Like a game of 20 questions – the Warr Indictment

The popular guessing game, Twenty Questions, encourages creativity and deductive reasoning – and so does the indictment of Gulfport Mayor Brent Warr and his wife, Laura.

Under the circumstances, playing a guessing game with the USA doesn’t sound like a barrel of fun – nor does the need to guess exactly what the governments claims you’ve done qualify as any known form of justice.

Consequently, attorney Joe Sam Owen, counsel for Brent Warr, filed a Motion for Bill of Particulars.

Under Rule 7(f) of the Federal Rules of Criminal Procedure, the Court may direct the filling of a Bill of Particulars when necessary to prevent unfair surprise at trial. The Defendant joins herein his argument of law in accordance with U. S. v. Linn, 889 F.2d 1369 (5th Cir. 1988 ) which supports this Motion that the Bill of Particulars is necessary to aid in the preparation of the defense to Counts 13 – 16.

Owen understands games.  In fact, he played one rather well, as did Jackson attorney Frank Trapp, newly enrolled counsel for Mrs. Warr; but, that was 40 years and a hotty-toddy ago for these two former Ole Miss Rebels.  Trapp set the 1968 season record for tackles with more assists than than Patrick Willis (2005); and, true to form, he filed a Joinder to Gregory Brent Warr’s Motion for Bill of Particulars today.

The Warr’s request is not at all unreasonable.  After all, counts 13-16 of the Government’s indictment, the subject of the motion, are related to the Warr’s homeowner’s policy, a personal contractual relationship with a privately owned business – Lexington Insurance, a subsidiary of bailout beneficiary AIG.

It is charged in Paragraph 2, under Counts 13 – 16, that: “As part of the scheme
to defraud the defendants, Gregory Brent Warr and Laura Jean Warr made material misrepresentations to Lexington Insurance Company regarding personal property located in the insured dwelling.”

Owen and Trapp follow this statement with their argument:

The Accused cannot, based upon language in Paragraph 2, formulate a defense or prepare for the anticipated proof to be offered by the United States of America. To be sure, a reading of Paragraph 2 implicates five possible scenarios: (a) Does Paragraph 2 intend to charge that the Defendants misrepresented the quantity and/or value of the personal property located in the insured dwelling on August 29, 2005; (b) Does Paragraph 2 intend to charge that certain personal property claimed by the Accused to be located in the insured dwelling was not located within the insured dwelling on August 29, 2005; (c) Does Paragraph 2 intend to charge that the personal property never existed; (d) Does Paragraph 2 intend to charge that certain personal property represented to be located in the insured dwelling on August 29, 2005 was located elsewhere and was damaged or destroyed; (e) Does Paragraph 2 intend to charge that certain personal property represented to be located in the insured dwelling on August 29, 2005 was located elsewhere and was not damaged or destroyed?

I can’t imagine anyone reading those questions that would expect the government to oppose the motion; but, that’s exactly what the government has done.  Today, the USA filed the Government’s Response and Suggestions in Opposition to Defendant’s Motion for a Bill of Particulars!

Defendant Gregory Brent Warr… generally seeks discovery of the government’s entire case-in-chief under the guise of a request for greater specificity…As the subsequent case law makes clear, the overall thrust of defendant’s motion is contrary to the established purposes of a bill of particulars and it should therefore be denied.

…The purposes of a bill of particulars are (1) to apprise the defendant of the crime charged with sufficient particularity to enable him to prepare a proper defense; (2) avoid prejudicial surprise at trial, and (3) to enable him to plead his acquittal or conviction as a bar to a later prosecution for the same offense, where the indictment itself is too vague and indefinite for such purposes…

A bill of particulars is not a discovery tool…It should not be granted where it is intended to provide the defendant with details of the government’s case against him in advance of trial…

A real hell of a note, is it not, for the government to plan a courtroom surprise party for the defendants  –  obviously, expecting  they will come to court ready to play 20 questions.

However, it is within the Court’s discretion to grant or deny a Motion for a Bill of Particulars; and Owen joined by Trapp make a strong argument.

This Court should grant a Motion for Bill of Particulars when necessary to prevent unfair surprise at trial. It is imperative that this Court strike a prudent balance between the legitimate interests of the government and those of the Defendant(s).

If a Bill of Particulars will properly and fairly add clarification to an Indictment that, by its verbiage, potentially charges multiple scenarios, this Court should not hesitate in directing the filing of a Bill of Particulars in accordance Rule 7(f) of the Federal Rules of Criminal Procedure and U. S. v. Linn, 889 F.2d 1369 (5th Cir. 1988). (emphasis added)

As the Government mentions in its opposition, a bill of particulars is not a discovery tool.  However, Owen has also filed a Motion to Clarify and to Modify the Discovery Orders.

First, a simple definition of discovery –  you show me yours and I’ll show you mine – and, then,  a proper one:

the entire efforts of a party to a lawsuit and his/her/its attorneys to obtain information before trial through demands for production of documents, depositions of parties and potential witnesses, written interrogatories (questions and answers written under oath), written requests for admissions of fact, examination of the scene, and the petitions and motions employed to enforce discovery rights.

The theory of broad rights of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets from the other (except for constitutional protection against self-incrimination). Often much of the fight between the two sides in a suit takes place during the discovery period. (emphasis added)

With 668 cases listed under his name in the federal court case index, Owen clearly knows how to dot the “i” and cross the “t” and expects others to do likewise.  His related Discovery motion points out the the Court is using an outdated version of Rule 16 and request the Court clarify and modify the scheduling order to conform.

…A copy of Rule 16 of the Federal Rules of Criminal Procedure as it was couched prior to its amendment in December, 2002, is attached hereto as Exhibit A…By Amendment dated November 2, 2002, which became effective December 1, 2002, Rule 16 was recast…A copy of the current Rule 16 is attached hereto as Exhibit B…

Discovery in USA v Warr was set from January 28 to February 28 – the 30 day period following the issuing of the Order.

In that regard, we briefly return to the Government’s opposition to providing a Bill of Particulars:

Weighing against the defendant’s motion is the significant detriment to the government caused by a bill of particulars in that it would strictly limit the government’s proofs at trial.

This statement strikes me as the Government seeking a Perry Mason “gotcha” moment that seals the case against the defendants.  I hope that was not the intent.

When Department of Justice attorneys put a fellow citizen on trial, the public does not expect a victory but truth and justice – there is no bigger win.

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