United States District Court, S.D. New York
THOMAS P. GRIESA, District Judge.
This is a prosecution for allegedly sending a threatening letter to a police officer. Defendant moves to dismiss the indictment pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B). Defendant also moves for an order directing disclosure of evidence that the government intends to introduce at trial pursuant to Federal Rule of Evidence 404(b), and an order directing disclosure of Brady evidence.
On February 14, 2014, the government indicted Alberto Nieves under 18 U.S.C. § 876(c), alleging that he sent a threatening letter to a member of the New York City Police Department ("NYPD"). The indictment contains the following language:
"From at least in or about July 2013 until at least in or about August 2013, in the Southern District of New York and elsewhere, ALEBERTO NIEVES, the defendant, knowingly and willfully did deposit in an authorized depository for mail to be sent and delivered by the Postal Service a communication containing a threat to kidnap or to injure a person, to wit, NIEVES sent a letter dated July 1, 2013 to a person at the New York City Police Department containing a threat to injure such person." Ind. ¶ 1.
At the time of the alleged crime, defendant was incarcerated at the Otisville Correctional Facility in Otisville, New York.
The indictment alleges that a letter from the Otisville facility arrived at a Bronx NYPD office around July 22, 2013. The letter was signed with defendant's nickname and addressed to a particular New York City police officer. The indictment cites extensive language from the letter, including the following:
"I'm gonna Tell you this straight the Fuck up, God Forbid anything happens to any of my Family members, because of the lies your trying to spread, its gonna cost me my life, but I'm gonna make sure you pay heavily. You should already know that I don't give a Fuck about you being a cop. You're the typical coward pig who hides behind a badge and a puny vest. Yes puny." Ind. ¶ 4(d)(ii). "Your Beef with me, leave it with me, and leave my Family out of it.
See you soon." Ind. ¶ 4(d)(v).
The indictment also alleges defendant sent hostile letters to a different police officer in 2006 and 2007. But the charges here rest on the letter quoted above, sent in 2013.
Motion to Dismiss
Defendant, relying on Federal Rule of Criminal Procedure 12(b)(3)(B), moves to dismiss the indictment on the grounds that it fails to state the elements of the charged offense, and fails to allege a factual predicate constituting the offense.
An indictment must be a "plain, concise and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). An indictment satisfies this requirement if it "first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 94 S.Ct. 2887, 2907 (1974). In this Circuit, an indictment need do little more than track the ...