would soon be in Buffalo, that CS-1 would inform Parker of the location
of the drug dealer's stash house on West Avenue in Buffalo and vehicle
description, and that the dealer would have money on him. Indictment
Count I, ¶¶ 9-11. At the December 22nd meeting, Parker said to CS-1,
"Let's do it, let's do it, let's do it." At the December 29th meeting,
Parker asked CS-1 to give him two days prior notice of the drug dealer's
expected visit "so I can get ready." Id., ¶¶ 9, 11.
On January 5, 2000, during a meeting with Parker at his residence in
Buffalo, CS-1 paid Parker another $1,000 in government funds for
providing CS-1 with sensitive law enforcement information. Indictment
Count IX; Amended Bill of Particulars No. 22; Complaint, ¶ 24.
After conducting surveillance on what they believed was the Jamaican
drug dealer s stash house at 929 West Avenue in Buffalo on January 7,
2000, Defendants Darnyl Parker, Ferby, and Rodriguez while acting in
their official capacity as Buffalo police officers, at about noontime,
made a warrantless and unauthorized forcible entry into the apartment at
the purported drug dealer's stash house intending to steal cash and
property belonging to the dealer, during which entry they stole a gold
watch and a gold ring which had been secretly placed there by
investigators Indictment Count I, ¶ 17; Amended Bill of Particulars
No. 13. Subsequently, on January 10, 2000, at approximately 9 a.m., in
furtherance of the conspiracy, Ferby allegedly made a computer inquiry
regarding reported criminal activity at the 929 West Avenue address
through a federal government information data base using facilities at
the local DEA office. Id., ¶ 20; Amended Bill of Particulars No. 29.
After an unsuccessful attempt by Defendants Parker and Hill to effect a
further unlawful reentry into the West Avenue stash house, which took
place on January 15, 2000, Parker met with CS-1 on January 24, 2000 at
which time Parker requested CS-1 inform him when the "Jamaican" drug
dealer would be in Buffalo so that Parker "can have [his] people ready."
Indictment Count I, ¶¶ 25-27. Parker again met with CS-1 to ascertain
when the drug dealer would arrive in Buffalo and was told by CS-1 that
the drug dealer would be at a particular location in the City of Buffalo
on February 13, 2000. Id., ¶¶ 29, 30.
On February 13, 2000, after surveillance of the alleged drug dealer,
then unknown to Defendants to be an undercover agent with the Federal
Bureau of Investigation ("FBI"), Kevin White ("Agent White"), Defendants
Darnyl Parker, Ferby, Rodriguez, and Hill, acting in their official
capacity as Buffalo police officers and believing Agent White to be the
"Jamaican" drug dealer previously identified by CS-1, stopped, detained
and searched Agent White, and his vehicle, eventually robbing Agent White
of $36,442 in government funds which Defendants then believed to be
proceeds of narcotics trafficking by White, posing as the Jamaican drug
dealer previously described to Defendants by CS-1. Indictment, ¶ 33.
Defendants' stop, search, and seizure of White, and the robbery took
place early in the evening on February 13th in a public parking lot at the
corner of Elmwood Avenue and Allen Street in Buffalo. Amended Bill of
Particulars No. 13.
According to the Indictment, Defendants never officially reported the
stop of Agent White nor the seizure of the money from White, nor did
Defendants inventory the money, turn it in to the Buffalo Police
Department as evidence, give White a receipt for the money taken from
him, or arrest White as a narcotics trafficking suspect. Indictment Count
I, ¶¶ 36, 39. Instead. Defendants converted the funds for
their own purposes or those of another person. Id., ¶ 38. It is also
alleged that when Defendants stopped and robbed White, the fact that they
were armed facilitated their ability to threaten White, and to
successfully complete the planned robbery. Id., ¶ 4.
The Defendants' burglary, and attempted break-in, at the West Avenue
apartment were the subject of video and audio surveillance. Complaint,
¶¶ 26, 31. The stop, detention, search and seizure of money from Agent
White on February 12, 2000 was also monitored by surveillance along with
intercepts of Defendant Parker's cellular telephone conversations with
his three co-conspirators. Complaint, ¶¶ 53, 54 n. 6, 63. Most of the
conversations between Defendant Darnyl Parker and CS-1 were consensually
recorded by the investigators. Id., ¶ 3.
For CS-1's assistance in setting up Defendants' scheme to rob the
"Jamaican" drug dealer, Darnyl Parker allegedly gave CS-1, $7,000, on
February 14, 2000, at a meeting at Parker's residence, as his share of
the robbery proceeds. Indictment Count I, ¶ 35; Complaint, ¶ 65.
At that time, Parker asked CS-1 to sell some cocaine to Parker's son,
co-defendant William Parker, and CS-1 indicated he would contact Parker
in the future to arrange for a cocaine distribution to William Parker.
Indictment Count XI; Complaint, ¶ 65.
Allegedly, Darnyl Parker again met with CS-1 on, Tuesday, February 22,
2000 at which time CS-1 told Parker that William Parker should arrange to
pay CS-1 some money toward the purchase of cocaine if William Parker still
was interested. Indictment Count XI; Complaint, ¶ 68. Darnyl Parker
told CS-1 to contact him that Friday to arrange for making the payment.
