The opinion of the court was delivered by: John F. Keenan, United States District Judge
Before the Court are Defendant's motions (i) to dismiss both charges against him on statute of limitations grounds; (ii) to dismiss the charge of conspiracy to commit murder on the ground of facial insufficiency; and (iii) to compel the Government to provide the defense with a bill of particulars. For the following reasons, Defendant's motions are denied in their entirety.
The instant 116-count indictment, which is the ninth superseding indictment filed in this case (the "S9 Indictment"), was returned on January 21, 1997. Defendant Andrew Bennett ("Bennett" or "Defendant") is charged in two counts: Count Eight, which charges Bennett with conspiracy to commit murder in furtherance of a racketeering enterprise, in violation of 18 U.S.C. § 1959(a)); and Count Eighty-Eight, which charges him with possession of a firearm in furtherance of the conspiracy, in violation of 18 U.S.C. § 924(c). The charges stem from the alleged assistance that Bennett rendered to the infamous Velasquez Organization, a drug syndicate headed by Ramon Velasquez that operated in the greater New York City area in the 1980s and 1990s. Specifically, the S9 Indictment alleges that "[i]n or about April 1991" Bennett and others conspired to murder "Victim #1." "Victim #1" was later identified in discovery as John Sutter, a criminal defense attorney who had represented an associate of Ramon Velasquez in a narcotics prosecution. Dissatisfied with Sutter's representation of his associate, Velasquez ordered the lawyer's assassination. After several failed attempts on Sutter's life, Velasquez allegedly hired Bennett to assassinate Sutter in exchange for a cash payment. Bennett, in turn, recruited another individual, Henry Barrington, to help with the job. Bennett and Barrington, who was armed with a loaded gun, allegedly went to Sutter's office with the intention of killing Sutter but did not ultimately do so.*fn1
The original indictment in this case was returned, sealed, on February 26, 1996. Bennett was not named in the original indictment. On April 10, 1996, a grand jury returned a sealed first superseding indictment (the "S1 Indictment"), in which Bennett was named as a defendant in the counts that related to the conspiracy to murder Sutter. The charges against Bennett in the S1 Indictment are identical to the charges in the S9 Indictment. The S1 Indictment was unsealed on June 25, 1996, and Bennett was arrested on that same day. On June 26, 1996, Bennett was released on bail, after posting a $100,000 bond. In September 1996, while on bail, Bennett fled this jurisdiction and remained at large for over ten years.
In December 2006, Bennett was apprehended in Jamaica and extradited to the United States.
(i) Statute of Limitations
Defendant moves, pursuant to Rule 12(b)(2) of the Federal Rules of Criminal Procedure, to dismiss both counts against him contained in the S9 Indictment on the ground that they are time-barred by the five-year statute of limitations.
An indictment in a non-capital case must be "found" "within five years . . . after such offense shall have been committed." 18 U.S.C. § 3282(a). An indictment is "found" when it has been returned by a grand jury and filed. United States v. Srulowitz, 819 F.2d 37, 40 (2d Cir. 1987). After an indictment is filed, the statute of limitations is tolled regarding the charges contained in the indictment. United States v. Ben Zvi, 242 F.3d 89, 98 (2d Cir. 2001).
At the outset, the Court must determine whether the S9 Indictment "relates back" to the S1 Indictment. For statute of limitations purposes, a superseding indictment is deemed to "relate back" to the original indictment as long as the superseding indictment does not materially alter the charges, see United States v. Salmonese, 352 F.3d 608, 622 (2d Cir. 2003), and as long as the delay between indictments does not substantially prejudice the defendant. United States v. Panebianco, 543 F.2d 447, 454 (2d Cir. 1976). Here, there is no dispute that the S9 Indictment "relates back" to the S1 Indictment. The charges relating to Bennett in the S9 Indictment are identical to the charges contained in the S1 Indictment; thus, there has been no material alteration of the charges. Further, the defense has not shown any prejudice that Bennett suffered as a result of the delay between the filing of the S1 and S9 Indictments. Thus, the S9 Indictment "relates back" to the S1 Indictment.
Next, I must determine whether the date the S1 Indictment was "found", for statute of limitations purposes, was the date of its return or the date of its unsealing. The defense asserts that the date the S1 Indictment should be deemed "found" is June 25, 1996, the date of its unsealing. "When, as here, a defendant challenges the decision to seal an indictment after it has been unsealed, the burden is on the Government to establish legitimate reasons for sealing the indictment. If the Government is unable to justify the sealing of the indictment, the expiration of the limitations period prior to unsealing would result in dismissal of the indictment, as it would in any case in which an indictment were untimely." United States v. Gigante, 436 F. Supp. 2d 647, 654-55 (S.D.N.Y. 2006) (citations omitted). One "obvious purpose" for sealing an indictment "'is to prevent the requirement of an indictment from serving as a public notice that would enable the defendant to avoid arrest.'" United States v. Davis, 598 F. Supp. 453, 455 (S.D.N.Y. 1984) (quoting United States v. Muse, 633 F.2d 1041, 1043 (2d Cir. 1980)). Further, an indictment may be deemed to be "found" on the date of its unsealing if the defendant can show that he suffered "substantial actual prejudice occurring between the date of sealing and the date of unsealing." United States v. Srulowitz, 819 F.2d at 40.
The defense argues that the Government has failed to show a legitimate purpose for the sealing of the indictment. The Government contends, and the Court agrees, that a legitimate purpose underlay its decision to seal the S1 Indictment, namely that of preventing Bennett from learning about the serious criminal charges pending against him and fleeing the jurisdiction. The Government's fear that Bennett would attempt to avoid prosecution was amply born out when the defendant, while released on bail in September 1996, absconded and then remained at large for over a decade. Moreover, the defense has failed to show that Bennett suffered substantial actual prejudice as a result of the delay between the return of the sealed indictment and its unsealing. Accordingly, I find that the date the S1 Indictment was "found", for calculation of the limitations period, was April 10, 1996.
Having determined the date on which the indictment was "found", I next must determine whether the indictment, on its face, sufficiently alleges that the charged conspiracy occurred within the applicable statute of limitations period, that is, within five years prior to April 10, 1996. Here, the indictment simply alleges that the conspiracy occurred "[i]n or about April 1991." The indictment does not state ...