Case 2:16-cr-00046-GMN-PAL Document 658 Filed 09/01/16 Page 1 of 7

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601 S. Seventh St., 2nd Floor

Las Vegas, Nevada 89101
702-906-2411 Fax 866-299-5274

T ANASI L AW O FFICES

RICHARD E. TANASI, ESQ.

Nevada Bar No. 9699
TANASI LAW OFFICES
601 S. Seventh St., 2nd Floor
Las Vegas, NV 89101
Telephone: (702) 906-2411
Facsimile: (866) 299-5274
Email: rtanasi@tanasilaw.com
Attorney for Defendant
STEVEN STEWART

DISTRICT COURT

CLARK COUNTY, NEVADA

10 UNITED STATES OF AMERICA,

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Plaintiff,

Case No.:

2:16-cr-00046-GMN-PAL

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v.
DEFENDANT STEWARTS
OBJECTIONS TO ORDER RE
MOTION FOR BILL OF
PARTICULARS [Doc. 637]

14 STEVEN STEWART, et al
Defendants.

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Certification: These objections are timely.

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COMES NOW Defendant, STEVEN STEWART, by and through his attorney of record,

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RICHARD E. TANASI, ESQ., and hereby submits these Objections to the Honorable Judge

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Leens Order [Doc. 637] regarding Defendant Stewarts Motion for a Bill of Particulars. These

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objections are made and based on the following Memorandum of Law, Points and Authorities,

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all pleadings and papers on file herein and any oral argument requested by the Court at the time

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of hearing.

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DATED this 1st day of September, 2016.

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/s/ Richard Tanasi

RICHARD E. TANASI, ESQ
Attorney for Defendant STEVEN STEWART

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Case 2:16-cr-00046-GMN-PAL Document 658 Filed 09/01/16 Page 2 of 7

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MEMORANDUM OF POINTS AND AUTHORITIES

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On March 2, 2016, Steven Stewart was Indicted with a number of Co-Defendants on

multiple counts related to activities in April, 2014 in Bunkerville, Nevada. [Doc. 27]. Specific

to Mr. Stewart the government has alleged that he was a resident of the State of Idaho who

traveled to Nevada to commit the charged crimes. [Id. 6, para. 22]. The general assertion in the

Indictment is that Mr. Stewart was a gunman who threatened, impeded, intimidated, interfered

with, assaulted, and extorted federal law enforcement officers while in the performance of their

duties... [Id. 17, para. 71].

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601 S. Seventh St., 2nd Floor
Las Vegas, Nevada 89101
702-906-2411 Fax 866-299-5274

T ANASI L AW O FFICES

STATEMENT OF FACTS

A document provided at this point affording additional information related to Mr.

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Stewart was a memorandum filed on March 11, 2016 showing what is purported to be Mr.

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Stewart on a roadway holding a rifle. [Doc. 11]. It is unclear from the photos where the rifle

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was pointed, to what the rifle was pointed, if the rifle was even loaded, and what persons on the

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other end of the rifle saw that Mr. Stewart was present on the roadway. The government does

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not outline in the Indictment or memorandum any statements made by Mr. Stewart to any law

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enforcement officers on April 12, 2014 in Bunkerville.

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On August 18, 2016, the Honorable Judge Leen denied [Doc. 637] Mr. Stewarts

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underlying Motion for Bill of Particulars. These Objections are submitted pursuant to Local

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Rule LR IB 3-1(a) (mandating that any party wishing to object to a magistrate judges order on

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a pretrial matter must filed and serve written objections within 14 days after service of the

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order). See also 28 USC 636 (b)(1)(A) (A judge of the court may reconsider any pretrial

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matter [designated to a magistrate judge] . . . where it has been shown that the magistrate

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judges order is clearly erroneous or contrary to law).

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Case 2:16-cr-00046-GMN-PAL Document 658 Filed 09/01/16 Page 3 of 7

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II.

LEGAL ARGUMENT
A.

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provides notice of the charges. [Doc. 637, p.12, ll 19-20]. Rule 7(f) of the Federal Rules of
Criminal Procedure gives a court the authority to direct the filing of a bill of particulars by the

government. A bill of particulars is "intended to supplement the indictment by providing more

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601 S. Seventh St., 2nd Floor
Las Vegas, Nevada 89101
702-906-2411 Fax 866-299-5274

The Honorable Judge Leen found that the 63-page Superseding Indictment adequately

T ANASI L AW O FFICES

The Honorable Judge Leen Erred When the Court Found That the 63 Page
Indictment Adequately Provides Notice of the Charges to Defeat a Motion
for Bill of Particulars.

