United States District Court, S.D. New York
OPINION AND ORDER
G. SCHOFIELD, District Judge
Arodal Anderson (“Defendant”) moves to dismiss
the indictment, or in the alternative, for a bill of
particulars and to sever his case from that of his
co-defendant, Joseph Law. For the reasons below,
Defendant's motions are denied.
Motion to Dismiss the Indictment
motion to dismiss the indictment is denied. The indictment is
neither legally insufficient nor unconstitutionally vague.
indictment is sufficient when it charges 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.” United States v. Yannotti, 541 F.3d
112, 127 (2d Cir. 2008) (quoting United States v.
Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992)).
Moreover, “an indictment need do little more than to
track the language of the statute charged and state the time
and place (in approximate terms) of the alleged crime.”
Id. (quoting United States v. Alfonso, 143
F.3d 772, 776 (2d Cir. 1998)). “An indictment need not
be perfect, and common sense and reason are more important
than technicalities.” United States v.
Stringer, 730 F.3d 120, 124 (2d Cir. 2013) (internal
quotation marks omitted).
indictment tracks the language of the statutes charged -- 21
U.S.C. § 846 and § 841 --and states the approximate
time and place of the alleged crime -- “[f]rom at least
in or about 2013, up to and including in or about October
2016, in the Southern District of New York and
elsewhere.” See Alfonso, 143 F.3d at 776
(explaining that an indictment need do little more than track
the language of the statute charged and state the time and
place of the alleged crime). The indictment also identifies
the narcotics involved in the alleged conspiracy. These facts
are sufficient to inform Defendant of the crime charged and
enable him to prepare his defense. See, e.g.,
United States v. Faison, 393 Fed. App'x 754, 757
(2d Cir. 2010) (summary order) (internal quotation marks
omitted) (affirming the district court's denial of a
motion to dismiss the indictment because “the
indictment . . . track[ed] the language of [the statute] . .
. [and] stated adequately the object of the conspiracy --
possessing cocaine with intent to distribute it.”).
Defendant's assertion that the indictment must state
specific facts is contradicted by the Second Circuit's
“repeatedly refus[ing], in the absence of any showing
of prejudice, to dismiss charges for lack of
specificity.” United States v. Sullivan, No.
102 Cr. 1144, 2004 WL 253316, at *2 (S.D.N.Y Feb. 10, 2004)
(quoting United States v. Walsh, 194 F.3d 37, 45 (2d
argument that the evidence against him is legally
insufficient to establish conspiracy also fails at this stage
of the proceedings. “Unless the government has made
what can fairly be described as a full proffer of the
evidence it intends to present at trial . . . the sufficiency
of the evidence is not appropriately addressed on a pretrial
motion to dismiss an indictment.” United States v.
Perez, 575 F.3d 164, 166-67 (2d Cir. 2009) (quoting
Alfonso, 143 F.3d at 776- 77). Here, the Government
maintains that it has not made a full proffer of the evidence
that it intends to introduce at trial. Nothing in the record,
such as fully stipulated facts or a Government affidavit,
suggests that the Government has made a full proffer. See
Alfonso, 143 F.3d at 776-77 (reversing dismissal of an
indictment based on sufficiency of the evidence where the
government had not made a full proffer of the evidence, and
comparing to United States v. Mennuti, 639 F.2d 107
(2d Cir. 1981), in which the government filed an affidavit
making a full proffer). Defendant's motion based on the
sufficiency of the evidence is denied as premature. The
motion to dismiss the indictment based on insufficient
pleading is also denied.
Motion for a Bill of Particulars
requests, in the alternative, a bill of particulars that
specifies: (1) the identities of persons involved in the
alleged Drug Trafficking Organization (“DTO”);
(2) details regarding the operation of the alleged DTO; and
(3) details regarding the dates and locations of
Defendant's involvement in the alleged DTO. Defendant is
not entitled to these particulars, at this time, beyond what
already has been disclosed.
