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United States v. Concord Management & Consulting LLC

United States District Court, District of Columbia

May 24, 2019




         Before the Court is defendant Concord Management & Consulting LLC's Motion for a Bill of Particulars, Dkt. 104. For the reasons that follow, the Court will grant the motion in part and deny it in part.

         I. BACKGROUND

         The indictment charges Concord and others with conspiring to defraud the United States by impairing the lawful functions of three government agencies: the Federal Election Commission (FEC), the Department of Justice (DOJ), and the Department of State (DOS). Indictment ¶ 9.[1] According to the indictment, the conspirators' ultimate goal was to sow discord among U.S. voters through divisive social media posts and political rallies. Id. ¶ 6.

         That goal, by itself, was not illegal. But the indictment alleges that the means used to achieve it were. The conspirators apparently believed that their divisive messages would fall on deaf ears unless they were perceived to come from U.S. nationals. So the conspirators resolved to obscure their Russian identities and affiliations from the public. See, e.g., id. ¶¶ 4, 6-7. The problem is that various federal laws require foreign nationals to disclose certain information about themselves and their activities to U.S. agencies. Id. ¶ 1. As relevant here, the Federal Election Campaign Act (FECA) requires disclosure of certain political expenditures; the Foreign Agent Registration Act (FARA) requires persons who engage in certain activities on behalf of foreign entities to register as foreign agents; and DOS requires foreign nationals wishing to enter the United States to provide truthful answers to questions on visa applications. See Id. ¶¶ 25-27. If Concord and its conspirators had complied with these requirements, they would have had to disclose their Russian identities and affiliations to U.S. regulators, jeopardizing their ability to masquerade as U.S. nationals online.

         Faced with this obstacle, the defendants and their co-conspirators agreed to impair the lawful functions of the FEC, DOJ, and DOS in “administering federal requirements for disclosure of foreign involvement in certain domestic activities.” Id. ¶ 9; see also Id. ¶¶ 25-27 (describing the disclosure requirements administered by each agency). The defendants and their co-conspirators impaired these functions directly by failing to report expenditures under FECA, failing to register as foreign agents under FARA, and providing false statements on visa applications. Id. ¶ 7. And they did so indirectly by using virtual private networks (VPNs) to conceal the Russian origins of their online activity, id. ¶ 39, and by destroying evidence to avoid detection by U.S. investigators, id. ¶ 58. Meanwhile, the conspirators conducted their “information warfare” efforts online, using fictitious U.S. personas and stolen U.S. identities to inflame public opinion on various political issues and candidates. Id. ¶ 10.

         The indictment identifies fifteen of Concord's co-conspirators-two entities, Internet Research Agency (IRA) and Concord Catering, and thirteen individuals, id. ¶¶ 10-24-and provides a detailed description of the manner and means used to carry out the conspiracy, id. ¶¶ 29-58. It also lists at least 26 overt acts taken in furtherance of the conspiracy. See Id. ¶¶ 59- 85. Despite these details, Concord seeks further clarification of the 85-paragraph indictment through a bill of particulars.


         Under the Federal Rules of Criminal Procedure, an indictment need only include “a plain, concise, and definite written statement of the essential facts constituting the offense charged, ” Fed. R. Crim. P. 7(c), but a “court may direct the government to file a bill of particulars” clarifying the allegations in the indictment, id. 7(f). “A bill of particulars can be used to ensure that the charges brought against a defendant are stated with enough precision to allow the defendant to understand the charges, to prepare a defense, and perhaps also to be protected against retrial on the same charges.” United States v. Butler, 822 F.2d 1191, 1193 (D.C. Cir. 1987). “[I]f the indictment is sufficiently specific, ” however, “or if the requested information is available in some other form, then a bill of particulars is not required.” Id.

         “A bill of particulars properly includes clarification of the indictment, not the government's proof of its case.” United States v. Lorenzana-Cordon, 130 F.Supp.3d 172, 174 (D.D.C. 2015) (internal quotation marks omitted). “[A] bill of particulars is not a discovery tool or a device for allowing the defense to preview the government's evidence.” United States v. Brodie, 326 F.Supp.2d 83, 91 (D.D.C. 2004). In rare circumstances, a bill of particulars might be appropriate even if what it seeks is “an identification, within reasonable limits, of information [already] in the possession of the accused” or “information” that is “evidentiary in nature.” United States v. U.S. Gypsum Co., 37 F.Supp. 398, 402-03 (D.D.C 1941). But a bill of particulars is inappropriate if “by reasonable investigation in the light of information contained in the indictment, or otherwise furnished by the prosecution, ” the defendant could avoid “prejudicial[] surprise[].” Id. at 404.

         In deciding whether to order a bill of particulars, “the court must balance the defendant's need to know evidentiary-type facts in order to adequately prepare a defense with the government's need to avoid prematurely disclosing evidentiary matters to the extent that it will be unduly confined in presenting its evidence at trial.” United States v. Sanford Ltd., 841 F.Supp.2d 309, 316 (D.D.C. 2012) (internal quotation marks omitted). Ultimately, “the determination of whether a bill of particulars is necessary rests within the sound discretion of the trial court.” Butler, 822 F.2d at 1194.

         III. ANALYSIS

         Concord has submitted a total of fifty-one separate requests for clarification. Distilling those requests into categories, Concord seeks a bill of particulars that:

• Identifies all unindicted co-conspirators known to the Government;
• Identifies the particular conspirator or conspirators who completed each conspiratorial act alleged in the indictment;
• Identifies certain statutory or regulatory provisions and violations alleged or alluded to in the indictment;
• Identifies certain bank accounts, social media accounts, email accounts, and VPNs referenced in the indictment;
• Provides information about corporate entities referenced in ...

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