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detail of the facts upon which the charges are based." United States v. lnryco, Inc., 642 F.2d
290, 295 (9th Cir. 1981). By providing a defendant with the specifics of the charge, a bill of
particulars serves three purposes: (I) to aid a defendant in preparing for trial; (2) to eliminate

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surprise at trial; and (3) to protect against double jeopardy. See United States v. Burt, 765 F.2d

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1364, 1367 (9th Cir. 1985); United States v. Schembari, 484 F .2d 931, 934-35 ( 4th Cir. 1973).

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Close issues should be resolved in favor of additional disclosure. As the court stated in
United States v. Manetti, 323 F. Supp. 683 (D. Del. 1971):
[T]he bill of particulars is designed to fill any gap between the facts disclosed by
the indictment and that "set of facts" which will permit [the defendant] the
opportunity of preparation. What constitutes this "set of facts" in a given case,
however, is a somewhat elusive concept. Obviously, it is something other than
the minimum which would apprise the defendant of the charges against him and,
therefore, be sufficient to sustain an indictment. Otherwise, there would be no
purpose of a bill of particulars . . . . In the grey areas, the doubt must be resolved
in favor of disclosure and the conflicting concerns must yield to paramount
public interest in affording the accused a reasonable foundation for mounting a
defense.
Id. at 696.
A bill of particulars can eliminate uncertainties as to the government's theory of the case.

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United States v. Giese, 597 F.2d 1170, 1181 (9th Cir. 1979); United States v. Haskins, 345 F.2d

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111,114 (6th Cir. 1965); see also, United States v. Roth, 669 F. Supp. 1386, 1389 (N.D. Ill.

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Case 2:16-cr-00046-GMN-PAL Document 658 Filed 09/01/16 Page 4 of 7

1987) (RICO defendant entitled to bill of particulars specifying judges he allegedly attempted to

corrupt); United States v. Kole, 442 F. Supp. 852, 854 (S.D.N.Y. 1977) (conspiracy defendant

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particulars in a tax case regarding the amounts alleged to have been unreported and their source

to enable the defendant to meet the charges presented against him].

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601 S. Seventh St., 2nd Floor
Las Vegas, Nevada 89101
702-906-2411 Fax 866-299-5274

United States v. Earnhart, 683 F.Supp. 717, 718 -719, (W.D. Ark. 1987)[court ordered bill of

T ANASI L AW O FFICES

entitled to bill of particulars disclosing names of politicians to whom he allegedly paid money);

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A bill of particulars may provide the defendant with evidentiary details needed to
establish his defense. See United States v. Inryco, 642 F.2d. 290, 295 (9th Cir.1981) (holding
that a bill of particulars is intended to supplement the indictment by providing more detail of
the facts upon which the charges are based.)
The test in passing on a motion for bill of particulars should be whether it is necessary

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that defendant have the particulars sought in order to prepare her defense and in order that

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prejudicial surprise be avoided. C. Wright, Federal Practice and Procedure: Criminal 129

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(1969). A bill of particulars is available to any defendant who desires more information. Reid v.

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United States, 233 F.Supp 314, 316 (S.D.Ala. 1964).

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Although the granting or refusal of a motion for a bill of particulars rests within the

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sound discretion of the trial court, there is no discretion to disregard the requirements of the

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Sixth Amendment that the accused shall be informed of the nature and cause of the accusations

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against him fully enough to enable him to prepare his defense and definite and certain enough

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that he may be protected by a plea of former jeopardy against another prosecution for the same

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offense. See e.g. Williams v. United States, 164 F.2d 302, 304 (5th Circuit 1947). Clearly,

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under the laws of our nation, a defendant has a constitutional right to be informed of the nature

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and cause of the accusations. Sutton v. United States, 157 F.2d 661, 663 (5th Cir. 1946); United

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States v. Jaswal, 47 F.3d 539, 543 (2nd Cir. 1995) (quoting United States Constitution,

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Amendment VI).

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rule governing a request for a Bill of Particulars is to identify with sufficient particularity the

nature of the charge pending against him/her to prepare a defense and to prevent surprise at trial.

See United States v. Gordon, 780 F.2d 1165, 1172 (5th Cir. 1986); Russell v. United States, 369

U.S. 749 (1962) (invalid indictment cannot be cured by Bill of Particulars). A defendants need

to know the evidentiary details establishing the facts of her alleged offense is remedied by a

proper Bill of Particulars. United States v. Panzavecchia, 421 F.2d 440, 442 (5th Cir. 1970).

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601 S. Seventh St., 2nd Floor

Las Vegas, Nevada 89101
702-906-2411 Fax 866-299-5274

T ANASI L AW O FFICES

While it is not a cure for a deficient Indictment, the courts have made clear that the basic

In this case, Mr. Stewart seeks a bill of particulars for evidentiary details to inform him
of the charge against him with sufficient precision to allow him to prepare his defense, to

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minimize surprise at trial, and to enable him to plead double jeopardy in the event of a later

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prosecution for the same offense.