Complaint, ¶ 68. Darnyl Parker eventually telephoned CS-1 on Monday,
February 25, 2000, and, later that day, phoned Reno Sayles, a relative
and co-defendant in Count XI, to contact Parker regarding arranging for
the cocaine sale to William Parker. Indictment Count XI; Complaint,
¶¶ 69. 70. At about 3 p.m., Darnyl Parker, William Parker, Reno Sayles
and CS-1 met at Darnyl Parker's residence at which time Darnyl Parker
placed an order with CS-1 for one half of a kilogram of cocaine for Sayles
and William Parker, and gave CS-1, $6,600, one-half of the total price,
as an advance payment. Indictment Count XI; Complaint 73.
1. Defendants' Motion to Dismiss for Violation of Fed.R.Crim.P. 7(c)(1)
and the Sixth Amendment.
Defendants move to dismiss Counts I, II, and IV-XI as insufficiently
pleaded in violation of Fed.R.Crim.P. 7(c)(1) and constitutional
requirements for federal indictments. Defendants' Motion ¶¶ 13-30
(Count I); Id., ¶ 36 (Count II); Id., ¶¶ 55-57 (Count IV); Id.,
¶¶ 58-63, 65-69 (Count V); Id., ¶¶ 70-75 (Count VI); Id., ¶¶
83-86 (Count VII); Id., ¶¶ 87-88 (Counts VIII & IX); Id., ¶¶
97-98 (Count X); and Id., ¶ 101 (Count XI).
An indictment is facially valid and constitutionally sufficient if it
contains the elements of the offense charged, fairly informs a defendant
of the charges against which he must defend, and enables a defendant to
plead double jeopardy in bar of further prosecution. Hamling v. United
States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United
States v. Hernandez, 980 F.2d 868, 871 (2d Cir. 1992). Further, a federal
indictment need only track the language of the statute which defines the
charged offense and, if necessary to apprise the defendant of the nature
of the accusation against him, state the time and place of the alleged
approximate terms. Russell v. United States, 369 U.S. 749, 765, 82 S.Ct.
1038, 8 L.Ed.2d 240 (1962); United States v. Covino, 837 F.2d 65, 69 (2d
Cir. 1988). Where an indictment tracks the statutory language, it should
nevertheless provide "facts and circumstances as will inform the accused
of the specific offence, coming under the general description, with which
he is charged." Hamling, supra, at 117-18, 94 S.Ct. 2887 (internal
citation and quotation marks omitted).
The form of the indictment is governed by Fed.R.Crim.P. 7(c)(1) and
requires that the indictment "be a plain, concise, and definite written
statement of the essential facts constituting the offense charged." It is
well settled that indictments which track the statutory language defining
an offense are, as a general rule, sufficient under Rule 7(c) so long as
its application to a particular defendant is clear. United States v.
Upton, 856 F. Supp. 727, 739 (E.D.N.Y. 1994). An indictment which complies
with Rule 7(c)(1) satisfies the Sixth Amendment's requirement that the
charge inform the defendant of the "nature and cause of the accusation."
Russell, supra, at 763-64, 82 S.Ct. 1038. Accord United States v. Walsh,
194 F.3d 37, 44 (2d Cir. 1999); Upton, supra at 738.
A fair reading of the challenged counts shows they all track the
language of the statutes upon which they are based and fairly apprise
Defendants of the essential facts of the alleged offenses, as well as the
nature and circumstances of the charges, as required by Fed.R.Crim.P.
7(c)(1) and the Sixth Amendment.
A. Count I — Conspiracy to Violate Civil Rights.
Count I provides 41 paragraphs of specific facts upon which the alleged
violation of 18 U.S.C. § 241 is based. As relevant, § 241 outlaws
conspiracies "to injure, oppress, threaten, or intimidate any person in
any state . . . in the free exercise or enjoyment of any right or
privilege secured . . . by the constitution." In sum, Count I alleges
Defendants agreed to violate the constitutional rights of supposed drug
dealers. Count I further specifies Defendants acted with an intent to
violate the Fourth Amendment right to be free of unreasonable searches
and seizures, and the Fourteenth Amendment right to freedom from a
deprivation under state law of liberty and property without due process.
As such, the Count fairly tracks the language of § 241, and provides
ample details of the way Defendants entered the conspiracy and acted in
furtherance of it, and therefore fairly alleges the nature and
circumstances of the offense charged. Count I is therefore not subject to
dismissal upon the grounds asserted by Defendants.
B. Count II — Conspiracy to Steal Government Property.
This count alleges Defendants conspired to commit a theft of government
property in violation of 18 U.S.C. § 641 and 371. As relevant, §
641 prohibits embezzlement. stealing, purloining, or knowing conversion
of government property. Section 371 punishes any conspiracy to "commit
any offense against the United States." Count II fairly tracks the
language of both the statutes, and together with the re-allegation of
paragraphs 4-41 of the Indictment with references to Count I, as the
required overt acts, it details the Defendants' entry into the alleged
scheme and the circumstances of Defendants' plan to steal property owned
by the Government. Count II thus contains a plain statement of the facts
underlying the charge, and adequately apprises Defendants of the nature
and circumstances of the offense against
them. As such, it is not subject to dismissal for insufficient pleading.
C. Count IV — Theft of Government Property.