sufficient information on the charges brought against the
defendant. United States v. Butler, 885 F.2d 195,
199 (4th Cir. 1989). Finally, an indictment that could be
deemed insufficient in the number of details it provides
might still be cured during the subsequent discovery process.
See, e.g., United States v. Najera, 585
Fed.Appx. 185, 185 (4th Cir. 2014) ("Because the
Government provided Najera with full discovery and because
Najera failed to show that he suffered any unfair surprise,
we conclude that the district court did not abuse its
discretion in determining that this was a discovery issue and
denying the motion for a bill of particulars.")
(citation omitted); United States v. Soc'y of Indep,
Gasoline Marketers of Am., 624 F.2d 461, 466 (4th Cir.
1979) ("We find no merit in the defendants' charge
that the trial court improperly denied their request for a
more detailed bill of particulars .... the Government
supplied the defendants with copies of all grand jury
testimony, access to all documents subpoenaed from
non-defendants; all documents voluntarily submitted to the
Government by third parties in the course of the
investigation; and all available Brady material.").
court finds no reason to order a bill of particulars from the
government. First, as can be read in defendant's motion
to dismiss the Indictment, defendant understands that
"the government will allege that Mr. Berry is required
to register under SORNA due to his 1984 Georgia convictions
for rape and sodomy." ECF No. 33. Second, as the United
States argues in its response, the government has provided
open file discovery in this case and, since the filing of
defendant's motion, has corresponded with defendant to
clarify which prior convictions necessitated SORNA
registration. See ECF No. 41 at 5 ("In an, email to
defense counsel dated June 11, 2019, the government
clarified, in writing, that Defendant is required to register
in both Georgia and Nevada."). This exchange of
information more than eliminates any possible need for a bill
of particulars. See United States v. Byrd, No.
1:07CR0005, 2007 WL 773924, at *1 (W.D. Va. Mar. 12, 2007)
("The government has confirmed that it will engage in
extensive voluntary disclosure in this case. Such disclosure
is an important factor to consider in deciding whether to
order a bill of particulars."). Defendant's motion,
ECF No. 32, is DENIED.
reasons explained above, the court DENIES
Berry's Motion for Dismissal of the Indictment, ECF No.
33, and ...