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UNITED STATES DISTRICT COURT DISTRICT OF MAINE UNITED STATES OF AMERICA ) ) ) ) ) ) ) ) )

v. LISA DELAURENTIIS, DEFENDANT

CRIMINAL NO. 07-74-B-H-16

DECISION AND ORDER ON DEFENDANT'S MOTION FOR BILL OF PARTICULARS AND MOTION TO SUPPRESS I. MOTION FOR BILL OF PARTICULARS The motion for bill of particulars on the conspiracy charge is DENIED. Chief Judge Woodcock of this District has recently set out the factors for considering such a motion, and I see no need to rework them:
Eclipsed by Rule 16 discovery requirements, motions for bills of particulars are seldom employed in modern federal practice. When bills of particulars are pursued, they need only be granted if the accused, in the absence of a more detailed specification, will be disabled from preparing a defense, caught by unfair surprise at trial, or hampered in seeking the shelter of the Double Jeopardy Clause. Whether to grant a motion for a bill of particulars is left to the sound discretion of the district judge, whose decision will be reversed only for abuse of discretion. In exercising its discretion, the trial court will often consider whether the defendant has demonstrated "actual prejudice" from the indictment's lack of specificity; namely, specific evidence or witnesses that the lack of particularization prevented him from obtaining. An indictment that specifies the law that the defendant allegedly violated and provides a temporal framework in which certain conduct is alleged to have occurred is sufficient; "open-file" discovery may obviate the need for greater specificity.

United States v. Poulin, 588 F. Supp. 2d 64, 67 (D. Me. 2008) (internal quotations and citations omitted); see also United States v. Sepulveda, 15 F.3d 1161, 119293 (1st Cir. 1993); United States v. Hallock, 941 F.2d 36, 39-41 (1st Cir. 1991). Here, DeLaurentiis fails to show "actual prejudice." The second superseding indictment specifies the law that DeLaurentiis allegedly violated (conspiracy to possess with the intent to distribute five kilograms or more of cocaine, fifty grams or more of cocaine base, and oxycodone), and provides a "temporal framework" in which the conduct allegedly occurred (between January 1, 2002 and June 1, 2005). It also lists the names of several alleged co-conspirators. The second superseding indictment is therefore sufficiently detailed. DeLaurentiis concedes that she has been given "massive discovery," although she claims that most of it does not pertain to her. Def.'s Reply in Support of Mot. for Bill of Particulars at 2 (Docket Item 630). But she will not be "disabled from preparing a defense, caught by unfair surprise at trial, or hampered in seeking the shelter of the Double Jeopardy Clause." See Sepulveda, 15 F.3d at 1192-93. II. MOTION TO SUPPRESS The issues on the motion to suppress are whether DeLaurentiis unambiguously invoked her right to counsel such that DEA questioning should have stopped and whether her statements to the agents were voluntary. I held an evidentiary hearing on May 29, 2009. Thereafter, the lawyers filed additional legal memoranda. I now GRANT the motion to suppress the statements that she made

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during interrogation because the agents denied DeLaurentiis's unequivocal request for counsel and because her statements were involuntary. Miranda v. Arizona, 384 U.S. 436, 469-73 (1966), held that a suspect undergoing custodial interrogation has the right to consult a lawyer and to have a lawyer present during questioning, and that law enforcement agents must explain this right to the suspect before questioning begins. If a suspect effectively waives this right to counsel after receiving the Miranda warnings, law enforcement agents may question the suspect until the suspect requests counsel. Then, interrogation must end until a lawyer has been made available to the suspect, or the suspect herself reinitiates discussion. Edwards v. Arizona, 451 U.S. 477, 483-85 (1981).1

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The United States Supreme Court very recently recapitulated these requirements in the somewhat different context of questioning after arraignment: Our precedents also place beyond doubt that the Sixth Amendment right to counsel may be waived by a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent. The defendant may waive the right whether or not he is already represented by counsel; the decision to waive need not itself be counseled. And when a defendant is read his Miranda rights (which include the right to have counsel present during interrogation) and agrees to waive those rights, that typically does the trick, even though the Miranda rights purportedly have their source in the Fifth Amendment[.] .... Edwards v. Arizona decided that once "an accused has invoked his right to have counsel present during custodial interrogation . . . [he] is not subject to further interrogation by the authorities until counsel has been made available," unless he initiates the contact. The Edwards rule is designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights. It does this by presuming his postassertion statements to be involuntary, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards. Montejo v. Louisiana, ___ U.S. ___, 2009 WL 1443049, at *6 (U.S. May 26, 2009) (internal quotations and citations omitted). Further: Under the Miranda- Edwards- Minnick line of cases (which is not in doubt), a defendant who does not want to speak to the police without counsel present need only say as much when he is first (continued on next page) 3

According to Davis v. United States, 512 U.S. 452 (1994), a suspect must articulate this invocation of the right to counsel "sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require the officers stop questioning the suspect." Davis, 512 U.S. at 459-61. Here, DEA agents arrested DeLaurentiis as she got out of her car at her residence in Juno Beach, Florida around 6 p.m. Tr. of Testimony of Lisa

DeLaurentiis at Suppression Hr'g 5:20-21, May 29, 2009 (Docket Item 657); Aff. of Steven Sicard

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