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As the Honorable Judge Leen noted in her 14-page Case Management Order, discovery

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is voluminous. [Doc. 321, p. 8 ll 24]. In a nutshell, the government has produced 1.4 terabytes

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of digital data, consisting of hundreds of hours of video and audio recordings made by law

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enforcement officers and agents involved in the events on the date charged in the indictment,

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April 12, 2014; and audio and video recordings posted on social media and other sources. [Id. at

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p. 8-9]. The bill of particulars sought will isolate and identify the relevant evidentiary details

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buried in the mountain of discovery in this case so as to avoid trial-surprise.

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As requested in his underlying Motion, Mr. Stewart seeks particulars on the alleged

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conspiracy overt acts. Essentially, Mr. Stewart requests the particulars supporting the

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governments theory vis a vis Mr. Stewart. [Doc. 551; p. 3-5; 25 requests]. Mr. Stewart does

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not seek particulars on all of the alleged overt acts. United States v. Giese, 597 F.2d 1170, 1180

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(9th Cir. 1979)[there is no general requirement that the government disclose in a bill of

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particulars all the overt acts it will prove in establishing a conspiracy charge.]; see also, [Doc.

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637 at p. 7 and 13 citing United States v. DiCesare, 765 F.2d 890, 898 (9th Cir. 1985)]. The

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Honorable Judge Leen erred in denying Mr. Stewarts Motion by overstating his request to

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include all overt acts.

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Case 2:16-cr-00046-GMN-PAL Document 658 Filed 09/01/16 Page 6 of 7

Further, Mr. Stewarts 25 requests for particulars not only request information on

conspiracy-related overt acts, but his requests also seek to understand the governments theory

as it pertains to his actions that allegedly support the non-conspiracy counts (i.e. the assault on

the a federal officer counts). Giese, as analyzed by the Honorable Judge Leen, applies to

conspiracy-related overt acts.

601 S. Seventh St., 2nd Floor

Las Vegas, Nevada 89101
702-906-2411 Fax 866-299-5274

T ANASI L AW O FFICES

Moreover, while the function of the bill of particulars in not ordinarily to provide a

defendant with names of government witnesses, the function of a bill of particulars is to avoid

surprise at trial. Yeargain v. United States, 314 F.2d 881, 883 (9th Cir. 1963). Given the

number of people at the protest, including the large number of law enforcement (whether state

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or federal), learning the alleged law enforcement agents who were purportedly assaulted at the

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time of trial will undoubtedly amount to prejudicial surprise. Likewise, the impound site in

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Nevada is vague and gives no proximity to Mr. Stewart.

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Lastly, the Court, like the government in its underlying response, erred in denying the

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request for particulars regarding forfeiture. The Sixth Circuit has held that the government was

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not entitled to property that was not listed in the indictment. United States v. Jones, 502 F.3d

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388, 394 (6th Cir. 2007)[If we find the Jones's mobile home was not permanently affixed to the

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real property, the Government is not entitled to it because it was not listed in the indictment.].

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Particularity as requested will alleviate any subsequent issue over what property is and is not

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subject to forfeiture in this case.

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evidentiary details needed to establish his defense. See United States v. Inryco, 642 F.2d. 290,

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295 (9th Cir.1981). Mr. Stewart requests more specific forfeiture allegations/evidence to

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prepare his forfeiture defense.

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Again, a bill of particulars may provide the defendant with

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III.

CONCLUSION
WHEREFORE, based on the foregoing argument and authorities, Defendant Steven

Stewart, respectfully prays that this Court enter an Order pursuant to Federal Rule of Criminal

Procedure 7(f), directing the Government to provide him with a Bill of Particulars responding to

Defendants requests outlined in Doc. 551, and for such other and further relief as this Court

may deem just and proper.

DATED this 1st day of September, 2016.

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601 S. Seventh St., 2nd Floor

Las Vegas, Nevada 89101
702-906-2411 Fax 866-299-5274

T ANASI L AW O FFICES

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/s/ Richard Tanasi

RICHARD E. TANASI, ESQ
Attorney for Defendant STEVEN STEWART

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 1st day of September, 2016, the undersigned served
the foregoing DEFENDANT STEWARTS OBJECTIONS TO ORDER DENYING MOTION
FOR A BILL OF PARTICULARS on all counsel herein by causing a true copy thereof to be
filed with the Clerk of Court using the CM/ECF system, which was served via electronic
transmission by the Clerk of Court pursuant to local order.

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/s/ Richard Tanasi

RICHARD E. TANASI, ESQ.

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