IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Criminal Action No. 1:07-cr-00090-WYD

FILED: October 22, 2007

UNITED STATES OF AMERICA,

                  Plaintiff,

v.

1. B&H MAINTENANCE & CONSTRUCTION, INC., a New Mexico corporation;
2. JON PAUL SMITH a/k/a J.P. SMITH; and
3. LANDON R. MARTIN,

                  Defendants.

UNITED STATES' RESPONSE TO "MOTION BY DEFENDANT SMITH FOR A BILL
OF PARTICULARS BASED UPON THE STATE OF DISCOVERY" [Docket # 85]

The United States hereby responds to Defendant Jon Paul Smith's ("Smith") Motion for a Bill of Particulars (Docket # 85). The Indictment and the extensive discovery afforded to the Defendants are sufficient to: fully apprise them of the nature of the charge against them; allow them to prepare their defenses; minimize surprise at trial; and plead double jeopardy if later prosecuted for the same offense. In addition, in response to motions for a Bill of Particulars previously filed by Defendants B&H Maintenance & Construction, Inc. ("B&H") and Landon Martin ("Martin")⁽¹⁾, the United States voluntarily provided additional information.⁽²⁾ Defendant Smith now requests virtually the same information sought by Defendants B&H and Martin.⁽³⁾ Therefore, a Bill of Particulars is not warranted in this case.

1. Defendant Smith's Request for Identification of Projects That Were Rigged

Defendant Smith first requests identification of the projects that were rigged by the defendants in this case. On August 1, 2007, in its response to the motions filed by Defendants B&H and Martin for a Bill of Particulars, (B&H Mot. Docket # 42 and Martin Mot. Docket # 48) the United States provided a Voluntary Bill of Particulars that included a list of the projects that were rigged by the conspirators in this case. See United States' Response Docket #59 at p. 6-7. For convenience, the United States reproduces the list here:

Bayfield 20" Main Loop
      (also identified as Bayfield Main Loop)
Salvador 10" Loop
      (also identified as Salvador SW Loop)

Buford Waytt GU No. 2
Lash Ute GU No. 2
Martinez BU/B No. 1
Schofield GU No. 2
Southern Ute 2-21X No. 2

Mayfield South Loop
Sauls Creek Loop

2. Defendant Smith's Other Requests For Particulars

Defendants Smith's request for particulars in paragraph 6 of his Motion is nearly identical to the request made by Defendant B&H in B&H Mot. Docket # 42 at ¶ 7, which was joined by Defendant Martin. Martin Mot. Docket # 48. The United States stands by its response to Defendant B&H's and Martin's motions for a Bill of Particulars. See United States' Response Docket # 59.

3. Conclusion

For the reasons stated above and in the United States Response Docket # 59, a Bill of Particulars is not warranted.

Respectfully submitted,

s/Diane Lotko-Baker DIANE C. LOTKO-BAKER s/Carla M. Stern CARLA M. STERN Attorneys, Antitrust Division U.S. Department of Justice Midwest Field Office 209 S. LaSalle Street Chicago, IL 60604 Tel.: (312) 353-7530 diane.lotko-baker@usdoj.gov carla.stern@usdoj.gov

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Criminal Action No. 1:07-cr-00090-WYD

FILED: October 22, 2007

UNITED STATES OF AMERICA,

                  Plaintiff,

v.

1. B&H MAINTENANCE & CONSTRUCTION, INC., a New Mexico corporation;
2. JON PAUL SMITH a/k/a J.P. SMITH; and
3. LANDON R. MARTIN,

                  Defendants.

CERTIFICATE OF SERVICE

I hereby certify that on October 22, 2007, I electronically filed United States' Response to "Motion by Defendant Smith for a Bill of Particulars Based Upon the State of Discovery" [Docket # 85] with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

gjohnson@hmflaw.com

hhaddon@hmflaw.com

pmackey@hmflaw.com

patrick-j-burke@msn.com

markjohnson297@hotmail.com

I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner indicated by the non-participant's name:

None.

Respectfully submitted,

s/Diane Lotko-Baker DIANE C. LOTKO-BAKER s/Carla M. Stern CARLA M. STERN Attorneys, Antitrust Division U.S. Department of Justice Midwest Field Office 209 S. LaSalle Street Chicago, IL 60604 Tel.: (312) 353-7530 diane.lotko-baker@usdoj.gov carla.stern@usdoj.gov

FOOTNOTES

1. Defendant B&H's Motion For a Bill of Particulars (Docket # 42) hereinafter referred to as B&H Mot. Docket # 42 and Landon Martin's Motion For Leave to Join in Defendant B&H's Motion For a Bill of Particulars and Supplemental Statement in Support Thereof (Docket # 48), hereinafter Martin Mot. Docket # 48.

2. See United States' Response to "Defendant B&H's Motion For a Bill of Particulars" (Docket # 42) and "Landon Martin's Motion For Leave to Join in Defendant B&H's Motion For a Bill of Particulars and Supplemental Statement in Support Thereof" (Docket # 48) (Docket # 59), hereinafter United States' Response Docket # 59.

3. The United States incorporates the United States' Response Docket #59 into this Response.