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United States of America v. Howell Miller A/K/A "Charlie

October 9, 2012

UNITED STATES OF AMERICA
v.
HOWELL MILLER A/K/A "CHARLIE," A/K/A "C," A/K/A "C-ROCK," AND MICHAEL WALKER A/K/A "MIKEY" DEFENDANTS.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #:

ORDER

On May 7, 2012, defendant Howell Miller ("Miller") and his co-defendant, Michael Walker ("Walker"), were charged in an indictment with conspiring to distribute and possess with the intent to distribute 1,000 kilograms or more of marijuana in violation of 12 U.S.C. § 846. On July 27, 2012, Miller moved to dismiss the indictment, pursuant to Fed. R. Crim. P. 12(b)(3). On August 9, 2012, Miller filed additional motions for (1) discovery; (2) a bill of particulars; and (3) a James hearing to determine "whether independent evidence exists as to the conspiracy charged in the indictment and Mr. Miller's involvement therein," Hill Aff. at 8, July 27, 2012, Dkt. No. 23.

Miller's motions to dismiss the indictment and for pretrial relief are denied.

I. MOTION TO DISMISS

Miller argues that the indictment is deficient for failing to allege the essential facts constituting the charge. He contends that the indictment does not inform him of the nature and scope of the accusations against him. That is not the pleading standard, however. Criminal indictments must contain "a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). This rule requires only that an indictment "charge[ ] a crime with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events." U.S. v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992). "To satisfy this test, an indictment need do 'little more than track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.'" U.S. v. Rodriguez-Perez, No. 10 Crim. 905, 2012 WL 3578721, at *9 (S.D.N.Y. Aug. 16, 2012) (quoting U.S. v. Tramunti, 513 F.2d 1087, 1113 (2d Cir. 1975)).

In particular, an indictment charging violations of 12 U.S.C. § 846, as here, "'need only allege the existence of a narcotics conspiracy, a relevant time frame, and the statute alleged to be violated'" and "does not need to allege specific overt acts in furtherance of the conspiracy, because the conspiracy to distribute narcotics is itself a specific crime." U.S. v. Logan, 845 F. Supp. 2d 499, 515 (E.D.N.Y. 2012) (quoting U.S. v. Macklin, 927 F.2d 1272, 1276 (2d Cir. 1991) and citing U.S. v. Bermudez, 526 F.2d 89, 95 (2d Cir. 1975)).

The indictment against Miller provides the requisite information. It identifies the relevant statute, provides the approximate time frame ("at least in or about 2008, up to and including in or about March 2012" (Indictment at 1, Dkt. No. 12)), and identifies in approximate terms where the conspiracy took place ("in the Southern District of New York and elsewhere"

(Id.)). Miller is not entitled to more from the Government.*fn1 See U.S. v. Muyet, 945 F. Supp. 586, 599 (S.D.N.Y. 1996). The indictment sufficiently advises Miller of the charges against him. The Court denies Miller's motion to dismiss the indictment.

II. PRETRIAL MOTIONS

A. Discovery and Inspection

1. Information Concerning Prior or Subsequent Bad Acts

Miller requests that the Government state whether it intends to offer evidence of his prior or subsequent bad acts and, if so, to provide further information regarding those acts. The Government is required to provide Miller with "reasonable notice of the general nature of any such evidence . . . before trial," Fed. R. Evid. 404(b)(2), and has stated that it "intends to provide the requisite notice in advance of the November 20, 2012 final pretrial conference." Gov't's Opp'n at 7, Dkt. No. 29. Because such notice is typically provided two or three weeks before trial, the Government should provide notice by no ...


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