United States District Court, W.D. Virginia, Abingdon Division
P. Bubar, Albert P. Mayer, Kristin L. Gray, Joseph S. Hall,
Garth W. Huston, Janine M. Myatt, and Carol L. Wallack,
United States Attorney's Office, for United States
J. Bondurant, Jr., and Jennifer S. DeGraw, Gentry Locke,
Leigh A Krahenbuhl, James R. Wooley, James P. Loonam, and
Peter J. Romatowski, Jones Day, for Defendants.
OPINION AND ORDER DENYING OBJECTIONS
P. Jones, United States District Judge.
defendants, Indivior Inc. and Indivior PLC, have filed a
Motion for Bill of Particulars and a Motion to Compel the
government to provide additional discovery. The magistrate
judge denied both motions, and the defendants have objected
to her Memorandum Order. As I find that the magistrate
judge's findings are neither clearly erroneous nor
contrary to law, I will overrule the objections and affirm
the Memorandum Order.
defendants are alleged to have deceived health care providers
and benefit programs into believing that the prescription
medication Suboxone® (buprenorphine and naloxone)
sublingual film (“Suboxone Film”) is safer and
less susceptible to diversion and abuse than other similar
drugs. The Superseding Indictment charges the defendants
with: (1) one count of conspiracy to commit mail, wire, and
healthcare fraud, all in violation of 18 U.S.C. § 1349;
(2) one count of healthcare fraud, in violation of 18 U.S.C.
§§ 2 and 1347; (3) four counts of mail fraud, in
violation of 18 U.S.C. §§ 2 and 1341; and (4)
twenty-two counts of wire fraud, in violation of 18 U.S.C.
§§ 2 and 1343.
their request for a bill of particulars, the defendants seek
a catalogue of information that ranges from “[e]very
false or fraudulent statement or representation the
government intends to introduce at trial” and
“[t]he nature of any agreement or agreements supporting
the asserted conspiracy charge” to “[a]ny actions
attributable to Indivior PLC.” Defs.' Mot. Bill of
Particulars 1-2, ECF No. 136. The defendants assert that such
a bill of particulars is necessary to effectively prepare for
trial and to avoid unfair surprise.
their Motion to Compel, the defendants argue that the
government has an obligation to provide relevant and material
information in the possession of “all
agencies, ” regardless of whether the agency or its
subdivision participated in the investigation. Mem. Supp.
Mot. Compel 1, ECF No. 118. The defendants note that the
government has not produced all such discovery. The
defendants further contend that the government should be
required to prepare an index of potentially exculpatory
information due to the sheer volume of discovery.
opposition, the government argues that a bill of particulars
is not necessary because the requested information has
already been provided in the Superseding Indictment and in
discovery. As for the Motion to Compel, the government
maintains that existing precedent does not require the
expansive discovery sought by the defendants. The government
also emphasizes that the federal agencies and agency
subdivisions listed in the defendants' motion did not
participate in the underlying investigation. The government
concludes that it produced the discovery materials in a
searchable electronic format to defendants with substantial
resources, and it therefore should not be required to
identify potentially exculpatory material for the defense.
Memorandum Order, the magistrate judge found that a bill of
particulars was not necessary due to the details provided in
the Superseding Indictment and the amount of discovery
provided to the defendants. The magistrate judge further
concluded that the government has no obligation to produce
information known to be in the possession of an agency that
neither participated in the underlying investigation nor the
current prosecution. The magistrate judge noted that Rule 16
of the Federal Rules of Criminal Procedure only requires
disclosure of exculpatory evidence or evidence material to
the defense that is not publicly available or already known
to the defense, rather than information that might be
relevant to their defense. Finally, the magistrate judge held
that the government is not required to specifically identify
exculpatory or impeachment evidence contained within its
disclosures under the circumstances of this case.
Rule 59(a) of the Federal Rules of Criminal Procedure, when a
party objects to a nondispositive order of a magistrate
judge, I must review the order to determine whether it is
contrary to law or clearly erroneous. Fed. R. Crim. P. 59(a).
An order is clearly erroneous when “although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.” Minyard Enters., Inc.
v. Se. Chem. & Solvent Co., 184 F.3d 373, 380 (4th
Cir. 1999). An order is contrary to law “when it
fails to apply or misapplies relevant statutes, case law, or
rules of procedure.” United States v. Dunlap,
1:12CR00044-004, 2013 WL 30145, at *1 (W.D. Va. Jan. 2,
7(f) of the Federal Rules of Criminal Procedure provides that
a “court may direct the government to file a bill of
particulars” upon a defendant's motion. A bill of
particulars is intended “to fairly apprise the
defendant of the charges against [them] so that [they] may
adequately prepare a defense and avoid surprise at
trial” but must “not . . . be used to provide a
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). Instead,
“[i]t merely amplifies the indictment by providing
missing or additional information so that the defendant can
effectively prepare for trial.” United States v.
Fletcher, 74 F.3d 49, 53 (4th Cir. 1996).
in federal criminal cases is governed by federal statute, the
Federal Rules of Criminal Procedure, and case law. See,
e.g., 18 U.S.C. § 3500; Fed. R. Crim. P. 12, 12.1,
12.2, 12.3, 16, 26.2, and 46(j); Giglio v. United
States, 405 U.S. 150 (1972) (holding that the government
must disclose potential impeachment information for its
witnesses); Brady v. Maryland, 373 U.S. 83 (1963)
(holding that the government must disclose potential
exculpatory information). Rule 16(a)(1) requires the
government to disclose certain evidence to a ...