Case 2:16-cr-00046-GMN-PAL Document 671 Filed 09/19/16 Page 1 of 10

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DANIEL G. BOGDEN
United States Attorney
District of Nevada
STEVEN W. MYHRE
NICHOLAS D. DICKINSON
Assistant United States Attorneys
NADIA J. AHMED
ERIN M. CREEGAN
Special Assistant United States Attorneys
501 Las Vegas Blvd. South, Suite 1100
Las Vegas, Nevada 89101
(702) 388-6336
steven.myhre@usdoj.gov
nicholas.dickinson@usdoj.gov
nadia.ahmed@usdoj.gov
erin.creegan@usdoj.gov
Attorneys for the United States.

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,

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Plaintiff,
v.
STEVEN A. STEWART,
Defendant.

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2:16-CR-00046-GMN-PAL
GOVERNMENTS RESPONSE IN
OPPOSITION TO STEWARTS
OBJECTION TO ORDER RE
MOTION FOR BILL OF
PARTICULARS (ECF No. 658)

CERTIFICATION: This Response is timely filed.

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The United States, by and through the undersigned, respectfully submits its

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Response in Opposition to Defendant Steven A. Stewarts (Stewarts) Objection to

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Order Re Motion for Bill of Particulars (ECF No. 658) (hereinafter Objection).

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For the reasons explained below, the Order should be affirmed as correct in law and

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in fact.

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BACKGROUND

Stewart objects to United States Magistrate Judge (hereinafter Magistrate

Judge) Peggy Leens Order of August 18, 2016, denying Stewarts Motion for a Bill

of Particulars (ECF No.551) (hereinafter Motion), the denied Motion containing

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in the Superseding Indictment. The government recognizes that the charges and

allegations in this case are well-known to the Court and, thus, need not be repeated

here, except to emphasize that the Superseding Indictment in this case is 63-pages

long and alleges a great amount of detailed information about the events leading to

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and including the assault and extortion of federal officers on April 12, 2014 a fact
that Stewart conveniently ignores in his instant Objection.
By way of further background, the government proffers as follows. To date,
the government has produced over 17,000 pages of documents, approximately 1.4
terabytes of electronically stored information consisting of hundreds of hours of
audio and video recordings and at least 23 social media search warrant returns,
consisting of over 250,000 pages of digital documents. With its disclosures, the

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government provided the defendants with a detailed index describing the

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documents and electronic files produced and their location.

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The Magistrate Judges Order fulsomely and accurately recounts the

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procedural history of this case leading to the entry of the Order. The government

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adopts and incorporates in full the Orders account in that regard for the purposes

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of this Response. ECF No. 637, Sections I, at 1-6. The government further adopts

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and incorporates herein in full, all of the facts and arguments advanced in its

Response in Opposition to the Motion. ECF No. 580.

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In denying Stewarts Motion, the Magistrate Judge made the following

findings, among others:

The language of the Superseding Indictment is detailed and clear,

and when read as a whole, it sufficiently informs Stewart of the

charges against him (ECF No. 637 at 12).

conspirator, armed gunman, and follower who threatened and

used force and violence to prevent law enforcement officers from

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discharging their duties and coerced the officers consent to abandon

Cliven Bundys cattle (id).

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Although not containing many specific references to Stewart, the

Superseding Indictment refers to gunmen at least 72 times and

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followers at least 80 times (id).

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The Superseding Indictment expressly alleges that Stewart was co-

The 63-page Superseding Indictment adequately provides Stewart

with notice of the charges (id).

Given the ample discovery disclosures Stewart (and the other

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defendants) has received, which exceed the requirements set by the

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Federal Rules of Criminal Procedure and the Jencks Act, the denial
of a bill of particulars will not result in prejudice or surprise at trial

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(id at 13).

Stewarts (and other defendants) questions plainly seek evidentiary

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details and what amount to a roadmap of the governments case

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they do not justify a bill of particulars (id).

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LEGAL STANDARD

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A.

Standard of Review.