Federal Rule of Criminal Procedure 7(f), a court “may
direct the government to file a bill of particulars.”
“A bill of particulars enables a defendant to prepare
for trial, to prevent surprise, and to interpose a plea of
double jeopardy should he be prosecuted a second time for the
same offense.” United States v. Ramirez, 609
F.3d 495, 503 (2d Cir. 2010) (internal quotation marks
omitted). It “is not a general investigative tool, a
discovery device or a means to compel the government to
disclose evidence or witnesses to be offered at trial.”
United States v. Abakporo, 959 F.Supp.2d 382, 389
(S.D.N.Y. 2013) (internal quotation marks omitted); see
also United States v. Bonventre, 646 Fed. App'x 73,
79 (2d Cir. 2016) (summary order) (internal quotation marks
omitted) (upholding the denial of a motion for a bill of
particulars because “such evidentiary detail is not the
function of the bill of particulars.”). A bill of
particulars “is required only where the charges of the
indictment are so general that they do not advise the
defendant of the specific acts of which he is accused.”
United States v. Chen, 378 F.3d 151, 163 (2d Cir.
2004) (internal quotation marks omitted). “Moreover, a
bill of particulars is not necessary where the government has
made sufficient disclosures concerning its evidence and
witnesses by other means.” Id. (internal
quotation marks omitted). “Whether to grant a bill of
particulars is generally a decision entrusted to the sound
discretion of the district court.” Ramirez,
609 F.3d at 502.
Superseding Indictment and the Government's additional
disclosures to Defendant sufficiently apprise Defendant of
the specific acts of which he is accused. The Superseding
Indictment alleges that, from at least or around 2013 until
around October 2016, Co-Defendant Joseph Law and Defendant
intentionally and knowingly conspired to distribute and
possess with the intent to distribute controlled substances.
The Superseding Indictment further alleges that, “[i]t
was a part and an object of the conspiracy that . . . the
defendants . . . would and did distribute and possess with
intent to distribute controlled substances . . . .”
Lastly, the Superseding Indictment alleges that Defendant
conspired with Joseph Law to distribute and possess with
intent to distribute “500 grams and more of mixtures
and substances containing a detectable amount of
cocaine.” The Superseding Indictment is supplemented by
discovery produced to Defendant, which the Government
represents as including, among other things, Drug Enforcement
Administration evidence vouchers and lab reports; subpoenaed
materials from third parties; subscriber information and toll
records; recordings of drug purchases; and the results of a
search of Defendant's cell phones. The Government also
represents that it provided search warrant affidavits that
describe its investigation and evidence, as well as specific
dates and times when Defendant communicated with his
co-defendant about the alleged conspiracy.
in this District have routinely denied requests for bills of
particulars, ” where, as here, the defendant seeks to
have the Government disclose the “wheres, whens, and
with whoms of the crime.” United States v.
Wey, No. 15. Cr. 611, 2017 WL 237651, at *19 (S.D.N.Y.
Jan. 18, 2017) (internal quotation marks omitted); see
also United States v. Torres, 901 F.2d 205, 234-35 (2d
Cir. 1990) (affirming denial of bill of particulars
requesting information about when the defendant was
“alleged to have joined” the narcotics
conspiracy, the identities of co-conspirators and the
“precise dates and locations” of overt acts),
abrogated on other grounds by United States v.
Marcus, 628 F.3d 36, 41 (2d Cir. 2010); United
States v. Parris, No. 13 Cr. 17, 2014 WL 2745332, at *5
(S.D.N.Y. June 17, 2014) (citation omitted) (“It is
well settled that defendants need not know the means by which
it is claimed they performed acts in furtherance of the
conspiracy nor the evidence which the Government intends to
adduce to prove their criminal acts.”). As Defendant
has failed to justify his asserted need for a bill of
particulars, the motion is denied.