A judge may designate a magistrate judge to hear and determine any

pretrial matter pending before the court . . . . 28 U.S.C. 636(b)(1)(A) (omitting

exceptions not relevant here). A judge of the court may reconsider any pretrial

matter . . . where it has been clearly shown that the magistrate judges order is

clearly erroneous or contrary to law.

pretrial matter, the district court reviews factual determinations under the clear

error standard, while it reviews legal determinations de novo to determine whether

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they are contrary to law. Perry v. Schwarzenegeri, 268 F.R.D. 344, 348 (N.D. Cal.

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2010).

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Id; accord LR 1B 3-1. In reconsidering a

Under the highly deferential clear error standard, a district court should
affirm a magistrate judges factual determinations unless it is left with the definite
and firm conviction that a mistake has been committed. United States v. Overton,
573 F.3d 679, 688 (9th Cir. 2009) (citations omitted).

Where there are two

permissible views of the evidence, the factfinders choice between them cannot be
clearly erroneous. United States v. Elliott, 322 F.3d 710, 715 (9th Cir. 2003)
(emphasis added). The reviewing court may not simply substitute its judgment for
that of the magistrate judge. Ideal Electric v. Flowserve Corp., 230 F.R.D. 603, 606

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(Nev. 2005) (citing Grimes v. City and County of San Francisco, 951 F.2d 236,241

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(9th Cir. 1991)).

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B.

Bill of Particulars.
Rule 7(f) of the Federal Rules of Criminal Procedure provides for a

bill of particulars:
The court may direct the government to file a bill of particulars. The
defendant may move for a bill of particulars before or within 14 days
after arraignment or at a later time if the court permits. The
government may amend a bill of particulars subject to such
conditions as justice requires.

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The purpose of a bill of particulars is threefold: (1) to inform the defendant of

the nature of the charge against him with sufficient precision to enable him to

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prepare for trial; (2) to avoid or minimize the danger of surprise at the time of trial;

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and (3) to enable him to plead his acquittal or conviction in bar of another

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prosecution for the same offense when the indictment itself is too vague, and

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indefinite for such purposes. United States v. Ayers, 924 F.2d 1468, 1483 (9th Cir.

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1991) (quoting United States v. Giese, 597 F.2d 1170, 1180 (9th Cir. 1979)). Where

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an indictment, itself, provides the details of the alleged offense, a bill of particulars

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is unnecessary. Giese, 597 F.2d at 1180 (citation omitted).

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The denial of a motion for a bill of particulars is within the discretion of the

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district court; its decision will not be disturbed absent an abuse of this discretion.

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United States v. Clay, 476 F.2d 1211, 1215 (9th Cir. 1973).

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discretion, the court should consider the totality of the information available to the

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defendants through the indictment and pretrial discovery and determine whether,

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in light of the charges the defendants must answer, the filing of a bill of particulars

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is warranted. United States v. Reddy, 190 F. Supp. 2d 558, 565 (S.D.N.Y. 2002);

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In exercising its

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United States v. Santiago, 174 F. Supp. 2d 16, 34 (S.D.N.Y. 2001) (court should also

consider the complexity of the offenses charged and the clarity of the indictment).

[T]he crux of whether to order the prosecution to produce a bill of particulars is not

whether it would be helpful to the defense, but whether it is necessary to adequately

defend against the charges at trial. United States v. Callahan, 2016 WL 1755811,

at *3 (D. Mont. May 2, 2016) (citing United States v. Giffen, 379 F. Supp. 2d 337,

346 (S.D.N.Y. 2004)). The defendants constitutional right is to know the offense

with which he is charged, not to know the details of how it will be proved. United

States v. Kendall, 665 F.2d 126, 135 (9th Cir. 1981) (citing United States v. Freeman,

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619 F.2d 1112, 1118 (5th Cir. 1980)).

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ARGUMENT
The Order is correct in fact and law and should be affirmed. It is correct in
fact because the Magistrate Judge carefully considered the detailed, 63-page,
Superseding Indictment and properly found that it provided Stewart with adequate
notice of the charges against him and that the indexed, voluminous discovery
mitigated the risk of surprise or prejudice to him that might result from the denial

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of a bill of particulars. It is correct in law because a detailed indictment precludes

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the need for a bill of particulars.

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Stewart presents nothing to rebut any of the Magistrate Judges factual

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findings, let alone demonstrate as he must that the judge clearly erred in making

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them. The Magistrate Judge reviewed the Superseding Indictment and found that

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it was detailed and clear, sufficiently informing Steward of the charges against

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him. While Stewart claims that he simply seeks further evidentiary details (Mot.

at 5) about the charges, that does not show that the Magistrate Judge made a

mistake.

overlooked when reviewing the indictment or what it is about that document that

the Magistrate Judge got wrong such that Stewart remains confused about the

nature of the charges against him.

He fails to show what if anything the Magistrate Judge supposedly

Moreover, Stewart fails utterly to address how his supposed quest for

information is not resolved by the massive disclosures in this case, which the

Magistrate Judge found to be ample and exceed[ing] the requirements set by the

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Federal Rules of Criminal Procedure and the Jencks Act. ECF No. 637, at 13. He
contends that learning the names of the assaulted law enforcement agents at the
time of trial will result in surprise (Mot. at 6), but fails to explain or demonstrate
why that is so in light of the status of discovery in this case.
As a threshold matter, the government has represented that it will disclose
the statements and memoranda of interviews of government witnesses 30 days
before trial. So, undoubtedly, Stewart will know the names of the victims then and
well before trial.

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More to the point, however, the disclosures include numerous audio and video

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files containing evidence of the words and images of the assault and extortion,

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showing the placement of the officers, how they were equipped and their positions

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in the wash. Stewart fails to show how the identities of the officer-victims are

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relevant to the assault and extortion charges against him or how the absence of a

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victims identifying information changes the nature of the evidence of the assault

and extortion charges.

Stewart also fails to show that the Magistrate Judge misapplied the law

when denying his Motion. Having found the Superseding Indictment to be clear

and detailed and discovery disclosures above and beyond the requirements of the

federal rules, the Magistrate Judges Order fell well within the bounds of judicial

discretion. To the extent that the indictment or information itself provides details

of the alleged offense, a bill of particulars is, of course, unnecessary. Giese, 597

F.2d at 1180 (citation omitted) (conspiracy to bomb federal facility, holding no abuse

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of discretion in denial of bill of particulars where discovery was extensive and the
indictment was not vague or overbroad).
Rather than demonstrating an abuse of discretion, Stewart quibbles with the
wording of the Order as if raising distinctions that really matter, contending that
he does not seek particulars on all of the alleged overt acts of the conspiracy (to
which, he concedes, he is not entitled), only particulars supporting the
governments theory vis a vis [ ] Stewart.

Mot. at 5.

But the Superseding

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Indictment manifestly alleges a conspiracy to assault and extort federal law

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enforcement officers and, as a part of that conspiracy, Stewart served as a gunman.

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There is, therefore, no mystery about the governments theory of its case vis

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a vis Stewart or any of the other defendants. And Stewart fails to explain how or

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why the conspiracy allegations in the indictment fail to inform him of the basis for

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his criminal liability or how the indictment, as alleged, precludes him from raising

double jeopardy post-trial.

Thus, aside from raising irrelevant trifles, Stewart presents nothing to show

that the Magistrate Judge manifestly made a mistake when finding that the

Superseding Indictment adequately informs him of the nature of charges and he

fails to show any abuse of discretion in denying the bill of particulars in light of the

detailed Superseding Indictment or fulsome disclosures in this case.

CONCLUSION

Wherefore, for all the foregoing reasons, the government respectfully

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requests that the Court overrule the Objection and enter an Order, affirming the
Order as correct in law and fact.
DATED this 19th day of September, 2016.

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Respectfully,

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DANIEL G. BOGDEN
United States Attorney

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//s//
______________________________
STEVEN W. MYHRE
NICHOLAS D. DICKINSON
Assistant United States Attorneys
NADIA J. AHMED
ERIN M. CREEGAN
Special Assistant United States Attorneys
Attorneys for the United States

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CERTIFICATE OF SERVICE
I certify that a copy of the foregoing GOVERNMENTS RESPONSE IN
OPPOSITION TO STEWARTS OBJECTION TO ORDER RE MOTION FOR
BILL OF PARTICULARS (ECF No. 658) was served upon counsel of record, via
Electronic Case Filing (ECF).
DATED this 19th day of September, 2016.

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/s/ Steven W. Myhre

______________________________
STEVEN W. MYHRE
Assistant United State Attorney

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